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PENIAS AND ORTMAIR v. AUSTRIA - 35109/06 [2011] ECHR 1728 (18 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1728.html
Cite as:
[2011] ECHR 1728
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FIRST
SECTION
CASE OF PENIAS AND ORTMAIR v. AUSTRIA
(Applications
nos. 35109/06 and 38112/06)
JUDGMENT
STRASBOURG
18 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Penias and Ortmair
v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 35109/06 and
38112/06) against the Republic of Austria lodged with the
Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Austrian nationals, Mr
Jochen Penias and Mr Walter Ortmair (“the
applicants”), on 8 August 2006 and on 21 August 2006
respectively.
2. The
applicants were represented by Mr J. Postlmayr, a lawyer practising
in Mattighofen. The Austrian Government
(“the Government”) were represented by their Agent,
Ambassador H. Tichy, Head of the International Law Department at the
Federal Ministry for European and International Affairs.
3. The
applicants alleged in particular that the quashing of their
convictions by the Independent Administrative Panel upon an official
complaint by the relevant Federal Minister violated Article 6 of the
Convention and Article 4 of Protocol No. 7. They also complained
under Articles 6 and 13 about the length of the proceedings and lack
of an effective remedy in that respect.
On
18 June 2007 and 28 August 2008 respectively,
the President of the First Section decided to
give notice of the applications to the Government. It
was also decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant was born in 1979 and lives in St
Peter am Hart. The second applicant was born in 1955 and lives
in Maria Schmolln.
A. Mr Penias (application no. 35109/06)
On
14 February 2002 the Braunau District Administrative Authority
(Bezirkshauptmannschaft) informed the applicant that he was
suspected of having driven a motor vehicle under the influence of
alcohol contrary to sections 5(1) and 99(1)(a) of the Road Traffic
Act (Strassenverkehrsordnung) on 10 February 2002. The
breathalyser test had shown an alcohol level of 0.63 mg/l in his
breath.
In
his submissions of 1 March 2002 the applicant argued that allowance
should be made for 5% inaccuracy in the result of the breathalyser
test. This would lead to an established alcohol level of less than
0.60 mg/l and his conduct would therefore constitute a less serious
offence under Sections 5(1) and 99(1)(b) of the Road Traffic Act.
On
8 April 2002 the Braunau District Administrative Authority found the
applicant guilty of the offence of drunk driving under sections 5(1)
and 99(1)(a) of the Road Traffic Act, which provides for a fine
of between 872 and 4,360 euros (EUR). It imposed a fine of EUR 1,162
on him with seventeen days’ imprisonment in the event of
default. Having regard to the evidence before it, the District
Authority noted that the breathalyser at issue had been duly checked
by the Office of Weights and Measurements (Bundesamt für
Eich-und Vermessungswesen) and the test had been carried out
correctly. Referring to the Administrative Court’s case-law, it
noted that in such circumstances there was no need to make any
allowance for inaccuracy.
The
applicant appealed, repeating his argument as regards the alleged
imprecision of the breathalyser test.
After
holding a hearing, the Upper Austria Independent Administrative Panel
(Unabhängiger Verwaltungssenat) allowed the applicant’s
appeal in part. In its decision of 17 June 2002 it found that an
alcohol level in the applicant’s breath of 0.59 mg/l could be
considered to have been confirmed, since allowance had to be made for
a possible inaccuracy in the result of the breathalyser test.
Consequently, it convicted the applicant under sections 5(1) and
99(1)(b) of the Road Traffic Act, which provides for a fine of
between EUR 581 and EUR 3,633, and reduced the fine to EUR 1,000 with
fourteen days’ imprisonment in the event of default.
The
Independent Administrative Panel considered that the question about
possible inaccuracy of the breathalyser test was not a matter of law
but a matter of fact. There was documentary evidence, and also
evidence from an expert on weights and measurements, that for this
particular type of breathalyser 5% inaccuracy could not be ruled out.
The decision was served on the applicant on 24 July
2002. He did not lodge a complaint with the Constitutional Court
(Verfassungsgerichtshof) or the Administrative Court
(Verwaltungsgerichtshof) within the statutory six-week
time-limit. There was no other party to the proceedings who could
lodge a complaint.
On
7 August 2002 the Independent Administrative Panel’s decision
of 17 June 2002 was served on the Federal Minister for Traffic,
Innovation and Technology.
On
18 September 2002 the Federal Minister for Traffic, Innovation and
Technology lodged an official complaint (Amtsbeschwerde) under
Article 131 (1) subparagraph (2) of the Federal Constitution
(Bundes Verfassungsgesetz) against that decision, on the
ground that it contained an error of law. According to the
Administrative Court’s case-law the authority was obliged to
base its finding in respect of the blood alcohol level of the accused
on the result of the breathalyser test. In the present case, the
breathalyser had been duly examined by the Office for Weights and
Measurements and no doubts had been raised as to its correct
functioning.
