CEDH · CASELAW;REPORTS;ENG — 19 mai 1994

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 15523/89                          Peter Schmautzer                               against                               Austria                      REPORT OF THE COMMISSION                      (adopted on 19 May 1994)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-32) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-21). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 22-32). . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 33-58) . . . . . . . . . . . . . . . . . . . . .8        A.    Complaint declared admissible           (para. 33). . . . . . . . . . . . . . . . . . . . .8        B.    Points at issue           (para. 34). . . . . . . . . . . . . . . . . . . . .8        C.    As to the applicability of Article 6 of the Convention           (paras. 35-44). . . . . . . . . . . . . . . . . . .8                  a.    The existence of a "criminal charge"                     (paras. 35-39). . . . . . . . . . . . . .8                  b.    The reservation to Article 5 of the                     Convention                     (paras. 40-44). . . . . . . . . . . . . .9        D.    As to compliance with Article 6 para. 1           of the Convention                  a.    The administrative authorities                     (paras. 45-47). . . . . . . . . . . . . 10                  b.    The scope of review of the decisions of                     the administrative authorities                     (paras. 48-53)   . . . . . . . . . . . . 10             CONCLUSION (para. 54) . . . . . . . . . . . . . . 11                  c.    The absence of a hearing before the                     Administrative Court (para. 55) . . . . 11             CONCLUSION           (para. 56). . . . . . . . . . . . . . . . . . . . 12        E.    Recapitulation           (paras. 57-58). . . . . . . . . . . . . . . . . . 12   CONCURRING OPINION OF Mr. F. ERMACORA . . . . . . . . . . . 13   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 14   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 15   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is an Austrian citizen, born in 1942 and resident in Graz.   He is a lawyer.   3.    The application is directed against Austria.   The respondent Government were represented by their Agent, Ambassador F. Cede, head of the International Law Department at the Federal Ministry for Foreign Affairs.   4.    The case concerns administrative criminal proceedings against the applicant before administrative authorities with subsequent review by the Constitutional and Administrative Courts.   The applicant invokes Article 6 of the Convention.   B.    The proceedings   5.    The application was introduced on 26 May 1989 and registered on 20 September 1989.   6.    On 11 July 1991 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 8 November 1991 after an extension of the time-limit fixed for this purpose.   The applicant replied on 7 January 1992.   8.    On 15 February 1993 the Commission decided to hold a hearing of the parties in this case and in Applications Nos. 15527/89, 15963/90, 16713/90, 16718/90 and 16841/90.   The hearing was held on 10 May 1993. The Government were represented by Ambassador Cede and Ms. S. Bernegger of the Federal Chancellery.   The applicant appeared in person.   9.    On 10 May 1993 the Commission declared inadmissible the applicant's complaint under Article 6 of the Convention that he was required to wear a safety belt.   It declared the remainder of the application admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 19 May 1993 and they were invited to submit such further information or observations on the merits as they wished.   The Government submitted observations on 27 May 1993.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present :        MM.   C.A. NØRGAARD, President           A. WEITZEL           F. ERMACORA           G. JÖRUNDSSON           A.S. GÖZÜBÜYÜK           H.G. SCHERMERS           H. DANELIUS      Mrs. G.H. THUNE      Mr.   C.L. ROZAKIS      Mrs. J. LIDDY      MM.   M.P. PELLONPÄÄ           B. MARXER           G.B. REFFI           M.A. NOWICKI   13.   The text of this Report was adopted on 19 May 1994 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is :        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found           disclose a breach by the State concerned of its           obligations under the Convention.   15.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   17.   On 30 April 1986 the applicant was stopped by a policeman who found that the applicant was driving his car without wearing his safety belt.   By a penal order (Straferkenntnis) of 1 June 1987 the Federal Police Authority (Bundespolizeidirektion) in Graz imposed on the applicant a fine of AS 300, to be replaced by 24 hours' detention in case of default, for having committed the offence of non-compliance with the car-driver's duty to wear a safety belt according to Section III paras. 