CASE OF KRUMPHOLZ v. AUSTRIA
Violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1965 and lives in Grafengehaig. 6. On 26 February 2003 at 3.03 p.m. the car of which the applicant is the registered keeper was recorded by police officers using a radar speed detector travelling at a speed of 181 k.p.h., thus exceeding the speed limit of 130 k.p.h. 7. On 26 March 2003 the Graz-Umgebung District Authority (Bezirkshauptmannschaft) ordered the applicant to disclose within two weeks the full name and address of the person who had been driving his car at the material time. The order referred to section 103(2) of the Motor Vehicles Act (Kraftfahrzeuggesetz) as its legal basis. The applicant did not reply. 8. On 14 April 2003 the Graz-Umgebung District Authority issued a provisional penal order (Strafverfügung). Relying on sections 20(2) and 99(3)(a) of the Road Traffic Act, it sentenced the applicant to pay a fine of 181 euros (EUR) with three days' imprisonment in default for speeding. In addition, relying on sections 103(2) and 134(1) of the Motor Vehicles Act, it sentenced the applicant to pay a fine of EUR 181 with three days' imprisonment in default for failure to comply with the order of 26 March 2003 to disclose the driver's identity. 9. The applicant lodged an objection against this decision. On 19 May 2003 he filed submissions stating that he had not been driving his car but that he refused to disclose the driver's identity as he considered this obligation to be at variance with Article 6 of the Convention. 10. Subsequently, the Graz-Umgebung District Authority heard evidence from the police officer who had initiated the proceedings for speeding. On 15 July 2003 the statement of the police officer, who had confirmed that the radar detector, which had been duly calibrated, had measured a speed of 181 k.p.h. and that he had recorded the number of the car, was communicated to the applicant and he was requested to submit his defence in respect of the speeding offence. At the same time he was informed that the proceedings for failure to disclose the identity of the driver had been discontinued. 11. By letter of 31 July 2003 the applicant, represented by counsel, maintained his defence. 12. On 15 October 2003 the Graz-Umgebung District Authority dismissed the applicant's objection and issued a penal order (Strafverfügung) in which it convicted him of speeding and imposed a fine of EUR 180 with three days' imprisonment in default. It also ordered him to pay procedural costs in the amount of EUR 18. 13. The authority noted that the applicant had refused to disclose who had driven his car on 26 February 2003 when it had been recorded exceeding the speed limit. The authority therefore concluded that he had himself been the driver. It observed that this presumption was based on the case-law of the Administrative Court, which had considered that in a case in which the registered keeper of a car did not disclose the driver's identity and did not submit any exculpating evidence in his defence, the authority could reasonably conclude that the keeper himself had been the driver. 14. The applicant appealed to the Styria Independent Administrative Panel (Unabhängiger Verwaltungssenat). He maintained that the obligation to disclose the identity of the driver pursuant to section 103(2) was incompatible with Article 6 of the Convention, as was the drawing of inferences from the mere fact that he had refused to disclose the driver's identity. In this connection the applicant referred to John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996I). In addition, he reiterated that he had not been driving his car on 26 February 2003 and had not even been in Austria at the relevant time. He further asserted that his car had been used regularly by a number of persons but that he had not kept any records and was therefore not in a position to provide the required information. 15. On 18 November 2003 the Styria Independent Administrative Panel dismissed the appeal. It dispensed with a hearing by virtue of section 51e(3) of the Administrative Offences Act (Verwaltungsstrafgesetz). 16. The Independent Administrative Panel's reasoning reads as follows: “In accordance with the principle of establishment of the facts of the authorities' own motion for the purposes of section 37 of the General Administrative Procedure Act (AVG), the material truth must be ascertained; in this regard the authorities are not bound by the facts submitted by the parties, but must establish the true facts by taking the necessary evidence. Under section 45(2) of the AVG the authorities must assess freely, giving careful consideration to the results of the investigation, whether or not a given fact is to be accepted as proven. On the basis of the principle that the court controls the conduct of the proceedings, articulated in section 39 of the AVG, the obligation to establish the facts lies with the authorities; this does not, however, dispense the party from the obligation to contribute to the establishment of the relevant facts. The obligation on the accused in criminal proceedings to cooperate means that he is not merely responsible for contesting the specific evidence against him, without submitting equally specific statements in reply and adducing the relevant evidence ... Nor can the appellant in the present case be released from this obligation by relying on Article 6 of the European Convention on Human Rights. On the contrary, the fact of refusing to name the driver of the vehicle amounts to an infringement of the obligation to cooperate as set forth above. Hence, merely asserting that he was not driving the vehicle registered in his name at the scene of the offence and at the material time runs counter to the appellant's obligation to contribute to the establishment of the relevant facts. In accordance with section 45(2) of the AVG the authorities therefore presume that the appellant himself was the driver. His statements are to be regarded as an attempt to justify his conduct. It has not been established during the proceedings, nor has the applicant seriously asserted in substance, that he could not have contributed to the establishment of the facts without incriminating himself and could not have been expected to do so. The offence with which the appellant was charged is therefore to be regarded as subjectively and objectively proven and imputable to him. His appeal submissions concerning Article 6 of the European Convention on Human Rights are unfounded in relation to the offence with which he was charged.” Turning to the fixing of the sentence, the Independent Administrative Panel noted that the applicant had been charged with exceeding the speed limit substantially, by 45 k.p.h. As excessive speed on motorways was often the reason for serious or very serious traffic accidents, the imposition of a fine of EUR 180 had been appropriate. 17. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). Referring to John Murray (cited above), he asserted that he had been convicted solely on account of the fact that he had made use of his right to remain silent. The Independent Administrative Panel had not been in possession of any evidence to indicate that he was the driver. Moreover, it had disregarded his defence that he had not been in Austria at the material time and was unable to provide the name of the driver as he had not kept any records. These procedural deficiencies were aggravated by the fact that the Independent Administrative Panel had failed to hold a hearing. 18. On 9 June 2004 the Constitutional Court declined to examine the applicant's complaint for lack of prospects of success. 19. On 19 October 2004 the Administrative Court declined to examine the applicant's complaint by virtue of section 33a of the Administrative Court Act, since the amount of the penalty did not exceed EUR 750 and no important legal issue was at stake. 20. Section 51e of the Administrative Offences Act (Verwaltungsstraf-gesetz) reads as follows: “(1) The Independent Administrative Panel shall hold a hearing in public. ... (3) The Independent Administrative Panel may dispense with an appeal hearing if 1. the appeal is based solely on an incorrect legal assessment, or 2. the appeal is directed solely against the amount of the penalty, or 3. the decision being appealed against imposed a financial penalty not exceeding 500 euros 4. the appeal is directed against a procedural decision and no party has requested that a hearing be held. Any request by the appellant for a hearing to be held must be made in the appeal itself...”