On
18 February 2005 the Administrative Court, following the official
complaint, quashed the Independent Administrative Panel’s
decision of 17 June 2002 and referred the case back to it. It
found that the decision had applied the law incorrectly, since there
was no ground to make allowance for inaccuracy in the breathalyser
test.
In
his submissions of 15 March 2005 the applicant asserted that it would
violate the requirements of a fair trial if the quashing of the
Independent Administrative Panel’s decision following the
Federal Minister’s official complaint had any negative
consequences for him.
On
21 March 2005 the Independent Administrative Panel, noting that it
was bound by the Administrative Court’s legal view, dismissed
the applicant’s appeal against the Braunau District Authority’s
decision of 8 April 2002. Consequently, his conviction under
section 99(1)(a) of the Road Traffic Act was upheld.
As
regards the sentence, the Independent Administrative Panel noted that
section 99(1)(a) provided for a fine of between EUR 872 and EUR
4,360. It found that the minimum fine of EUR 872 with ten days’
imprisonment in the event of default was appropriate. It noted that
the applicant had no prior convictions, and also had regard to the
Constitutional Court’s case-law, according to which
unreasonably lengthy proceedings could lead to a reduction of the
sentence.
The
applicant lodged a complaint with the Constitutional Court, claiming
several violations of Article 6 of the Convention. He submitted, in
particular, that the proceedings had been unreasonably lengthy and
that he had no remedy in this respect; that the Administrative Court
and subsequently the Independent Administrative Panel had disregarded
the expert opinion and documentary evidence on the reliability of the
breathalyser test and that his conviction had thus been based on a
mere presumption.
Moreover,
the applicant alleged that the proceedings were unfair, and violated
the ne bis in idem principle, since the proceedings had been
reopened following the Federal Minister’s official complaint,
although the Independent Administrative Panel’s decision had
already become final. However the reopening was not justified by any
of the reasons mentioned in Article 4 § 2 of Protocol No. 7, and
the new proceedings had produced a result which was unfavourable to
him.
The
applicant also complained that he did not have a review by a higher
tribunal as required by Article 2 of Protocol No. 7, since the scope
of the Administrative Court review was limited. Finally, relying on
Article 1 of Protocol No. 1, he complained that the fixing of
sentences in administrative criminal law did not take offenders’
financial situations into account.
On
13 June 2005 the Constitutional Court dismissed the applicant’s
complaint for lack of prospects of success. On a request by the
applicant on 21 July 2005 it transferred the case to the
Administrative Court.
On
23 May 2006 the Administrative Court dismissed the applicant’s
complaint as being unfounded. This decision was served on the
applicant’s counsel on 21 June 2006.
B. Mr Ortmair (application no. 38112/06)
On
1 December 2001 the applicant was stopped by a traffic patrol and
asked to undergo a breathalyser test. The test showed an alcohol
level of 0.60 mg/l in his breath.
On
5 December 2001 the Braunau District Administrative Authority
informed the applicant that he was suspected of the offence of
driving under the influence of alcohol under sections 5(1) and
99(1)(a) of the Road Traffic Act, with a breath alcohol level of 0.60
mg/l. The authority requested the applicant to submit his defence.
By
a penal order of 17 January 2002 the District Administrative
Authority found the applicant guilty of drunk driving under sections
5(1) and 99(1)(a) of the Road Traffic Act and sentenced him to a fine
of EUR 872.07 with 13 days’ imprisonment in the event of
default. Noting that the breathalyser used had been correctly
calibrated, it dismissed the applicant’s argument that the
result of the breathalyser test could not be deemed to be completely
accurate and that allowance had to be made for possible calibration
and measurement errors. As to the fixing of the sentence, the
authority noted that despite its request the applicant had not
submitted evidence of his income. Thus, it based itself on his
unsupported submission that he had a net income of EUR 1,100 per
month and no maintenance obligations.
The
applicant appealed on 24 January 2002.
On
12 March 2002 the Upper Austria Independent Administrative Panel held
a hearing. It questioned the applicant and an expert on weights and
measurements. In addition it took documentary evidence, including
submissions from the Federal Office of Weights and Measurements
relating to the calibration of the breathalyser at issue, and an
expert opinion which had been published in a professional journal.
By
a decision of 19 March 2002 the Independent Administrative Panel
allowed the applicant’s appeal in part. Referring to the
evidence before it, the Independent Administrative Panel held that a
certain imprecision of the measurement could not be excluded. Even
making allowance for possible inaccuracy a breath alcohol level of
0.57 mg/l could be established beyond all doubt. The offence
therefore fell under section 99(1)(b) of the Road Traffic Act
and the fine was to be reduced to EUR 700, with nine days’
imprisonment in the event of default.
The
Independent Administrative Panel’s decision was served on the
applicant’s counsel on 3 April 2002. The applicant did not
lodge a complaint with the Administrative Court or the Constitutional
Court within the statutory six-week time-limit. There was no other
party to the proceedings who could lodge a complaint.
On
10 May 2002 the Independent Administrative Panel’s decision of
19 March 2002 was served on the Federal Minister for Traffic,
Innovation and Technology.
On
19 June 2002 the Federal Minister for Traffic, Innovation and
Technology lodged an official complaint under Article 131(1)
subparagraph (2) of the Federal Constitution, arguing that the
Independent Administrative Panel’s decision had applied the law
incorrectly in that it had made allowance for a possible inaccuracy
in the result of the breathalyser test.
The
Administrative Court served the official complaint on the applicant,
informing him that he could submit observations. The applicant did
not make use of this possibility.
On
25 January 2005 the Administrative Court, following the official
complaint, quashed the Independent Administrative Panel’s
decision of 19 March 2002 and referred the case back to it. It
observed that a driver who was required to undergo a breathalyser
test had the right to request that a blood sample be taken to confirm
the result, while the law and its own case law did not provide
for a conclusion to be drawn from the result of the breathalyser
test.
On
7 March 2005 the Independent Administrative Panel asked the applicant
to submit his comments and to indicate whether he wished a further
hearing to be held. On 8 March 2005 the applicant submitted comments
and stated that a further hearing could be dispensed with.
On
14 March 2005 the Independent Administrative Panel dismissed an
appeal by the applicant against the penal order of 17 January 2002.
Applying the Administrative Court’s legal view, it held that an
alcohol level of 0.60 mg/l in the applicant’s breath had been
established by the breathalyser test. Therefore the conviction under
section 99(1)(a) of the Road Traffic Act stood. However, the
Independent Administrative Panel noted that it shared the applicant’s
concerns as regards a possible violation of Article 6 and Article 4
of Protocol No. 7 by the use of the official complaint procedure. It
also noted that it had to set a fine of EUR 872, as this was the
minimum fine applicable for the offence at issue. Taking the duration
of the proceedings into account the Independent Administrative Panel
reduced the default term of imprisonment from thirteen to ten days.
The
applicant lodged a complaint with the Constitutional Court on 19 May
2005. He raised complaints identical to the ones raised by the first
applicant (see paragraphs 19 21 above).
On
13 June 2005 the Constitutional Court refused to deal with the
applicant’s complaint for lack of prospects of success. In
respect of the applicant’s complaint about the length of the
proceedings, it noted that the Independent Administrative Panel had
taken the lengthy duration of the proceedings into account. Upon the
applicant’s request, the Constitutional Court referred the case
to the Administrative Court by a decision of 29 July 2005.
The
applicant made submissions on 5 September 2005 to supplement his
complaint to the Administrative Court.
The
Independent Administrative Panel submitted its observations in reply
on 10 October 2005.
On
14 July 2006 the Administrative Court, referring to its previous
decision, dismissed the applicant’s complaint as unfounded. The
judgment was served on the applicant’s counsel on 14 August
2006.
II. RELEVANT DOMESTIC LAW
A. The Administrative Offences Act
By
virtue of section 51(1) of the Administrative Offences Act
(Verwaltungsstrafgesetz), the accused may lodge an appeal
against a penal order with the Independent Administrative Panel.
The
administrative authority which has issued the impugned decision is a
party to the proceedings before the Independent Administrative Panel
(section 51(d)).
B. The Federal Constitution
Pursuant
to Article 129 of the Federal Constitution (Bundes Verfassungsgesetz)
Independent Administrative Panels are set up in the Länder.
The function of these panels includes determining both the
factual and legal issues arising in cases concerning administrative
offences.
By
virtue of Article 130 of the Federal Constitution the Administrative
Court has jurisdiction to examine complaints alleging that a decision
by an administrative authority or by an Independent Administrative
Panel is unlawful.
Article
131 (1) subparagraph (1) entitles a person who alleges that his or
her rights have been violated by an administrative decision to lodge
a complaint with the Administrative Court following exhaustion of
appeals.
Article
131 (1) subparagraph (2) of the Federal Constitution entitles the
competent Minister, inter alia, in matters pertaining to the
enforcement of federal laws by the Länder, to lodge an
official complaint with the Administrative Court against an allegedly
unlawful decision of an administrative authority, following
exhaustion of appeals by the parties.
C. Administrative Court Act
Section
26 of the Administrative Court Act (Verwaltungsgerichts-hofgesetz)
deals with time-limits for lodging complaints.
Pursuant
to section 26(1) subparagraph (1), a complaint under Article 131(1)
subparagraph (1) has to be brought within six weeks of the date of
service of the decision or, if the decision was only pronounced
orally, from the date of pronouncement.
Pursuant
to section 26(1) subparagraph (2) an official complaint has to be
brought within six weeks of the point when the decision at issue was
served on the Federal Minister, or the Federal Minister becomes aware
of the decision at issue.