1 and 5 (a) of the 3rd amendment to the Motor Vehicles Act (Kraftfahrgesetz).   On 2 February 1988 the Provincial Governor (Landeshauptmann) of Styria confirmed this decision while reducing the fine to AS 200 (to be replaced by fourteen hours' detention in case of default).   18.   The applicant filed a complaint (B 821/88) with the Constitutional Court (Verfassungsgerichtshof) alleging, inter alia, a violation of his rights under Articles 5, 6 and 8 of the Convention.   19.   On 27 February 1989 the Constitutional Court rejected the complaint as lacking prospects of success.   It referred to an earlier decision of 3 December 1988 (B 176/87) where it had held that the imposition of administrative penal sanctions for failure to wear a safety belt was not unconstitutional and did not infringe the Convention.   As regards Articles 5 and 6, the Constitutional Court considered that the Austrian reservation concerning Article 5 applied, notwithstanding that the administrative offence in question had been introduced after the declaration of the reservation, because it was no more than a logical development (systemkonforme Fortentwicklung) of legal provisions which had existed at that time.   In this context the Constitutional Court referred to a number of offences included in the Motor Vehicles Act 1955 which also pursued the aim of protecting the life, health and safety of persons transported in motor vehicles.   20.   As regards Article 8 of the Convention, the Constitutional Court referred to Application No. 8707/79 (Dec. 13.12.79, D.R. 18, p. 255) where the Commission had denied an interference with private life by an obligation to wear safety belts.   21.   The applicant's case was referred to the Administrative Court (Verwaltungsgerichtshof), but the applicant did not pursue the proceedings before that Court.   B.    Relevant domestic law   The obligation to wear safety belts   22.   The duty to wear a safety belt was introduced in 1976 by Section III of the 3rd amendment to the 1955 Motor Vehicles Act. However, at that time it was deliberately decided not to make non-compliance with this duty an administrative offence.   The legal consequences of breaches of the duty were limited to civil law (coverage by insurance etc.).   It was only in 1984 that a further amendment to the Motor Vehicles Act made the failure to comply with this duty an administrative offence (Verwaltungsübertretung).   23.   As far as relevant, Section III of the Motor Vehicles Act (Amendment No. 3) Act 1976, as amended, reads as follows:   (German)        "(1) Ist ein Sitzplatz eines Kraftfahrzeugs nach      kraftfahrgesetzlicher Anordnung mit einem Sicherheitsgurt      ausgerüstet, so sind Lenker und beförderte Personen, die      einen solchen Sitzplatz benützen, je für sich zum      bestimmungsgemäßen Gebrauch des Sicherheitsgurts      verpflichtet.      ...      (5) Wer      (a) als Lenker eines Kraftfahrzeuges oder      (b) als mit einem Kraftfahrzeug beförderte Person die im      Abs. 1 erster Satz angeführte Verpflichtung nicht erfüllt,      begeht ... eine Verwaltungsübertretung, welche mit einer      Organstrafverfügung gemäß § 50 VStG 1950 mit einer      Geldstrafe von 100 S zu ahnden ist.   Wenn die Zahlung des      Strafbetrages ... verweigert wird ... ist von der Behörde      eine Geldstrafe bis zu 300 S, im Falle der      Uneinbringlichkeit eine Freiheitsstrafe bis zu 24 Stunden,      zu verhängen."   (Translation)        "(1) If a seat of a motor vehicle is equipped with a safety      belt in accordance with the requirements of the Motor      Vehicles Act, the driver and the transported persons who      use such a seat are obliged to wear the safety belt in      accordance with its intended purpose.      ...      (5)   Any person who fails to comply with the duty referred      to in      para. 1      (a) as the driver of a motor vehicle or      (b) as a person transported by a motor vehicle      commits an administrative offence to be punished, by way of      a provisional penal order within the meaning of Article 50      of the 1950 Code of Administrative Offences, with a fine of      AS 100.   If payment of the fine is refused ... the      authority [dealing with the case in ordinary proceedings]      may impose a fine of up to AS 300, to be replaced, in case      of default, by detention of up to 24 hours."   Jurisdiction of the Constitutional and Administrative Courts   24.   According to Article 144 of the Austrian Federal Constitution (Bundes-Verfassungsgesetz) an appeal can be filed with the Constitutional Court in which an applicant can allege a violation of his constitutional rights.   He can also complain that his rights have been violated on account of an unlawful ordinance, an unconstitutional Act, or an unlawful international treaty.   25.   