CASE OF RIEG v. AUSTRIA
No violation of Art. 6-1
Christos Rozakis
6. The applicant was born in 1954 and lives in Laupheim (Germany). 7. On 17 January 1997 at 18.45 p.m. the car of which the applicant is the registered owner was caught in Austria by a radar-trap exceeding the speed limit by 26 km/h. 8. On 12 March 1997 the Dornbirn District Administrative Authority (Bezirkshauptmannschaft) ordered the applicant pursuant to section 103 § 2 of the Motor Vehicles Act (Kraftfahrzeuggesetz) to disclose within two weeks the full name and address of the person who had been driving her car at the material time on 17 January 1997. 9. On 24 March 1997 the applicant replied that Mr J.S. [first and family name in full], living in Mostar, Bosnia-Herzegovina had been the driver. 10. On 17 April 1997 the Dornbirn District Administrative Authority issued a provisional penal order (Strafverfügung) in which it sentenced the applicant under sections 103 § 2 and 134 § 1 of the Motor Vehicles Act to pay a fine of 1,500 Austrian schillings (ATS) with two days' imprisonment in default. 11. The applicant filed an objection against this decision. 12. On 22 September 1997 the District Administrative Authority dismissed the applicant's objection and issued a penal order (Straferkenntnis) confirming its previous decision. It found that the applicant had failed to give complete information as requested in the order of 12 March. 13. The applicant appealed on 1 October 1997 submitting in particular that she had replied to the District Administrative Authority's order, but had been unable to find out the exact address of Mr J.S. Further, she claimed that the obligation under section 103 § 2 of the Motor Vehicles Act to disclose the driver of her car violated the presumption of innocence and her right not to incriminate herself. Finally, she pointed out that she was a German national and that German law did not contain a comparable obligation of the registered car owner to disclose who had been driving the car at a specified time. 14. On 26 November 1997 the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed the applicant's appeal. As to the applicant's complaint that the obligation under section 103 § 2 of the Motor Vehicles Act violated the right not to incriminate oneself and the presumption of innocence, it noted that the relevant sentence of that provision had constitutional rank. 15. On 30 December 1997 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). She repeated the complaint as to the alleged violation of her right not to incriminate herself. 16. On 9 June 1998 the Constitutional Court declined to deal with the applicant's complaint for lack of sufficient prospects of success. 17. On 30 June 2000 the Administrative Court (Verwaltungsgerichtshof) refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake. 18. The applicant was not prosecuted for exceeding the speed limit. 19. 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.” 20. 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. 21. In its judgment of 29 September 1988 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 had examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the constitution, but had found that this was not the case. 22. 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 could be imposed on a person who violates the regulations of this Act.