FISCHBACH-MAVROMATIS v. AUSTRIA
Inadmissible
Christos Rozakis
The applicant, Silvia Fischbach-Mavromatis, is a German national, who was born in 1958 and lives in Ehingen (Germany). She was represented before the Court by Beck, Krist and Bubits, a partnership of lawyers practising in Mödling (Austria). The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Departement at the Federal Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 31 March 1997 officers of the Burgenland Regional Police Authority (Landesgendarmeriekommando) carried out speed controls on the Federal Road No. 65 in the course of which the applicant's car was found to be speeding. The Jennersdorf District Administrative Authority was informed accordingly of the offence. On 13 May 1997 the District Administrative Authority ordered the applicant to disclose pursuant to Section 103 § 2 of the Motor Vehicles Act (Kraftfahrzeuggesetz) the full name and address of the person who had driven her car 31 March 1997 at a specified time on Federal Road No. 65. On 5 June 1997 the District Administrative Authority issued a provisional penal order against the applicant in which it sentenced her under sections 103 § 2 and 134 of the Motor Vehicles Act to pay a fine of ATS 1,500 (with 72 hours' imprisonment in default) as she had failed to give the requested information within the set time-limit. The applicant, assisted by counsel, filed an objection (Einspruch) against this decision. She submitted that she should be given the photo taken when the speeding offence was committed as she could not remember who drove her car at the relevant time. In any event, she could not be convicted of the offence under Section 103 § 2 and 134 of the Motor Vehicles Act as this offence - like all administrative offences - could only be committed in Austria whereas she was residing in Germany. On 4 November 1997 the District Authority issued a penal order (Straferkenntnis) confirming its previous decision and sentenced the applicant to a fine of ATS 1,500 (with 72 hours' imprisonment in default). The Authority found that the applicant had failed to give the information requested and that Austrian administrative law, including administrative criminal law, was applicable because the place where the offence had been committed was in Austria since the applicant had to give the requested information to the Jennerdorf District Administrative Authority. The applicant appealed to the Burgenland Independent Administrative Panel (Unabhängiger Verwaltungssenat). She reiterated the arguments made in her objection. On 1 December 1997 the Independent Administrative Panel dismissed the applicant's appeal. Referring to the Administrative Court's case-law it found that the District Administrative Authority had been right when stating that Austrian administrative criminal law was applicable as the offence at issue (failure to disclose information) had been committed in Austria. Furthermore it had not been necessary to send the photo taken when the speeding offence was committed as the applicant, under the Motor Vehicles Act, had been under the obligation to record who had been using her car, possibly with the help of a “car user diary” (Fahrtenbuch). On 13 January 1998 the applicant lodged a complaint against the Independent Administrative Panel's decisions with the Constitutional Court and requested the court to hold a hearing. She complained, inter alia, that the administrative criminal proceedings violated her right not to incriminate herself as guaranteed by Article 90 § 2 of the Federal Constitution. She also complained that her conviction violated her property rights as guaranteed by Article 1 of Protocol No. 1. On 9 June 1998 the Constitutional Court refused to deal with the applicants' complaint for lack of prospect of success. On 24 June 1998 the Constitutional Court, upon the applicant's request, transferred the case to the Administrative Court. On 20 November 1998 the Administrative Court refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) since the amount of the penalty did not exceed ATS 10,000, and no important legal problem was at stake. This decision was served on the applicant's counsel on 15 January 1999. Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows: 's right to require such information shall take precedence over the right to refuse to give information.” The ultimate sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985, quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits, inter alia, that a suspect be obliged on pain of a fine to incriminate himself. In its judgment of 29 September 1988 (VfSlg. 11.829) the Constitutional Court found that the first to third sentences of section 103 § 2 of the Motor Vehicles Act as amended in 1986 were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights, but were saved by the ultimate sentence of that provision which had constitutional rank. In reaching that conclusion the Constitutional Court examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the Constitution, but found that this was not the case. Section 134 § 1 of the Motor Vehicles Act, in the version in force at the material time, provided that a fine of up to ATS 30,000 with up to six weeks' imprisonment in default could be imposed on a person who violates the regulations of this Act.