CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 25809/94                       by Michael HORST                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 28 February 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 11 October 1994 by Michael HORST against Austria and registered on 30 November 1994 under file No. 25809/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1942 and residing in Budapest.   Before the Commission he is represented by Mr. P. Hauser, a lawyer practising in Salzburg.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        On 3 March 1993 the Salzburg Federal Police Authority (Bundespolizeidirektion) convicted the applicant under the Road Traffic Act (Straßenverkehrsordnung) of having refused to undergo a breathalyser test and under the Motor Vehicles Act (Kraftfahrzeug- gesetz) of having failed to carry with him the registration certificate of his car.   It imposed fines of 9000 and 200 AS or eight days' and six hours' imprisonment in default respectively.        On 17   December 1993 the Salzburg Independent Administrative Panel (unabhängiger Verwaltungssenat), after an oral hearing, dismissed the appeal.        On 14 February 1994 the applicant lodged a complaint with the Administrative Court (Verwaltungsgerichtshof).        On 16 March 1994 the Administrative Court, relying on Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz), declined to deal with the applicant's complaint.   B.    Relevant domestic law   1.    Articles 129a and 129b in the version of the 1988 Amendment of the Federal Constitution (Federal Law Gazette No. 1988/685) provided for the institution of Independent Administrative Panels.        Independent Administrative Panels deal, inter alia, with appeals against penal orders issued by administrative authorities.   Their members are lawyers, appointed by the Regional Government for a term of office of at least 6 years.   They are independent and must not receive instructions.   They can only be dismissed from office upon a decision of the Independent Administrative Panel itself.        The Salzburg Regional Act of 4 July 1990 on the Independent Administrative Panel for Salzburg (Gesetz über den Unabhängigen Verwaltungssenat des Landes Salzburg, LGBl. 1990/65) repeats to a large extent the provisions of the Federal Constitution.   Section 3 para. 2 of the Act provides that members are initially appointed for a term of office of six years; renewal of appointment is for ten years.   2.    Section 33a of the Administrative Court Act (Verwaltungs- gerichtshofgesetz), as in force from 1 January 1991, reads as follows:        "The Administrative Court may decline to deal with a complaint      against a decision of an Independent Administrative Panel in an      administrative criminal case, if no prison sentence or a fine      exceeding AS 10,000 has been imposed and the Administrative      Court's decision would not involve the determination of a legal      question of fundamental importance.   A legal question of      fundamental importance is involved in particular if the      challenged decision of the Independent Administrative Panel is      at variance with the Administrative Court's case-law, if no such      case-law exists or if the legal questions at issue have not been      answered uniformly in the Administrative Court's case-law."   3.    Section 99 para. 1 (b) of the Road Traffic Act (Strassenverkehrs- ordnung) provides that whoever, when driving a car, refuses to undergo a breathalyser test or refuses an examination by a medical officer as to whether he is under the influence of alcohol commits and administrative offence, punishable by a fine between 8000 and 50000 AS or imprisonment in default of between one and six weeks.        Section 102 para. 5 (b) of the   (Kraftfahrzeuggesetz) provides that the driver of a car has to carry with him the registration certificate of his car.   Section 134 para. 1 provides that the failure to comply with the duties mentioned in the Motor Vehicles Act is an administrative offence punishable by a fine of up to 30000 AS.   COMPLAINT        The applicant complains that the Administrative Court's refusal to deal with his complaint violated Article 2 of Protocol No. 7.   THE LAW        The applicant complains that the Administrative Court's refusal to deal with his complaint violated Article 2 of Protocol No. 7 (P7-2), which, insofar as relevant, reads as follows:        "1.    Everyone convicted of a criminal offence by a tribunal      shall have the right to have his conviction or sentence      reviewed by a higher tribunal.   The exercise of this right,      including the grounds on which it may be exercised, shall      be governed by law."        The Commission, having regard to the nature of the applicant's offences as a failure to comply with a specific regulation, their qualification under domestic law as administrative criminal offences and the severity of the punishment involved, finds that the applicant was convicted of criminal offences within the meaning of Article 2 of Protocol No. 7 (P7-2) (see mutatis mutandis Eur. Court H.R., Öztürk judgment of 21 February 1984, Series A no. 73, p. 18, para. 50; Gradinger judgment of 23 October 1995, paras. 35-36, to be published in Series A no. 328-C).        The Commission observes that the Salzburg Federal Police Authority cannot be considered as a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see e.g. Eur. Court H.R., Gradinger judgment of 23 October 1995 loc. cit., para. 42; Schmautzer judgment of 23 October 1995, para. 34 to be published in Series A no. 328-A) and consequently not as a tribunal for the purpose of Article 2 of Protocol No. 7 (P7-2).   However, having regard to the criteria developed in its case-law by the Court for the qualification of tribunals under Article 6 para. 1 (Art. 6-1) of the Convention and the relevant domestic provisions on the institution of Independent Administrative Panels, the Commission finds that the Salzburg Independent Administrative Panel has to be regarded as a tribunal within the meaning of Article 2 para. 1 of Protocol No. 7 (P7-2-1) (see mutatis mutandis Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p.39, para. 95; Sramek judgment of 22 October 1984, Series A no. 84, pp. 17-18, paras. 36-38; Ettl judgment of 23 April 1987, Series A no. 117, pp. 17-19, paras. 34-41).        Article 2 of Protocol No. 7 (P7-2) thus applies to the applicant's convictions by the Salzburg Independent Administrative Panel and he was therefore in principle entitled to a review of his convictions or sentences by a higher tribunal.        The Commission recalls that reference to the grounds for review being governed by law in the second sentence of paragraph 1 of Article 2 of Protocol No. 7 (P7-2-1) clearly shows that the Contracting States have a discretion as to the modalities for the exercise of the right to review.   Thus, different rules govern review by a higher tribunal in the various Member States of the Council of Europe.   In some member States a person wishing to appeal to the highest tribunal must apply for leave to appeal.   Such a right to apply for leave to appeal to a higher court can in itself be regarded as a review within the meaning of Article 2 of Protocol No. 7 (P7-2) (No. 18066/91, Dec. 6.4.94, D.R. 77, p. 37; No. 20087/92, Dec. 26.10.95, D.R. 83, p. 5).   Decisions given by the Administrative Court pursuant to Section 33a of the Administrative Court Act may be equated to decisions given on applications for leave to appeal (No. 26808/95, Dec. 16.1.96, unpublished).        In the present case the Administrative Court, which had the competence to review the Independent Administrative Panel's decision of 17 December 1993, decided pursuant to Section 33a of the Administrative Court Act not to deal with the applicant's complaint.        In these circumstances the Commission does not find any appearance of a violation of the applicant's right under Article 2 of Protocol No. 7 (P7-2) to a review of his conviction or sentence by a higher tribunal.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)