Article 144 para. 2 of the Federal Constitution provides as follows:   (German)        "Der Verfassungsgerichtshof kann die Behandlung einer      Beschwerde bis zur Verhandlung durch Beschluß ablehnen,      wenn sie keine hinreichende Aussicht auf Erfolg hat oder      von der Entscheidung die Klärung einer      verfassungsrechtlichen Frage nicht zu erwarten ist.   Die      Ablehnung der Behandlung ist unzulässig, wenn es sich um      einen Fall handelt, der nach Art. 133 von der Zuständigkeit      des Verwaltungsgerichtshofes ausgeschlossen ist."   (Translation)        "The Constitutional Court may refuse to consider a case up      to a hearing by way of decision if it has no reasonable      prospect of success or it cannot be expected that the      decision will shed light on a problem of constitutional      law.   A refusal to consider is inadmissible if it concerns      a case excluded from the jurisdiction of the Administrative      Court by Article 133."   26.   According to Article 130 para. 1 of the Federal Constitution the Administrative Court will review allegations of unlawfulness of an administrative decision.   According to Article 130 para. 2, "no unlawfulness exists where legislation does not establish a binding rule on an administrative authority's conduct, leaving the determination of such conduct to the authority itself, and the authority has made use of this discretion in the spirit of the law" ("Rechtswidrigkeit liegt nicht vor, soweit die Gesetzgebung von einer bindenden Regelung des Verhaltens der Verwaltungsbehörde absieht und die Bestimmung dieses Verhaltens der Behörde selbst überläßt, die Behörde aber von diesem freien Ermessen im Sinne des Gesetzes Gebrauch gemacht hat").   The Administrative Court is also competent to deal with complaints that the administrative authority has violated its duty to take a decision (Article 132).   27.   Section 41 of the Administrative Court Act (Verwaltungs- gerichtshofgesetz) provides, so far as relevant:   (German)        "(1)   Der Verwaltungsgerichtshof hat, soweit er nicht      Rechtswidrigkeit wegen Unzuständigkeit der belangten      Behörde oder wegen Verletzung von Verfahrensvorschriften      gegeben findet (§ 42 Abs. 2 Z. 2 und 3) ..., den      angefochtenen Bescheid auf Grund des von der belangten      Behörde angenommenen Sachverhaltes im Rahmen der geltend      gemachten Beschwerdepunkte ... zu überprüfen.   Ist er der      Ansicht, dass für die Entscheidung über die      Rechtswidrigkeit des Bescheides in einem der      Beschwerdepunkte   ... Gründe massgebend sein könnten, die      einer Partei bisher nicht bekanntgegeben wurden, so hat er      die Parteien darüber zu hören und, wenn nötig, eine      Vertagung zu verfügen."   (Translation)        "(1)   In so far as the Administrative Court does not find      unlawfulness on account of a lack of jurisdiction of the      authority against which the appeal is directed or on      account of a violation of procedural provisions      (Section 42 (2) (2) and (3), ... the Court must examine the      contested decision on the basis of the facts as accepted by      the authority against which the appeal is directed within      the framework of the alleged complaint ...   If it is of the      opinion that reasons would be relevant for the decision on      the unlawfulness of the contested decision ... which were      so far not known to a party, it must hear the parties      thereupon and, if necessary, adjourn the proceedings."   28.   Section 42 (1) of the Administrative Court Act states that, save as otherwise provided, decisions of the Administrative Court shall either dismiss a complaint as ill-founded or quash the contested decision.   Apart from amendments to that part of Section 42 (1) which enumerates those proceedings to which it does not apply (not relevant in the present case) Section 42 (1) has been in force since at least 1946.   29.   As regards the decisions of the Administrative Court, Section 42 (2) of the Administrative Court Act provides, so far as relevant:   (German)        "(2) Der angefochtene Bescheid ist aufzuheben      1.    wegen Rechtswidrigkeit seines Inhaltes,      2.    wegen Rechtswidrigkeit infolge Unzuständigkeit           der belangten Behörde,      3.    wegen Rechtswidrigkeit infolge Verletzung von           Verfahrensvorschriften, und zwar weil           a)    der Sachverhalt von der belangten Behörde                in einem wesentlichen Punkt aktenwidrig                angenommen wurde oder           b)    der Sachverhalt in einem wesentlichen                Punkt einer Ergänzung bedarf oder           c)    Verfahrensvorschriften ausser acht gelassen                wurden, bei deren Einhaltung die belangte                Behörde zu einem anderen Bescheid hätte                kommen können." (Translation)        "(2) The contested decision must be quashed      1.    on account of the unlawfulness of its content,      2.    on account of unlawfulness due to the lack of           jurisdiction of the authority against which the           appeal is directed,      3.    