Section
42(1) of the Administrative Court Act states that, except where
otherwise provided, the Administrative Court must either dismiss an
application as ill-founded or quash the impugned decision. Section
42(2) lists the grounds of unlawfulness of a decision. Section 42(3)
provides that if the Administrative Court quashes the impugned
decision the proceedings are resumed at the stage they were at before
that decision was issued.
If
the Administrative Court quashes the impugned decision, “the
administrative authorities [are] under a duty ... to take immediate
steps, using the legal means available to them, to bring about in the
specific case the legal situation which corresponds to the
Administrative Court’s view of the law” (section 63(1)).
THE LAW
I. JOINDER OF THE APPLICATIONS
The
Court notes that the two applications raise similar legal issues and
therefore decides to join them pursuant to Rule 42 § 1 of the
Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE QUASHING OF THE INDEPENDENT
ADMINISTRATIVE PANEL’S DECISIONS
The
applicants alleged a violation of Article 6 §
1 of the Convention in that the Federal Minister had lodged an
official complaint after the decision of the Independent
Administrative Panel had become final. Article 6 § 1, so
far as relevant in the present case, provides as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
applicants maintained that the quashing of the
Independent Administrative Panel’s decisions following the
Federal Minister’s official complaints constituted a breach of
the principle of legal certainty, which was incompatible with Article
6 § 1, as the Independent Administrative Panel decisions of 17
June 2002 and 19 March 2002 respectively had become final.
In
the applicants’ view, a complaint to the Administrative Court,
be it a complaint lodged by a party under Article 131(1) subparagraph
(1) of the Federal Constitution or an official complaint under
Article 131(1) subparagraph (2), was an extraordinary remedy.
Moreover, an official complaint was available to the competent
Minister, who was not a party to the proceedings. By virtue of
section 26(1) subparagraph (2) of the Administrative Court Act, an
official complaint could be lodged a long time after the issuing of
the impugned decision, specifically if that decision had not been
served on the competent Minister and he or she had only learned about
it after a considerable lapse of time. In that connection the
applicants referred to a case, also concerning administrative
criminal proceedings for a traffic offence, in which the official
complaint had been lodged about a year after the Independent
Administrative Panel’s decision (see Zuckerstätter and
Reschenhofer v. Austria (dec.), no. 76718/01, 2 September 2004).
Referring to the Court’s case-law, the applicants asserted that
the official complaint procedure was comparable to supervisory review
proceedings under Russian or Ukrainian law.
Moreover,
in the present case, the reopened proceedings led to a new assessment
of their guilt, which was as a result less favourable to them, since
they were then convicted of a more serious offence, namely drunk
driving with a breath alcohol level of at least 0.60 mg/l pursuant to
section 99(1)(a) of the Road Traffic Act, which carried a higher
penalty than section 99(1)(b).
The
Government explained the function of an official complaint under
Article 131 (1) subparagraph 2 of the Federal Constitution in the
Austrian legal system: It was an instrument allowing the Federal
Minister to supervise the implementation of federal laws by the
Länder. The aim of an official complaint was to rectify
an unlawful decision resulting from an incorrect interpretation of
the law and to ensure a correct and uniform application of the law in
the Länder. Pursuant to section 26(1) subparagraph (2) of
the Administrative Court Act, the time-limit for lodging the official
complaint was six weeks from the date of service of the decision on
the competent Federal Minister or, otherwise, from the date on which
the competent Minister was informed of or learned about the decision.
In
the present case the Federal Minister of Transport, Innovation and
Technology had submitted the official complaint within that
time-limit. He had made use of the official complaint on the ground
that the Independent Administrative Panel had not correctly applied
the law, as interpreted by the Administrative Court’s case-law,
when assuming that a calibration error margin had to be deducted from
the breath alcohol level measured by the breathalyser. Given the
dangerousness of driving under the influence of alcohol, the interest
in a uniform application of the law was of considerable importance.
In
respect of the applicants’ specific argument that the use of
the official complaint violated the principle of legal certainty, the
Government asserted that a breach of that principle could only occur
once proceedings had been adjudicated with final effect, namely if
the subject of the proceedings had become res judicata. This
was the case if a decision could no longer be challenged by a legal
remedy. They referred to the Court’s established case-law,
according to which a complaint to the Administrative Court was an
effective remedy which had to be used correctly in order to comply
with the requirement of exhaustion of domestic remedies. It followed
that a decision by the Independent Administrative Panel in
administrative criminal proceedings was not a final decision. In
proceedings under Article 131 of the Federal Constitution, the
Administrative Court acted as a court of appeal on points of law: if
it considered a complaint to be well-founded, it quashed the decision
and referred the case back to the lower authority. Consequently, the
proceedings returned to the status they had had before the challenged
decision had been issued. The legal effects of an official complaint
were the same as those of a complaint brought by a party before the
Administrative Court. In the Government’s view administrative
criminal proceedings were therefore not adjudicated with final
effect, as long as a remedy against the decision of the Independent
Administrative Panel could be lodged with the Administrative Court,
be it a complaint by a party or an official complaint.
