CASE OF LUCKHOF and SPANNER v. AUSTRIA
No violation of Art. 6-1
Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides
6. The first applicant was born in 1955 and lives in Dillenburg, a town situated in the Federal Republic of Germany. The second applicant lives in Weissenburg, also situated in the Federal Republic of Germany. 7. On 7 August 1998 at 10.30 a.m. the car of which the applicant is the registered keeper was recorded by a radar speed detector as exceeding the speed limit by 17 k.p.h. 8. On 12 October 1998 the Deutschlandsberg District Administrative Authority (Bezirkshauptmannschaft) ordered the applicant to disclose within two weeks the full name and address of the person who had been driving his car at the material time and place on 7 August 1998. It noted that an administrative offence had been committed by the driver of the car. The order referred to section 103(2) of the Motor Vehicles Act (Kraftfahrzeuggesetz) as its legal basis. 9. On 25 October 1998 the applicant replied that, on the date at issue, he had been on holiday with some friends and could not remember who had been driving the car at the material time. 10. On 9 November 1998 the 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. It found that the applicant had failed to give the requested information. 11. The applicant filed an objection against this decision. 12. On 29 December 1998 the District Administrative Authority dismissed the applicant’s objection and issued a penal order (Straferkenntnis) confirming its previous decision. 13. The applicant appealed on 20 January 1999, submitting in particular that he had not given any false information but had replied as best as he could. In any case, the obligation under section 103(2) of the Motor Vehicles Act to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by Article 6 of the Convention. 14. On 1 March 1999 the Styria Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed the applicant’s appeal. It noted in particular that the registered car keeper did not only act contrary to section 103(2) of the Road Traffic Act if he gave false information, but also if he provided incomplete information or no information at all. If need be he was obliged to keep records of the names and addresses of persons who had been driving his car. The applicant had failed to give the information requested by the District Administrative Authority’s order of 12 October 1998. As to the applicant’s complaint that the obligation to disclose the identity of the driver of his car at a given time violated his right not to incriminate himself, the Panel observed that the relevant sentence in section 103(2) had constitutional rank. In this connection it referred to the Constitutional Court’s judgment of 29 September 1988 (see paragraph 32 below). 15. On 8 June 1999 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant’s complaint. Referring to its judgment of 29 September 1988, it considered that the applicant’s complaint about an alleged violation of his right not to incriminate himself did not offer sufficient prospects of success. 16. On 5 August 1999 the Administrative Court (Verwaltungs-gerichtshof) 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. This decision was served on the applicant on 26 August 1999. 17. No proceedings for speeding were brought against the applicant. 18. On 25 August 1998 at 3 p.m. the car of which the applicant is the registered keeper was parked illegally in a street in the seventh district of Vienna. 19. On 3 November 1998 the Vienna Municipal Authority (Magistratsabteilung der Stadt Wien) issued a provisional penal order against the applicant for parking contrary to the provisions of the Vienna Parking Meter Act (Wiener Parkometergesetz) and sentenced him to pay a fine of ATS 500 Austrian schillings with twelve hours’ imprisonment in default. 20. The applicant filed an objection against this decision. Consequently, the provisional penal order became invalid in accordance with section 49(2) of the Act on Administrative Offences (Verwaltungsstrafgesetz). However, the criminal proceedings against the applicant relating to the offence of illicit parking remained pending. 21. On 28 December 1998, the Vienna Municipal Authority ordered the applicant pursuant to section 1a of the Vienna Parking Meter Act to disclose within two weeks the full name and address of the person who had parked his car on 25 August 1998 at the above-mentioned place. It noted that an offence under the said Act, namely illicit parking in a short-term parking area, had been committed. The order informed the applicant that failure to provide the information or any incomplete or belated giving of information constituted an offence by virtue of section 1a taken in conjunction with section 4(2) of the Vienna Parking Meter Act. The applicant did not reply. 22. On 3 March 1999 the Vienna Municipal Authority issued a provisional penal order sentencing the applicant under section 1a taken together with Section 4 § 2 of the Vienna Parking Meter Act to pay a fine of ATS 500 with twelve hours’ imprisonment in default for failure to disclose the identity of the driver of his car. 23. The applicant lodged an objection against this decision. 