on account of unlawfulness due to a violation of           procedural provisions in particular because           a)    the authority against which the appeal is                directed has determined the facts on an                important point contrary to the case-file, or           b)    the facts require to be supplemented on an           important       point, or           c)    procedural provisions have been disregarded                which, if taken into consideration by the                authority against which the appeal is directed,                could have led to a different decision of the                authority."   Hearings before the Administrative Court   30.   Section 39 (1) of the Administrative Court Act provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit.   Section 39 (2) provides as follows:   (German)        "Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages       nach Abs. 1 Z. 1 von einer Verhandlung absehen, wenn        1.   das Verfahren einzustellen (§ 33) oder die Beschwerde      zurückzuweisen ist (§ 34);      2.   der angefochtene Bescheid wegen Rechtswidrigkeit      infolge Unzuständigkeit der belangten Behörde aufzuheben      ist (§ 42 Abs. 2 Z. 2);      3.   der angefochtene Bescheid wegen Rechtswidrigkeit      infolge Verletzung von Verfahrensvorschriften aufzuheben      ist (§ 42 Abs. 2 Z. 3);      4.   der angefochtene Bescheid nach der ständigen      Rechtsprechung des Verwaltungsgerichtshofes wegen      Rechtswidrigkeit seines Inhaltes aufzuheben ist;      5.   weder die belangte Behörde noch etwaige Mitbeteiligte      eine      Gegenschrift eingebracht haben und der angefochtene      Bescheid      aufzuheben ist;      6.    die Schriftsätze der Parteien des      verwaltungsgerichtlichen      Verfahrens und die dem Verwaltungsgerichtshof vorgelegten      Akten des Verwaltungsverfahrens erkennen lassen, daß die      mündliche Erörterung eine weitere Klärung der Rechtssache      nicht erwarten läßt."   (Translation)        "Notwithstanding a party's application, the Administrative      Court may decide not to hold a hearing when        1.   The proceedings are to be discontinued (Section 33) or      the complaint is to be rejected (Section 34);      2.   The contested decision is to be quashed for      unlawfulness due to lack of jurisdiction on the part of the      authority challenged (Section 42 (2) (2));      3.   The contested decision is to be quashed for failure to      comply with procedural provisions (Section 42 (2) (3));      4.   The contested decision is to be quashed in accordance      with the constant case-law of the Administrative Court for      unlawfulness as to its contents;      5.   Neither the authority challenged nor any third party      has submitted a reply and the contested decision is to be      quashed;      6.   It is apparent from the written pleadings of the      parties to the proceedings before the Administrative Court      and from the files relating to the prior proceedings that      an oral hearing is not likely to contribute to clarifying      the case."   31.   Section 39 (2) (1) to (2) (3) were in force in 1958. Section 39 (2) (4) and (2) (5) were added in 1964 and Section 39 (2) (6) was added in 1982.   32.   Article 90 para. 2 of the Federal Constitution provides as follows:   (German)        "Die Verhandlungen in Zivil- und Strafrechtssachen vor dem      erkennenden Gericht sind mündlich und öffentlich.      Ausnahmen bestimmt das Gesetz."   (Translation)        "Hearings in civil and criminal cases by the trial court      shall be oral and public.   Exceptions may be prescribed by      law."   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   33.   The Commission has declared admissible the applicant's complaint that the proceedings in which he was convicted of failing to wear a safety belt did not comply with Article 6 (Art. 6) of the Convention.   B.    Points at issue   34.   The issues to be determined are:   -   whether there has been a violation of the applicant's right to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, and   -   whether the absence of a hearing before the Administrative Court violated Article 6 para. 1 (Art. 6-1) of the Convention.   C.    As to the applicability of Article 6 (Art. 6)      of the Convention        a.    The existence of a "criminal charge"   35.   Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows:        "In the determination of ... any criminal charge against      him, everyone is entitled to a fair and public hearing ...      by an independent and impartial tribunal established by      law."   36.   In the proceedings in the present case, the applicant was convicted of failing to wear a safety belt whilst driving a car. The administrative offence (Verwaltungsübertretung) was introduced in 1984. The applicant was fined AS 200, to be replaced by fourteen hours' detention in default.   37.   The applicant considers that the proceedings determined a criminal charge.   