Referring
to the above explanation of the functioning of official complaints in
the Austrian system, the Government contested the applicants’
view that the present case could be compared to cases concerning
supervisory review proceedings under Russian law of criminal
procedure (see for instance, Nikitin v. Russia, no. 50178/99,
ECHR 2004 VIII). They stressed that challenging decisions
of administrative authorities, including the Independent
Administrative Panel, before the Administrative Court was an ordinary
remedy available in administrative criminal proceedings.
2. The Court’s assessment
The
Court reiterates the importance of one of the fundamental aspects of
the rule of law, namely the principle of legal certainty, which
requires, among other things, that where the courts have finally
determined an issue their ruling should not be called into question
(see, as leading authorities, Brumǎrescu v. Romania [GC],
no. 28342/95, § 61, ECHR 1999 VII, and Ryabykh v.
Russia, no. 52854/99, § 51, ECHR 2003 IX;
in the context of criminal proceedings see in particular Nikitin,
cited above, §§ 54 57, and Radchikov v.
Russia, no. 65582/01, § 42, 24 May 2007).
The
Court will first examine whether the Independent Administrative Panel
decisions of 17 June and 19 March 2002 respectively had already
become final when the Federal Minister lodged his official complaint
with the Administrative Court under Article 131 (1) subparagraph (2)
of the Federal Constitution. The Court notes that the parties
disagree on this issue.
The
applicants assert that a complaint to the Administrative Court under
Article 131 of the Federal Constitution, be it lodged by a party or
by the relevant Federal Minister, is an extraordinary remedy. In
their view the Independent Administrative Panel’s decisions
became final as soon as they were issued. Admittedly, Article 131 of
the Federal Constitution allows complaints to the Administrative
Court only once the parties have exhausted appeals. However, the
Court reiterates that its own case-law considers a complaint to the
Administrative Court an ordinary and effective remedy which has to be
exhausted in order to comply with Article 35 § 1 of the
Convention (see, for instance, Liedermann v. Austria (dec.),
no. 54272/00, 18 March 2004). The Court therefore finds that the
Independent Administrative Panel’s decision did not become
final before the expiry of the six-week time-limit left to the
applicants to lodge a complaint with the Administrative Court. In the
first applicant’s case the decision was served on 24 July 2002,
so the six-week time-limit ran until 4 September 2002. In the second
applicant’s case the decision was served on 3 April 2002, so
the six-week time-limit ran until 15 May 2002.
The
Government for their part argued that the Independent Administrative
Panel’s decision did not become final as long as the time limit
for the Federal Minister to lodge an official complaint under
Article 131 (1) subparagraph had not expired. The applicants
pointed out that the Independent Administrative Panel’s
decision is not necessarily served on the relevant Federal Minister
and that the time-limit runs in that case from the point in time at
which he or she becomes aware of the decision.
The
Court reiterates at the outset that in proceedings originating in an
individual application it has to confine itself, as far as possible,
to an examination of the specific case before it (see, for instance,
J.B. v. Switzerland, no. 31827/96, § 63, ECHR
2001 III). In the present case the Independent Administrative
Panel’s decision was served on the Federal Minister on 7 August
2002 in the first applicant’s case and on 10 May 2002 in the
second applicant’s case, that is at a point in time at which
the time limit for the applicants to complain to the
Administrative Court had not yet expired. The service set in motion
the six-week time limit for the competent Federal Minister to lodge
an official complaint. It may therefore be argued, as the Government
do, that the Independent Administrative Panel’s decision did
not become final before the expiry of the six-week time-limit left to
the competent Federal Minister to lodge an official complaint.
In
making its assessment the Court will have regard to the function of
the official complaint in the Austrian system of administrative law,
or, more specifically, of administrative criminal law. It notes, as a
particular feature of administrative criminal proceedings, that there
is no prosecuting authority. In proceedings before the Independent
Administrative Panel, the authority issuing the penal order assumes
that role (see Weh and Weh v. Austria (dec.), no.
38544/97, 4 July 2002). However, that authority does not have the
right to lodge a complaint with the Administrative Court against the
Independent Administrative Panel’s decision under Article 131
of the Federal Constitution. This remedy is only open to the accused.
As the Government explained, the official complaint serves to ensure
a correct and uniform interpretation of federal laws by the Länder.
In contrast to the cases of supervisory review to which both
parties referred, no situation arises in which the prosecuting
authorities may first make use of an ordinary appeal and subsequently
submit the same ground for quashing a decision by way of supervisory
review (see Radchikov, cited above, §51) or to submit a
supervisory review on grounds which could and should already have
been raised by way of an ordinary appeal. The applicants argue that
the result of the proceedings following the Federal Minister’s
official complaint was to their detriment. However, in the Court’s
view the applicants’ position in the present case was not
different from the position of any accused in criminal proceedings in
which an appeal is lodged by the prosecuting authority.