24. On 10 June 1999 the Vienna Municipal Authority dismissed the applicant’s objection and issued a penal order confirming its previous decision. 25. The applicant appealed on 6 July 1999 submitting, in particular, that the imposition of a fine for failure to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by Article 6 of the Convention. 26. On 6 September 1999 the Vienna Independent Administrative Panel dismissed the applicant’s appeal. It noted in particular that the registered car keeper’s obligation to disclose the identity of the driver of his car pursuant to section 1a of the Vienna Parking Meter Act had to be read in conjunction with Article II of Federal Law no. 384/1986, which provided that the authority’s right to require information shall take precedence over the right to refuse to give information. This provision had constitutional rank and was comparable to the last sentence of section 103(2) of the Motor Vehicles Act. 27. On 1 February 2000 the Vienna Municipal Authority informed the applicant that the criminal proceedings against him for illicit parking had been discontinued. 28. On 6 March 2000 the Constitutional Court refused to deal with the applicant’s complaint. Having regard to its case-law relating to section 103(2) of the Motor Vehicles Act, it found that the applicant’s complaint did not offer sufficient prospects of success. 29. On 15 May 2000 the Administrative Court 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. 30. Section 103(2) of the Motor Vehicles Act, as amended in 1986, (Kraftfahrgesetz) provides as follows: “The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car keeper ... must provide such information, which must include the name and address of the person concerned; if he or she is unable to give such information, he/she must name a person who can do so and who will then be under an obligation to inform the authority; the statements made by the person required to give information do not release the authority from its duty to verify’s right to require such information shall take precedence over the right to refuse to give information.” 31. The last 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. 32. 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 last sentence of that provision, which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the last sentence of section 103(2) was contrary to the guiding principles of the constitution, but had found that this was not the case. 33. 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, or up to six weeks’ imprisonment in default, could be imposed on a person who violates the regulations of that Act. 34. The Vienna Parking Meter Act regulates the levying of parking fees in specified “short-term parking areas”. 35. The relevant part of section 1a of the Vienna Parking Meter Act reads as follows: “(1) The registered keeper of a motor vehicle ... has, if the motor vehicle has been parking in a short-term parking area liable to a fee, to inform the Municipal Authority to whom he has left the motor vehicle ... at a certain time. (2) The information, which must include the name and address of the person concerned, is to be provided immediately or, in case of a written request, within two weeks after the request has been served; where such information cannot be provided without keeping pertinent records, such records shall be kept.” 36. According to section 4(2) of the Vienna Parking Meter Act, in the version in force at the material time, a fine of up to ATS 3,000 could be imposed for a failure to comply with the obligation laid down in Section 1a. 37. The relevant part of Article II of Federal Law no. 384/1986 reads as follows: “Where the Länder, in regulating the levying of fees for the parking of motor vehicles ... oblige the registered keeper ... to inform the authority upon its request to whom he has left the motor vehicle ... at a certain time, the authority’s right to require such information shall take precedence over the right to refuse to give information.” This provision was enacted as a provision of constitutional rank. 38. Pursuant to section 5 of the Act on Administrative Offences (Verwaltungsstrafgesetz) any administrative criminal offence may be committed by negligence, unless provided otherwise. 39. Pursuant to section 16 of that Act an administrative fine is to be accompanied by a default prison term of up to fourteen days’ imprisonment, unless provided otherwise. The enforcement of a default prison term is regulated by section 54b of the Act on Administrative Offences. It is only admissible if it is established that the fine is not recoverable. The competent authority has to conduct enforcement proceedings, in which the person concerned has the possibility to request a stay of the payment or payment by instalments. Only if the enforcement of the fine proves to be unsuccessful can an order for the enforcement of the default prison term be made. The order must inform the person concerned that payment of the fine can be made at any time in order to avert the execution of the default prison term.