With reference to the case-law of the Convention organs, the Government do not contest the claim, but point to various features of this type of offence which, in their view, call for a differentiated approach to administrative criminal offences (Verwaltungsstrafsachen) when compared with ordinary, judicial criminal offences.   They note, for instance, that criminal records do not make reference to administrative convictions, that administrative criminal law is not directed against the commission of social wrong but serves the purpose of maintaining public order, and that the offences are of a minor and frequently purely formal character (non-registration for example).   38.   The Commission recalls that the European Court of Human Rights has applied the same test for the applicability of Article 6 (Art. 6) to regulatory offences (Ordnungswidrigkeiten) in Germany as to other types of proceedings (Eur. Court H.R., Öztürk judgment of 21 February 1984, Series A no. 73, p. 18, para. 50).   The Commission notes that administrative criminal proceedings in Austria are regulated by special legislative provisions which are separate from the ordinary criminal law. The proceedings are, however, expressly referred to as administrative "criminal" proceedings, and the Commission finds that this gives an indication of their nature.   The Commission also notes that, although the fine in the present case was very small, it carried with it the default penalty of 14 hours' detention.   The maximum period of detention in default was 24 hours.   39.   Taking into account the classification as "administrative criminal" of the offence in domestic law, the nature of the offence as failure to comply with a specific regulation, and the nature of the penalty, which included the possibility of imprisonment, the Commission finds that the proceedings at issue in the present case determined a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        b.    The reservation to Article 5 (Art. 5)           of the Convention   40.   The Government submit that the Austrian reservation to Article 5 (Art. 5) of the Convention prevents the Commission from entertaining this complaint.   This reservation provides as follows:        "The provisions of Article 5 (Art. 5) of the Convention      shall be so applied that there shall be no interference      with measures for the deprivation of liberty prescribed in      the laws on administrative procedure, BGBl. No. 172/1950,      subject to review by the Administrative Court or the      Constitutional Court as provided for in the Austrian      Federal Constitution."   41.   The applicant points out that the laws on administrative procedure BGBl. No. 172/1950 contain very few criminal offences, and not that at issue in the present case, such that the reservation cannot be relevant.   He also points out that the offence in the present case came into being long after the reservation was entered in 1958.   The Government consider that the reservation must be taken to apply not merely to actual measures of detention under Article 5 (Art. 5) of the Convention, but also to the proceedings which may lead to such detention, and they refer to Commission case-law to this effect (eg. No. 8998/80, Dec. 3.3.83, D.R. 32, p. 150).   42.   The Commission recalls that the European Court of Human Rights has recently had occasion to affirm the validity of the Austrian reservation to Article 5 (Art. 5) (Eur. Court H.R., Chorherr judgment of 25 August 1993, Series A no. 266, p. 35, para. 21).   In particular, the Court emphasised that the laws referred to in the reservation "lay down rules for the punishment of offences, setting out the punishable acts, the penalties incurred and the procedure to be followed" (p. 34, para. 18).   The Court continued that "the provisions to which the reservation applied in [that] case were all in force on 3 September 1958 ..." (ibid).   43.   The Commission notes that the duty to wear a safety belt at issue in the present case is comprised in the Motor Vehicles Act 1955.   That Act was in force in 1958, but it is not one of the laws referred to in the Austrian reservation to Article 5 (Art. 5) of the Convention.   Moreover, the specific amendment by which the applicant was penalised was introduced in 1984. Accordingly, neither the punishable act nor the penalty imposed were included in the laws referred to in the reservation. Finally in this respect, the Commission notes that the Austrian reservation to Article 5 (Art. 5) of the Convention in terms refers to Article 5 (Art. 5) and not to Article 6 (Art. 6) of the Convention.   44.   The Commission finds that that reservation cannot be said to apply in the present case.   Accordingly, the reservation does not prevent the Commission from examining the complaint under Article 6 (Art. 6) of the Convention.   D.    As to compliance with Article 6 para. 1 (Art. 6-1)      of the Convention        a.    The administrative authorities   45.   The applicant considers that the introduction of the Independent Administrative Tribunals is an indication that the Government have accepted that the system in force in his case did not comply with the Convention.   