KRAUSS v. AUSTRIA
Inadmissible
André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
1. The applicant, Ms Anke Eva-Maria Krauss, is a German national who was born in 1979 and lives in Kulmbach. She was represented before the Court by Mr K. Schelling, a lawyer practising in Dornbirn. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Department at the Federal Ministry for Europe, Integration and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 20 May 2009 at 2.08 p.m. the car registered in the applicant’s name was recorded by a radar speed detector as travelling at a speed of 133 k.p.h. on the Tauernmotorway, thus exceeding the speed limit of 100 k.p.h. 4. On 7 July 2009 the Tamsweg District Administrative Authority (Bezirkshauptmannschaft) issued a provisional penal order (Strafverfügung) and fined the applicant 210 euros (EUR) with a three-day suspended sentence for speeding. 5. On 20 July 2009 the applicant filed an (unreasoned) objection against this decision, whereupon ordinary administrative proceedings were opened. 6. On 22 February 2010 the District Administrative Authority dismissed the applicant’s objection and issued a penal order (Straferkenntnis) convicting the applicant of speeding and fining her EUR 210 and EUR 21 in procedural costs. 7. On 5 March 2010 the applicant appealed to the Salzburg Independent Administrative Panel (Unabhängiger Verwaltungssenat, hereinafter “the IAP”), submitting that the authority had not been in possession of any evidence indicating that she had been driving her car at the relevant time. Relying on Article 6 of the Convention, the applicant further complained that she had been convicted solely because she had made use of her right to remain silent and the privilege not to incriminate herself in administrative criminal proceedings. She did not dispute the speeding offence itself. Furthermore she did not request a hearing. 8. On 28 April 2010 the IAP asked the applicant, with reference to her general obligation as an accused to cooperate in administrative criminal proceedings, to submit concrete details regarding the driver of the car at the relevant time or to submit any other evidence to prove that she had not been driving the car. On 14 May 2010 the applicant submitted a statement in which, referring to the case Krumpholz v. Austria (no. 13201/05, 18 March 2010), she maintained that she had not been in Austria at the relevant time and that there were several other persons who could have been driving the car. 9. On 24 June 2010 the IAP held an oral hearing of its own motion. Even though the applicant had been summoned properly, she did not attend the hearing. However, she was represented by her lawyer Mr. K. Schelling, who substituted his mandate to F H & Partner, a law firm practising in Salzburg. The lawyer who was appointed to attend the hearing merely pointed to the written submissions of 14 May 2010 (see paragraph 8 above). According to the minutes of the hearing, no apology was made for the applicant’s absence, nor was further evidence presented and, in particular, the applicant’s representative did not request postponement of the hearing. 10. On 20 July 2010 the IAP dismissed the applicant’s appeal, upheld the penal order and imposed a further EUR 42 in procedural costs. In its reasoning, the IAP pinpointed the accused’s general duty to cooperate in administrative criminal proceedings, indicating at the same time that the applicant had not contested the speeding but merely denied that she had been driving the car herself. However, she had not submitted any concrete information with regard to the identity of the real driver. In particular the IAP reasoned as follows: “As the relevant fact, namely that the speed limit had been exceeded, remained undisputed during the proceedings, this can be taken as an established fact. The accused alleges that she was not driving at the time the offence was committed, however she failed to comply with the duty to cooperate in these proceedings. In accordance with Austrian law and the unanimous jurisprudence of the Administrative Court, the accused has the duty to cooperate in the establishment of the facts. In case of traffic-related offences this encompasses the duty of the registered car keeper to be able to provide information on which persons had use of the car at a specific time. As an ultimate consequence of this jurisprudence, the inference may be drawn that the registered car keeper herself was driving the car, as long as she refuses to provide information on the fact of who had been driving the car at a certain time. In the present case the accused did not comply with her duty as she had answered the IAP’s request of 28 April 2010 by merely stating that she had not been in Austria on 20 May 2009. As various family members could have been the driver, she could not define the real driver. Since she had simply denied having been the driver in both instances without submitting any concrete evidence, the authorities were, in the absence of any other evidence, allowed to assume that the accused had committed the offence herself. (...) The European Court of Human Rights found a violation of Article 6 § 1 and § 2 of the Convention in the case of Krumpholz as it was not permissible to draw an inference solely from the applicant’s refusal to disclose the identity of the