Having
regard to these particular features of administrative criminal
proceedings under Austrian criminal law, the Court considers that the
Independent Administrative Panel’s decisions of 17 June 2002
and 19 March 2002 had not become “final” when the
Federal Minister lodged the official complaint within the statutory
six-week time-limit. Consequently, the fact that they were
subsequently quashed by the Administrative Court on the competent
Federal Minister’s official complaint does not violate the
principle of legal certainty.
The
Court therefore concludes that there has been no violation of Article
6 § 1 of the Convention on account of the quashing of the
Independent Administrative Panel’s decisions.
III. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7
The
applicants complained of a violation of Article 4 of Protocol No. 7,
which reads as follows:
“1. No one shall be liable to be tried
or punished again in criminal proceedings under the jurisdiction of
the same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure
of that State.
2. The provisions of the preceding paragraph
shall not prevent the reopening of the case in accordance with the
law and penal procedure of the State concerned, if there is evidence
of new or newly discovered facts, or if there has been a fundamental
defect in the previous proceedings, which could affect the outcome of
the case.
3. No derogation from this Article shall be
made under Article 15 of the Convention.”
The
applicants asserted that as a result of the official complaint the
criminal proceedings against them had been reopened, although none of
the criteria set out in the second paragraph of Article 4 of Protocol
No. 7 had been met.
For
their part, the Government argued that the applicants had not been
“finally convicted” by the Independent Administrative
Panel’s decisions of 17 June and 19 March 2002 respectively.
The proceedings concerning the official complaint and the subsequent
proceedings thus still formed part of one and the same set of
proceedings.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
Having
regard to the finding relating to Article 6 (see paragraphs 68 69
above), the Court finds that the applicants’complaint does not
raise a separate issue under Article 4 of Protocol No. 7 (see, among
other authorities, Radchikov, cited above, § 55, with
further references).
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS
The
applicants complained under Article 6 § 1 about the length of
the proceedings.
The
Government conceded that Article 6 applied to the proceedings at
issue, including the proceedings relating to the competent Federal
Minister’s official complaint, but did not agree that the
proceedings had been unreasonably lengthy.
It
is not disputed that Article 6 applies to the administrative criminal
proceedings at issue (see, as an example of the Court’s
established case-law, Baischer v. Austria, no. 32381/96, §
22, 20 December 2001). Moreover, the Court has already held in a
comparable case that the criminal head of Article 6 § 1 of the
Convention applied to proceedings relating to an official complaint,
raising the question whether the accused had fulfilled the elements
of an administrative offence (see Zuckerstätter and
Reschenhofer (dec.), cited above). In the present case the
official complaint concerned the question whether a calibration error
margin should be deducted from the results of the breathalyser test,
and consequently whether the applicants were guilty of an offence
under sections 5(1) and 99(1)(a) of the Road Traffic Act rather than
of an offence under sections 5(1) and 99(1)(b). The proceedings
before the Administrative Court in connection with the official
complaint therefore related to the “determination of a criminal
charge”. Consequently for the calculation of the length, the
proceedings are to be considered as a whole.
The
proceedings concerning the first applicant started on 14 February
2002 and ended on 21 June 2006. Thus, their duration was four years
and four months. They came before four levels of jurisdiction and
were remitted once to the Independent Administrative Panel.
The
proceedings concerning the second applicant started on 5 December
2001 and ended on 14 August 2006. Thus, their duration was four years
and eight months. They came before four levels of jurisdiction and
were remitted once to the Independent Administrative Panel.
A. Admissibility
1. The first applicant
The
Court observes that in the second set of proceedings the Independent
Administrative Panel took the length of proceedings into account and
reduced the fine to a minimum level. Although it did not specifically
refer to Article 6 of the Convention it acknowledged in essence a
breach of that provision, and provided adequate redress by reducing
the fine for the offence under sections 5(1) and 99(1)(a) of the Road
Traffic Act considerably, namely from EUR 1,162 to the minimum fine
of EUR 872. The Court therefore finds that the applicant cannot claim
to be a victim of the alleged violations of Article 6 and 13 (see,
for instance, Eckle v. Germany, 15 July 1982, § 69
et seq., Series A no. 51, and Jensen v. Denmark (dec.),
no. 48470/99, ECHR 2001-X).
It
follows that the first applicant’s complaint is incompatible
ratione personae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in
accordance with Article 35 § 4.
2. The second applicant
The
situation is different in the second applicant’s case. The
Government pointed out that the Independent Administrative Panel, in
the second set of proceedings, reduced the fine imposed on the
applicant to a minimum level. However, they did not argue that the
applicant could no longer claim to be a victim. In that connection
the Court observes that the Independent Administrative Panel reduced
the fine from EUR 872.07 to EUR 872, the minimum fine for the offence
at issue. Clearly, this is not a significant reduction capable of
compensating the second applicant for the duration of the
proceedings. It is true that the Independent Administrative Panel
also reduced the term of imprisonment in the event of default from
thirteen days to ten days. However, this reduction, though
considerable, had no direct practical effect, as a default prison
term may only be enforced if the fine is irrecoverable and a number
of other conditions are met, and after the conduct of a separate set
of proceedings (see Lückhof and Spanner v. Austria,
nos. 58452/00 and 61920/00, §§ 39 and 54, 10 January 2008).