The Government do not submit that the administrative authorities which heard the applicant's case at first and second instance were comprised of independent judges, but they point to the procedural rules whcih apply before the administrative authorities.***   46.   The Commission finds that the administrative authorities which decided the applicant's case at first and second instance were not "independent and impartial tribunals" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Obermeier judgment of 28 June 1990, Series A no. 179, p. 22, para. 70; Zumtobel judgment of 21 September 1993, Series A no. 268-A, para. 29).   47.   The decisions of the administrative authorities may give rise to appeals to the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungsgerichtshof), but the proceedings for the consideration of such appeals will be consistent with Article 6 para. 1 (Art. 6-1) only if conducted before "judicial bodies that have full jurisdiction" (above-mentioned Zumtobel judgment, para. 29 with further reference).        b.    The scope of review of the decisions of the           administrative authorities   48.   The Commission must therefore examine the scope of review offered by the Austrian judicial authorities in this determination of a criminal charge in order to establish whether the applicant was able to take his case before a tribunal that did offer the guarantees of Article 6 (Art. 6) (above-mentioned Öztürk judgment, p. 22, para. 56).   49.   The applicant considers that where Article 6 (Art. 6) is applicable, the Convention requires a court which can determine all aspects of the case.   He points out that new evidence cannot be submitted to the Administrative Court by virtue of Section 41 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), that the Administrative Court does not permit the assessment of the evidence by the administrative authorities to be challenged, and that the Administrative Court can only quash decisions, and cannot substitute its assessment of the facts.   With regard to a question put on 10 May 1993 at the oral hearing by a Member of the Commission as to facts he wished to challenge, the applicant stated that he had not wanted to wear a safety belt as he had sun-burn at the relevant time, and he would have wished to have this finding made by a court, but he was constrained to abandon his complaint to the Administrative Court because this would have amounted to a challenge to the assessment of the evidence.   50.   The Government consider that in minor cases such as the present one, it is permissible for an independent tribunal - they underline that the independence and impartiality of the Administrative and Constitutional Courts are not in doubt - to review the facts as established by the administrative authorities.   They point out that the Administrative Court can quash the decision of the administrative authorities where the facts are in contradiction of the file, where a fundamental point of fact needs complementing, or where procedural provisions have been ignored which could have led to a different result.   At the hearing on 10 May 1993 they also considered that the applicant was not actually attempting to challenge any specific findings of fact.   51.    The Commission first finds that the Constitutional Court did not satisfy the requirement of "full jurisdiction".   It was able to inquire into the contested proceedings only from the point of view of their conformity with the Constitution (see also the above-mentioned Zumtobel judgment, para. 30).   The Government do not contend that the Constitutional Court has sufficient powers to examine all relevant facts.   52.   The Convention organs have considered the scope of review by the Administrative and Constitutional Courts of the decisions of Austrian administrative authorities several times (see, for example, the above-mentioned Obermeier and Zumtobel judgments, with further references).   All previous cases, however, concerned determinations of civil rights or obligations.   The Commission recalls that criminal charges, even indisputably minor ones, must be determined by a court which complies with Article 6 (Art. 6), even though it is not inconsistent with the Convention for prosecution and punishment of minor offences to be conferred in the first place on administrative authorities (see the above-mentioned Öztürk judgment, p. 21, para. 56).   53.   The Commission finds that whilst in civil matters a somewhat limited review of the decisions of administrative authorities may, in certain circumstances, satisfy the requirements of Article 6 (Art. 6) of the Convention (see, for example, the above-mentioned Zumtobel judgment, and Eur. Court H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263, p. 19, para. 58), criminal cases may require a different approach.    