CASE OF VITZTHUM v. AUSTRIA
Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Christos Rozakis
4. The applicant was born in 1968 and lives in Geretsberg. 5. On 24 June 1999 the Braunau District Administrative Authority (Bezirkshauptmannschaft) charged the applicant with drunken driving. The applicant, represented by counsel, submitted observations on 13 July and 8 September 1999. 6. On 21 September 1999 the District Administrative Authority issued a penal order (Straferkenntnis) finding the applicant guilty of drunken driving contrary to Sections 5 § 1 and 99 § 1 (a) of the Road Traffic Act (Strassenverkehrsordnung). As to the alcohol level the authority had regard to the results of a breathalyser test and to the corroborating results of a blood alcohol analysis carried out the following day. It imposed a fine of 16,000 Austrian schillings (approximately 1,160 euros) on him with 14 days' imprisonment in default. 7. The applicant appealed on 12 October 1999. 8. On 9 December 1999 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat) held a hearing at which it questioned the applicant and the two police officers who had carried out the breathalyser tests and a further witness. 9. By decision of 21 December 1999 the Independent Administrative Panel, having held a hearing, dismissed the applicant's appeal. It found that the applicant had driven his car on 15 June 1999 at 8 p.m. having a proportion of alcohol in his breath exceeding the statutory level. He admitted to having consumed alcohol in the afternoon. Having run out of petrol, the applicant had left the car and had gone to the next petrol station. Upon his return, he had been requested by two police officers to undergo breathalyser tests. The tests, carried out at 8.52 and 8.54 p.m. respectively, had yielded results of 0.84 and 0.86 mg alcohol/litres. The Independent Administrative Panel dismissed the applicant's request to take an expert opinion in order to show that the difference in these results was due to his having consumed one and a half litres of beer when he went to fetch petrol and that he had, before that, not been driving his car in a state of drunkenness. Having regard to the instructions for use of the breathalyser at issue, the Independent Administrative Panel noted that the difference in the two test results was not significant. 10. In any case, it found that the applicant's defence was not credible as he had stated at his first interrogation to have parked his car at 8 p.m. and had explicitly answered the police officers' question whether he had consumed alcohol after that in the negative. It was only in his written submissions of 13 July that he had claimed to have consumed more beer after 8 p.m. The bill submitted by the applicant did not support his defence as the innkeeper had stated that he had given the applicant this bill two weeks after the incident on his explicit request. He had not remembered the applicant and could not confirm whether he had actually consumed beer at his inn at the relevant time. 11. The applicant lodged a complaint with the Administrative Court (Verwaltungsgerichtshof) on 3 February 2000. He complained in particular about the refusal of his request to take an expert opinion. On 3 April 2000 the Independent Administrative Panel submitted observations in reply. The applicant made further submissions on 3 May and 21 June 2000. 12. On 7 August 2003 the Administrative Court, having deliberated on 4 July 2003, dismissed the applicant's complaint as being unfounded. It found in particular that the Independent Administrative Panel's assessment of evidence did not suffer from any defects and that it had given detailed and convincing reasons for its refusal to take the expert opinion requested by the applicant. 13. The decision was served on the applicant's counsel on 1 September 2003.