driver. Where the authority wished to draw such an inference, an oral hearing for the purpose of obtaining a direct impression of his credibility had to be conducted. In the present case, the applicant had not been ordered to disclose the full name and address of the person who had been driving her car. Nevertheless the IAP ordered her on 28 April 2010, indicating her duty to cooperate in the proceedings, to provide the authority with information regarding the driver of the car at the relevant time or to submit any evidence showing that she had not committed the offence. (...) The applicant had solely denied in a very general way that she had been driving the car, without submitting any evidence. As it can be taken as an established fact that the registered keeper of a car has the most intensive relationship to the car and should therefore know who was driving the car at a relevant time, the authorities were allowed to assume – in the absence of any other evidence – that the applicant herself had committed the offence. (...)” 11. On 27 September 2010 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) claiming that the IAP had not been in possession of any evidence indicating that she herself had been driving her car and had thus wrongly established a prima facie case against her. Therefore, the IAP had not only shifted the burden of proof onto her, but had also violated her right to remain silent. Moreover, as the applicant had not been able to attend the hearing due to a sudden illness for which she had been excused by her representative, the IAP should have scheduled another hearing of its own motion in order to obtain a direct impression of her credibility. Thus, not only had the burden of proof been shifted onto her, but her right to remain silent had also been violated. 12. On 22 September 2011 the Constitutional Court dismissed the applicant’s complaint. In its reasoning the Court held that the decision was sufficiently reasoned and clear, especially since the applicant had failed to submit any credible evidence in her defence, even though she had had various opportunities to do so in the course of the proceedings. Moreover, the IAP had – contrary to Krumpholz (cited above) – held an oral hearing and had, according to the minutes of the hearing, not been informed about the applicant’s illness, and the legal representative had not requested postponement of the hearing. Therefore the Constitutional Court found that the IAP could not be blamed for not having postponed the hearing of its own motion and for assuming that the applicant had been driving the car herself. Thus, no violation of Article 6 of the Convention was found. Subsequently the case was transferred to the Administrative Court. 13. On 16 December 2011 the Administrative Court declined to deal with the applicant’s complaint, since the amount of the fine did not exceed the legal value threshold of EUR 750 and no important legal issue was at stake. This decision was served on the applicant’s counsel on 27 December 2011. B. Relevant domestic law and legislation 14. Section 51e of the Administrative Offences Act (Verwaltungsstrafgesetz, hereinafter “the AOA”), which was in force at the relevant time, reads as follows: “(1) The Independent Administrative Panel shall hold hearings 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...” 15. Section 37 of the General Administrative Procedural Act (Allgemeines Verwaltungsgesetz, hereinafter “the APA”) reads as follows: “The main purpose of the investigation proceedings is to establish the relevant facts and to provide the parties with the opportunity to exercise their rights and legal interests. (...)”. 16. Section 45 of the APA reads as follows: “„(1) Facts, which are evident or facts for which the law draws a presumption regarding their existence, do not have to be proved. (2) Apart from that, the authority has to assess freely, giving careful consideration to the results of the investigation proceedings, whether or not a given fact is to be accepted as proved. (3) The parties are to be informed regarding the evidence obtained and be provided with the opportunity to submit a statement.” 17. Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows: “The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car keeper (Zulassungsbesitzer’s right to require such information shall take precedence over the right to refuse to give information.” 18. The duty to cooperate with the authorities has been established by the Administrative Court’s jurisprudence, starting with its decision no. 96/17/20320, issued on 20 September 1996, and ever since has been applied constantly in administrative criminal proceedings. Even though it is the authorities’ duty to establish the relevant facts, the parties are not dispensed from their obligation to contribute to the establishment of these facts. That encompasses the duty to submit equally specific statements in reply and adduce the relevant evidence. The Administrative Court also agreed to draw inferences from an accused’s evasive or unspecified answer, namely that it can be assumed that the registered keeper of a car had himself committed the offence charged (Administrative Court, no. 93/03/0162, decision of 11 October 1995 [quoted in the IAP’s decision]; see also Administrative Court, no. 2001/02/0273, decision of 6 November 2002).