CASE OF PFARRMEIER v. AUSTRIA
Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
John Freeland
6. On 5 April 1986 Mr Harald Pfarrmeier was stopped by the police after he had parked his car at the side of the road with its headlights on and the engine running. He refused to submit to a breath test. In a "sentence order" (Straferkenntnis) of the same day the Bregenz district authority (Bezirkshauptmannschaft) imposed on him a fine of 9,000 Austrian schillings (ATS) with 360 hours' imprisonment in default of payment, for an offence under section 99(1)(b) taken together with section 5(2) of the Road Traffic Act (Straßenverkehrsordnung - see paragraphs 13 and 14 below). 7. The applicant appealed against that decision to the Vorarlberg regional government (Amt der Landesregierung), which dismissed the appeal on 11 November 1987. 8. On 7 January 1988 Mr Pfarrmeier applied to the Administrative Court (Verwaltungsgerichtshof). He complained, in particular, that the impugned decision was unlawful and that there had been a procedural irregularity. On 23 March 1988 the Administrative Court quashed the decision of the regional government (section 42(2), sub-paragraphs 1 and 3, of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) - see paragraph 21 below) and referred the case back to it. 9. The Vorarlberg regional government, giving a second ruling on 23 December 1988, upheld the Bregenz district authority's decision on the issue of guilt, but reduced the fine to ATS 5,000 and the penalty in default to 200 hours' imprisonment. 10. On 10 February 1989 the applicant applied to the Constitutional Court (Verfassungsgerichtshof). He complained of an infringement of the right of property, of the principle that all citizens are equal before the law and of the right to a "fair procedure" in criminal proceedings under Article 6 (art. 6) of the Convention. On 10 March 1989, at the conclusion of a consideration of the case in private, the Constitutional Court declined to accept the appeal for adjudication (Article 144 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) - see paragraph 17 below), since, in view of Austria's reservation in respect of Article 5 (art. 5) of the Convention, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court. 11. At Mr Pfarrmeier's request, it referred the application to the Administrative Court on 24 April 1989. 12. Reiterating in substance the arguments he had set out before the Constitutional Court, the applicant complained, in particular, of a faulty assessment of the evidence by the administrative authority concerned. The Administrative Court ruled for the second time and dismissed the appeal, after proceedings that were wholly in writing; the applicant had not asked it to hold a hearing. It gave the following reasons: "However, having regard to the Administrative Court's limited supervisory power in proceedings relating to an application for review of an administrative decision, it is not for the court to ascertain whether the assessment made of the evidence in a given case is correct in the sense, for example, that a statement which incriminates the applicant corresponds to the facts and not the reply (decision of 3 October 1985 delivered by a full court, Zl. 85/02/0053). Accordingly, the applicant's complaint that he did not speak to the reporting police officer about a night's drinking session cannot be entertained. ... The respondent authority was entitled, without disregarding the requirement that the assessment of the evidence has to be conclusive, to draw from the established facts mentioned above the conclusion that objective circumstances - and not merely the subjective belief of the reporting police officer - supported the suspicion that the applicant was under the influence of drink. ... As regards the applicant's complaint that his lawyer was not allowed to examine the witness Widlroither in the proceedings before the authority, reference is made to the Administrative Court's settled case-law, according to which neither the holding of a hearing nor the possibility of examining witnesses is an essential part of lawful administrative criminal proceedings (see the decision of 13 June 1986, Zl. 86/18/0065, and the one of 19 February 1987, Zl. 86/02/0159). As to the alleged unconstitutionality of Austria's reservation in respect of Article 5 (art. 5) of the European Convention on Human Rights, reference is made to the decision delivered by a full court on 8 May 1987, Slg NF no. 12.466/A. Since the alleged unlawfulness of the impugned decision has not been made out in the application, it falls to be dismissed as unfounded, under section 42(1) of the Administrative Court Act. ..." 13. Under section 5 of the Road Traffic Act 1960 it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. The same section also lays down the conditions for the use of breathalysers and blood tests. 14. In its 1971 version, section 99(1) of the Act provided: "It shall be an administrative offence (Verwaltungsübertretung), punishable with a fine of not less than 5,000 and not more than 30,000 schillings or, in default of payment, with one to six weeks' imprisonment, for any person ... (b) to refuse to submit to a breath test where the conditions laid down in section 5 are satisfied; ..." 15. In 1958, at the time when the Austrian Government ratified the Convention (see paragraph 25 below), section 7 of the Traffic Police Act 1947 (Straßenpolizeigesetz) provided: "Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order, safety and a proper flow of traffic." 16. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides: "Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law." 17. By Article 144 para. 1 of the Federal Constitution, the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law. Article 144 para. 2 provides: "Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133." 18. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. 19. Section 39(1) of the Administrative Court Act provides, in particular, that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect. Section 39(2) reads as follows: "Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where 1. the proceedings must be stayed (section 33) or the application dismissed (section 34); 2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2)); 3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3)); 4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court; 5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed; 6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further." Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982. 20. Section 41(1) of the Administrative Court Act provides: "In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42(2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary." 21. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision. By section 42(2), "The Administrative Court shall quash the impugned decision if it is unlawful 1. by reason of its content, [or] 2. because the respondent authority lacked jurisdiction, [or] 3. on account of a breach of procedural rules, in that (a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or (b) the facts require further investigation on an important point, or (c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority." 22. 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 (Rechtsanschauung)" (section 63(1)). 23. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held: "From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation." 24. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen). 25. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows: "The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution."