CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mai 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 16841/90                       by Harald PFARRMEIER                       against Austria         The European Commission of Human Rights sitting in private on 10 May 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 13 June 1990 by Harald Pfarrmeier against Austria and registered on 10 July 1990 under file No. 16841/90;         Having regard to:   -      the report provided for in Rule 47 of the Rules of Procedure of the Commission;   -      the observations submitted by the respondent Government on 21 February 1992 and the observations in reply submitted by the applicant on 5 October 1992 ;       -      the submissions of the parties at the oral hearing on 10 May 1993;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is an Austrian citizen who lives in Bregenz.   He is represented before the Commission by Mr. L. W. Weh, a lawyer practising in Bregenz.         The facts of the case, as submitted by the parties, may be summarised as follows:         On 11 June 1987 the applicant was fined by a penal order (Straferkenntnis) AS 9,000 with provision for 360 hours' detention in default for failure to submit to a breath test, contrary to Section 99 (1) (b) of the Road Traffic Act 1960 (Straßenverkehrsordnung).   He appealed to the Regional Government (Landesregierung) which, on 11 November 1987, rejected his appeal.         On 23 March 1988 the Administrative Court (Verwaltungsgerichtshof) quashed the decision of the Regional Government of 11 November 1987 and remitted the case to that authority. The Regional Government's second decision, of 23 December 1988, reduced the penalty from AS 9,000 to AS 5,000 and the period of imprisonment in default from 360 hours to 200 hours.         The applicant's complaint to the Constitutional Court (Ver- fassungsgerichtshof) was rejected on 10 March 1989 on the ground that it had no sufficient prospect of success and that the case was not outside the competence of the Administrative Court.   The Constitutional Court referred principally to its own case-law on Article 6 of the Convention in finding that the application had no sufficient prospect of success.         On 10 November 1989 the Administrative Court gave its second decision in the case.   It found that it was not prevented from considering that the factual position had been determined in a relevant and conclusive way, although it was not able to review whether the defence's version of the facts was correct.   Accordingly, the Administrative Court could not decide whether the applicant had or had not spoken of a "good session" (drinking).   As to the applicant's complaint that his lawyer had not been able to examine a witness, the court noted that an oral hearing was not a necessary part of the administrative criminal proceedings.   As to the alleged unconstitutionality of the Austrian reservation to Article 5 of the Convention, the Court referred to previous case-law.   The complaint was dismissed as a whole.     COMPLAINTS         The applicant alleges a violation of Article 6 of the Convention in that the administrative criminal proceedings brought against him were determined initially by the administrative authorities which did not constitute independent and impartial tribunals within the meaning of Article 6 para. 1 of the Convention, and subsequently by the Constitutional Court and the Administrative Court, the scope of whose review is not sufficient to comply with Article 6 of the Convention, and which cannot decide the case themselves.       He also makes specific complaints about the nature of the administrative authorities' examination of the case, including his inability to put questions to prosecution witnesses, and about the inevitably partial status of experts.       PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 13 June 1990 and registered on 10 July 1990.         On 16 October 1991 the Commission decided to request the parties to submit their written observations on the admissibility and merits of the application.         The respondent Government submitted their observations on 21 February 1992 and the applicant submitted his observations on 5 October 1992.         On 15 February 1993 the Commission decided to hear the parties as to the admissibility and merits of this case and Applications Nos. 15523/89, 15527/89, 15963/90, 16713/90 and 16718/90.   At the hearing the parties were represented as follows:   For the Government:   Ambassador F. Cede           Legal Adviser, Federal Ministry for Foreign                             Affairs, Agent   Ms. S. Bernegger             Federal Chancellery, Adviser   For the applicant:   Mr. W.L. Weh                 Representative       THE LAW         The applicant alleges violation of Article 6 (Art. 6) of the Convention.         The Government submit that the Austrian reservation to Article 5 (Art. 5) of the Convention prevents the Commission from examining the case.   They accept, however, that if the reservation does not prevent an examination of the case, then the review of administrative decisions by the Administrative Court and Constitutional Court was not sufficiently wide to comply with Article 6 para. 1 (Art. 6-1) of the Convention.   They add, in this respect, that although the offence for which the applicant was convicted under Section 99 (1)(b) of the Road Traffic Act 1960 (refusing to take a breath test) was not, as such, in force on the date of the reservation,   the law then in force did impose an obligation on road users to drive with reasonable consideration for other road users and to pay such attention as is required for the maintenance of order, safety and traffic efficiency.           The Government consider that the absence of an oral public and direct hearing is covered by the Austrian reservation to Article 6 (Art. 6) of the Convention.   They also point out that the applicant did not make a complaint about the absence of a hearing before the Administrative Court.         The applicant considers that the Austrian reservation to Article 5 (Art. 5) of the Convention is neither valid nor applicable in the present case.   He agrees that the scope of review by the Constitutional Court and Administrative Court does not comply with Article 6 (Art. 6) of the Convention. He considers that the reservation to Article 6 (Art. 6), if valid, is not applicable to the present proceedings.         In connection with Article 144 para. 2 of the Federal Constitution, the Government consider that, although that provision provides for non-acceptance of a constitutional complaint on grounds which were not in force in 1958 when the reservation was made, the possibility for the Constitutional Court to refuse to deal with appeals against decisions without giving detailed reasons is only a procedural limitation and not a substantive one.   They point out that any appeal lodged with the Constitutional Court against a decision is subject to comprehensive review.         The applicant in this respect considers that the limitation of the Constitutional Court's jurisdiction by Article 144 para. 2 of the Federal Constitution does not meet the requirements of the reservation, even if it applies.         The Commission finds that the application raises complex issues of law under the Convention, including questions concerning the Austrian reservations to Articles 5 and 6 (Art. 5, 6) of the Convention, the determination of which must be reserved for an examination on the merits.         The application cannot therefore be declared manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.         For these reasons the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.     Secretary to the Commission        President of the Commission            (H. C. KRÜGER)                     (C. A. NØRGAARD)