In particular, they involve rules directed towards all citizens in their capacity - in the present case as in the Öztürk case - as road users, which prescribe conduct of a certain kind and create sanctions for non-compliance.   Whilst the Commission well appreciates the advantages for the prosecution and the defence in dealing with minor criminal offences as expeditiously as possible, it finds that where a defendant desires a court to determine a criminal charge against him, there is no room for limitation on the scope of review required of the decisions of administrative authorities. Accordingly, the applicant in the present case, who wished to have determined by a court at least one question of fact, was entitled to, but did not have the benefit of, a court which could consider all the facts of the case.        CONCLUSION   54.   The Commission concludes, unanimously, that there has been a violation of the applicant's right to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        c.    The absence of a hearing before           the Administrative Court   55.   The Commission notes that the applicant did not, in the event, pursue his complaint before the Administrative Court. Accordingly, and in the light of its above finding that the applicant was denied his right to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds that no separate issue arises in connection with the absence of a hearing before the Administrative Court.        CONCLUSION   56.   The Commission concludes, unanimously, that the absence of a hearing before the Administrative Court raises no separate issue under Article 6 para. 1 (Art. 6-1) of the Convention.   E.    Recapitulation   57.   The Commission concludes, unanimously, that there has been a violation of the applicant's right to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 54).   58.   The Commission concludes, unanimously, that the absence of a hearing before the Administrative Court raises no separate issue under Article 6 para. 1 (Art. 6-1) of the Convention (para. 56).   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                    (Or. English)                CONCURRING OPINION OF Mr. F. ERMACORA        I agree with the Commission that the scope of review afforded by the Administrative Court does not comply with Article 6 para. 1 of the Convention.   However, the Commission finds that no separate issue arises in connection with the absence of a hearing before the Administrative Court.        I consider that a separate issue does arise in this case because the Austrian reservation to Article 6 has just such a separate wording and function from the other reservation which Austria has declared to Article 6 in general.        The difference lies in the fact that the Austrian reservation does not concern the administrative procedural law directly but Article 90 para. 2 of the Constitution which states that "Hearings in civil and criminal cases by the trial court shall be oral and public.   Exceptions may be prescribed by law".        This reservation is not at all applicable to procedures before the Administrative and Constitutional Courts because these courts do not deal with cases in civil and criminal cases but in cases of a public law character.   The reservation cannot be understood in any other way because the meaning of the reservation at the time it was made must be respected.        In 1958, when the reservation was made, Article 90 of the Constitution could not have the meaning which the Commission now gives to the reservation.   In 1958 - long before the Ringeisen case - Article 90 could in no way be applicable to procedures before the Constitutional Court because Article 90 (2) from a systematic point of view falls within the chapter of the Constitution dealing with civil and criminal law before the ordinary courts and not the part dealing with public law, which is regulated by Article 137 et seq. of the Constitution.        The Commission should have entered into this question which shows that the reservation is not at all applicable in the case. The interpretation of this reservation is contrary to the scope of the reservation and therefore the Commission should have applied Article 6 with reference to the misinterpretation of the said reservation.   The Commission should have considered this fact as a separate issue as to the interpretation of the Austrian reservation.   This brings me to the same result as the other members, but based rather on a different interpretation of the reservation.                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                      Item ___________________________________________________________   26.05.1989                Introduction of application   20.09.1989                Registration of application   Examination of admissibility   11.07.1991                Commission's decision to communicate                          the case to the respondent Government                          and to invite the parties to submit                          observations on admissibility and                &#