The second applicant can therefore still claim to be a victim of the
alleged violation.
The
Court considers, in the light of the criteria established by its
case-law on the question of “reasonable time”, and having
regard to all the material in its possession, that an examination of
the merits of the second applicant’s complaint is required.
B. Merits
The
second applicant maintains that the duration of the proceedings was
unreasonable.
The
Government noted that the proceedings before the Independent
Administrative Panel had been conducted expeditiously in both sets of
proceedings. Regarding the proceedings before the Administrative
Court, they noted that while the first set of proceedings had taken
two years and seven months, the second set of proceedings took only
ten months from the time the applicant supplemented his complaint
until judgment was given. The Government submitted, as they had
already done in similar cases, that the Administrative Court has been
burdened for years with an excessive workload, which has resulted in
an increasing backlog of cases, even though various measures had been
taken to reduce this backlog, such as increasing the number of
reporting judges and reducing the subjects falling within the
jurisdiction of the Administrative Court. In sum, the duration of the
proceedings had not been “unreasonable”.
The
Court reiterates that the reasonableness of the length
of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity
of the case, the conduct of the applicant and the relevant
authorities (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, §
67, ECHR 1999-II).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for instance, Gürsoy v. Austria, no. 20597/04,
§ 24, 5 June 2008, Schutte v. Austria, no. 18015/03,
§§ 28-30, 26 July 2007; Vitzthum v. Austria,
no. 8140/04, §§ 21-23, 26 July 2007; Fehr v.
Austria, no. 19247/02, §§ 23 26, 3 February
2005; Blum v. Austria, no. 31655/02, §§ 22-24,
3 February 2005; and Yavuz v. Austria, no. 46549/99, §§
36-40, 27 May 2004, all concerning administrative criminal
proceedings of comparable duration and with considerable delays
before the Administrative Court).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained that they did not have an effective remedy in
respect of the length of the proceedings. They relied on Article 13
of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
Given
the finding above concerning the first applicant’s lack of
victim status in respect of the length of the proceedings (see
paragraphs 80 81), his complaint of lack of an effective
remedy must also be declared inadmissible.
The
second applicant’s complaint of lack of an effective remedy
against the length of the proceedings is closely linked to the
admissible complaint about the length of the proceedings, and must
therefore likewise be declared admissible.
B. Merits
The
second applicant maintained that no effective remedy was available in
respect of excessive length of the proceedings.
The
Government submitted that, in the second set of proceedings, the
second applicant had complained to the Constitutional Court that the
proceedings had been excessively lengthy. According to the
Constitutional Court’s case-law, of which they cited a number
of examples, the administrative authorities have to take unreasonable
length of proceedings into consideration when assessing the penalty.
In the present case, the Constitutional Court found that the
Independent Administrative Panel had complied with this requirement
in its decision of 14 March 2005. The second applicant had therefore
had an effective remedy at his disposal.
The Court reiterates
that the remedies available to a litigant at the domestic level for
raising a complaint about the length
of proceedings are “effective” within the meaning of
Article
13
of the Convention if they “[prevent] the alleged violation or
its continuation, or [provide] adequate redress for any violation
that [has] already occurred” (see Kudła
v. Poland [GC], no.
30210/96,
§ 158, ECHR
2000-XI). Article
13 therefore offers
an alternative: a remedy is “effective” if it can be used
either to expedite a decision by the courts dealing with the case, or
to provide the litigant with adequate redress for delays that have
already occurred (see Kudła, cited above, §
159; see also Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 186 87,
ECHR 2006-...).
The
Court is not required to examine in the abstract whether the case-law
of the Constitutional Court, which requires administrative
authorities to reduce the sentence if the proceedings have been
unreasonably lengthy, may have created an effective remedy. It is
sufficient to note that in the present case the fine had already been
set at the minimum level. Consequently, there was no room for a
reduction of the fine, which would have had a compensatory effect.
The Government have not shown either that any remedy with preventive
effect was available. In the circumstances of the case the second
applicant did not have an effective remedy at his disposal (see
mutatis mutandis, Schutte, cited above, §38;
Vitzthum, cited above, § 31; and Hauser-Sporn v.
Austria, no. 37301/03, § 40, 7 December 2006, all concerning
the lack of a remedy for excessive length of administrative criminal
proceedings).
Consequently,
there has been a violation of Article 13 of the Convention.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION AND ITS
PROTOCOLS
The
applicants further complained of violations of
Article 6 §§ 1 and 3 (d) of the Convention, alleging that
the Administrative Court and, subsequently, the Independent
Administrative Panel in the second set of proceedings, had failed to
duly consider the results of the evidentiary proceedings and to give
sufficient reasons for their decisions. Under Article 6 § 2
they alleged that the Administrative Court’s legal view
amounted to a presumption that the result of the breathalyser test
was correct unless the accused could adduce evidence to the contrary.
