CASE OF BAISCHER v. AUSTRIA
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed
Christos Rozakis
9. On 9 November 1994 the Braunau District Administrative Authority (Bezirkshauptmannschaft) convicted the applicant twice under the Motor Vehicles Act (Kraftfahrgesetz) for failure to comply with the instructions of the Authority to inform them who had used his car on specific days (Lenkerauskunft), and sentenced him, on each offence, to a fine of 4,000 ATS or six days’ imprisonment in default. The Authority noted that the applicant had given information but found it to be incorrect. 10. On 29 November 1994 the applicant filed an appeal against this decision with the Upper Austrian Independent Administrative Panel (Unabhängiger Verwaltungssenat). He complained that the District Administrative Authority had incorrectly applied the law and failed to sufficiently assess the evidence before it or clarify why the information he had given was untrue. The applicant did not request a hearing, nor did he expressly waive this right. No oral hearing was held. 11. On 2 January 1995 the Independent Administrative Panel dismissed the appeal on the merits but reduced the sentence. 12. On 28 February 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained under Article 6 § 1 of the Convention that the Independent Administrative Panel had failed to hold a hearing. Such a hearing would have been necessary because his appeal was not limited to points of law. He had also criticised the District Administrative Authority’s assessment of evidence. Therefore an oral hearing would have been necessary. In such a hearing the Independent Administrative Panel could have properly assessed this evidence, which had already been obtained at first instance, as well as fresh evidence. 13. On 13 July 1995 the Constitutional Court declined to deal with the applicant’s complaint on the ground that it did not have sufficient prospects of success. Upon a request filed by the applicant on 10 August 1995, the Constitutional Court transferred the case to the Administrative Court (Verwaltungsgerichtshof). 14. On 23 February 1996 the Administrative Court, relying on Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz), declined to deal with the applicant’s case, finding that it did not raise important legal issues. On 10 May 1996 this decision was served on the applicant’s lawyer. 15. The relevant provisions of the Austrian Federal Constitution (Bundes-Verfassungs Gesetz) concerning the establishment of Independent Administrative Panels which entered into force on 1 January 1991 read as follows: “It is the task of the Independent Administrative Panels in the regions and the Administrative Court in Vienna to ensure the lawfulness of the entire public administration.” “(1) Independent Administrative Panels are composed of a president, a deputy president and a sufficient number of further members. Its members are appointed by the Regional Government for a period of at least six years. ... (2) In fulfilling their tasks under Articles 129a and 129b the members of the Independent Administrative Panel are not bound by any instructions. The court business shall be distributed among the members in advance for the period provided for in the regional legislation. A matter which according to such a schedule is the business of one member may only be withdrawn from him or her in case of impediment by a decision of the president. (3) Before the end of their term of office members of Independent Administrative Panels may only be removed from office in the cases specified by the law and upon a decision of the Independent Administrative Panel itself. ...” 16. The Upper Austria Regional Act on the Independent Administrative Panel, Regional Gazette no. 90/1990 (Gesetz über den Unabhängigen Verwaltungssenat des Landes Oberösterreich, LGBl. 90/1990), repeats to a large extent the provisions of the Federal Constitution, although the term of office of the members of the Upper Austria Independent Administrative Panel is indefinite (Section 3 § 3). 17. Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) reads as follows: "The Administrative Court may decline to deal with a complaint against a decision of an Independent Administrative Panel in an administrative criminal case if no prison sentence or a fine exceeding AS 10,000 has been imposed and the Administrative Court’s decision would not involve the determination of a legal question of fundamental importance. A legal question of fundamental importance is involved in particular if the challenged decision of the Independent Administrative Panel is at variance with the Administrative Court’s case-law, if no such case-law exists or if the legal questions at issue have not been answered uniformly in the Administrative Court’s case-law." 18. Section 51e of the Code of Administrative Offences (Verwaltungsstrafgesetz), as far as relevant, reads as follows: “2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is expressly requested in the appeal. 3. A hearing need not be held if the parties expressly waive their right to a hearing. The parties may express such a waiver up to the beginning of the hearing. ...”