Furthermore,
the applicants complained under Article 2 of Protocol No. 7 that they
had not had a review of their convictions by a higher tribunal, since
the Constitutional Court’s and the Administrative Court’s
scope of review was limited. Finally, they complained under Article 6
and Article 1 of Protocol No. 1 that in Austrian administrative
criminal proceedings the fine imposed did not take the offender’s
financial situation into account.
However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, the Court finds that
there is no appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that this part of
the application must be rejected as being manifestly ill-founded
pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
Each
applicant claimed 381.90 euros (EUR) in respect of pecuniary damage,
explaining that these were the fees the Administrative Court, in its
decisions of 23 May 2006 and 14 July 2006, respectively, had ordered
them to reimburse to the Independent Administrative Panel. This was a
consequence of the admission of the official complaint which was in
breach of Article 6 of the Convention. Moreover the first applicant
claimed EUR 3,000 in respect of non-pecuniary damage. The second
applicant claimed EUR 4,000 in respect of non-pecuniary damage.
The
Government contested these claims. Regarding non-pecuniary damage,
they asserted that the finding of a violation would in itself provide
sufficient reparation or, alternatively, that the applicants’
claims were excessive.
The
Court notes that it has only found violations concerning the second
applicant, namely in respect of the length of the proceedings and the
lack of an effective remedy. It does not discern any causal link
between the violations found and the pecuniary damage alleged; it
therefore rejects this claim. On the other hand, making an assessment
on an equitable basis and having regard to the sums awarded in
comparable cases (see, for instance, Gürsoy, cited above,
§ 36; Schutte, cited above, § 48; and Vitzthum,
cited above, § 40) it awards the second applicant
EUR 1,000 in respect of non-pecuniary damage, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
Each
applicant also claimed a total amount of EUR 6,599.16 for costs and
expenses. This amount includes EUR 2,500 per applicant for the costs
of the proceedings before the Court. The remainder concerns the
domestic proceedings.
The
Government considered that in part the costs claimed in respect of
the domestic proceedings had not been incurred with the aim of
preventing or redressing the violation at issue. In respect of the
Convention proceedings they pointed out that only part of each
applicants’ complaints had been declared admissible. In sum,
they asserted that the applicants’ claims were excessive.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court has not
found any violation of the Convention in respect of the first
applicant. Consequently, it does not award him reimbursement of any
costs. Regarding the second applicant, the Court has found violations
in respect of the length of the proceedings and the lack of an
effective remedy. Regard being had to the documents in its
possession and the above criteria, the Court
rejects the second applicant’s claim for costs and expenses in
the domestic proceedings and considers it reasonable to award him the
sum of EUR 1,500 for the proceedings before the Court.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to join the applications;
Declares both applicants’
complaints concerning the quashing of the Independent Administrative
Panel’s decisions upon the competent Federal Minister’s
official complaint and the second applicant’s complaint about
the length of the proceedings and the lack of an effective remedy in
that respect admissible and the remainder of the applications
inadmissible;
Holds that there has been
no violation of Article 6 § 1 of the Convention in respect of
the quashing of the Independent Administrative Panel’s
decisions upon the competent Federal Minister’s official
complaint;
Holds that there is no need
to examine the complaint under Article 4 of Protocol No. 7 of the
Convention;
Holds that there has been a
violation of Article 6 § 1 of the Convention regarding the
length of the second applicant’s proceedings;
Holds that there has been a
violation of Article 13 of the Convention regarding the second
applicant;
Holds
(a) that
the respondent State is to pay the second applicant,
within three months of the date on which the judgment
becomes final, in accordance with Article 44 § 2
of the Convention, EUR 1,000 (one thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage, and
EUR 1,500 (one thousand five hundred euros), plus any tax that may be
chargeable to the applicant, for costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
Dismisses the remainder of
the applicants’ claim for just
satisfaction.
Done in English, and notified in writing on 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges Vajić
and Laffranque is annexed to this judgment.
N.A.V.
S.N.
JOINT CONCURRING OPINION
OF JUDGES VAJIĆ AND
LAFFRANQUE
We
voted with the majority in finding that there had been no violation
of Article 6 § 1 of the Convention on account of the quashing of
the Administrative Panel’s decisions in the present case. We
would, however, like to stress that our conclusion is closely linked
to the specific facts of the case, namely the fact that the
Administrative Panel’s decisions had not become final when the
Federal Minister lodged official complaints within the statutory
time-limit of six weeks (see paragraph 68 of the judgment).
The
decisions of the Administrative Panel in respect of both applicants
were served on the Federal Minister within six weeks of being served
on the applicants, that is, before the time limit for the
applicants to complain had expired (see paragraph 66). Had this not
been the case, we would have had difficulty accepting that there had
been no violation of Article 6 § 1.
