LIEDERMANN v. AUSTRIA
Inadmissible
Christos Rozakis
The applicant, Mr Gabriel Liedermann, is an Austrian national who was born in 1958 and lives in Vienna. He is a practising lawyer by profession and presents his own case before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 14 June 1997 the car, of which the applicant is the registered owner, was parked illegally in a street in the nineteenth district of Vienna. Two sets of proceedings ensued. On 26 September 1997 the Vienna Municipal Authority (Magistrat der Stadt Wien) ordered the applicant pursuant to section 103 § 2 of the Motor Vehicles Act (Kraftfahrzeuggesetz) to disclose the full name and address of the person who had driven the car on 14 June. The applicant replied that he had not left the car to anybody on that date. On 28 January 1998 the Vienna Municipal Authority issued a penal order (Straferkenntnis) in which it sentenced the applicant under sections 103 § 2 and 134 § 1 of the Motor Vehicles Act to pay a fine of 1,200 Austrian schillings (ATS) with 29 hours' imprisonment in default. It found that he had failed to give the requested information. The applicant appealed on 20 February 1998, submitting in particular that any obligation to give more detailed information than he had given would be incompatible with his right not to incriminate himself as well as with the presumption of innocence as guaranteed by Article 6 of the Convention. In submissions of 24 March 1998 the applicant added that meanwhile on 2 March the Vienna Municipal Authority had issued a penal order for illegal parking against him (see below). He argued that the information he had actually given had, thus, had the effect of incriminating him. On 2 April 1998 the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed the applicant's appeal. Referring to the wording of section 103 § 2 of the Motor Vehicles Act, it found that the applicant, by stating that he had not left the car to anyone at the material time, had failed to give the information requested. As to the applicant's argument that the obligation to disclose who had been driving his car at a certain 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 also referred to the Constitutional Court's judgment of 29 September 1988 (see below – relevant domestic law and practice). Subsequently, the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He argued that if the Independent Administrative Panel's view was correct he would be obliged to incriminate himself by stating that he had driven the car. On 29 September 1998 the Constitutional Court refused to deal with the applicant's complaint. Having regard to its judgment of 29 September 1988, it considered that the applicant's complaint did not offer sufficient prospects of success. This decision was served on the applicant on 25 November 1998. The applicant did not lodge a complaint with the Administrative Court. On 18 August 1997 the Vienna Municipal Authority issued a provisional penal order against the applicant, finding that he had parked his car contrary to section 24 § 1 (a) and 99 § 3 (a) of the Road Traffic Act (Strassenverkehrsordnung) on 14 June 1997 and imposed a fine of ATS 700 with 17 hours' imprisonment on him. The applicant filed an objection. Subsequently, on 26 September 1997 the Vienna Municipal Authority ordered him pursuant to section 103 § 2 of the Motor Vehicles Act to disclose the full name and address of the person who had driven the car on 14 June 1997 (see above). On 2 March 1998 the Vienna Municipal Authority issued a penal order against the applicant, finding that he had illegally parked his car on 14 June 1997. He had thereby violated sections 24 § 1 (a) and 99 § 3 (a) of the Road Traffic Act and was liable to pay a fine of ATS 700 with 17 hours' imprisonment in default. The applicant appealed on 24 March 1998. On 2 July 1998 the Independent Administrative Panel dismissed the applicant's appeal. It noted, inter alia, that the applicant had not contested that he had parked the car. It found that the imposition of a fine for failure to disclose the driver of the car did not in all circumstances prevent the authority from imposing a fine for the traffic offence in respect of which the request to disclose the driver had been made. On 23 February 1999 the Constitutional Court refused to deal with the applicant's complaint for lack of sufficient prospects of success. This decision was served on the applicant on 16 April 1999. Again, the applicant did not lodge a complaint with the Administrative Court. By virtue of Article 130 of the Federal Constitution (Bundesverfassungsgesetz), the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. Pursuant to Article 131 the application may be brought by any person claiming a violation of his or her rights by the administrative decision, provided that all other remedies have been exhausted. Pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofsgesetz), in the version in force at the material time, the Administrative Court could decline to deal with an application against a decision of the Independent Administrative Panel, if the fine imposed did not exceed ATS 10,000 and if no important legal problem was at stake. An important legal problem arises in particular, if the Independent Administrative Panel deviated from the Administrative Court's case-law, if case-law on the issue does not exist, or if the Administrative Court's case-law on the issue is not uniform. Section 42 of the same Act provides that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision if it is unlawful, by reason of its contents, because of a lack of jurisdiction by the authority which gave it, or on account of a breach of procedural rules. Section 63 (1) of the same Act provides that, if the Administrative Court quashed the impugned decision the administrative authorities are bound by its legal view. Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows: 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 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. 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. Section 24 § 1 (a) of the Road Traffic Act (Strassenverkehrsordnung) provides that it is prohibited to stop or park a vehicle within any area delimited by the traffic sign “stopping and parking prohibited”. Section 99 § 3 (a) of the Road Traffic Act in the version in force at the material time, provided that anyone who, as driver of a vehicle, violated the regulations of this Act committed an administrative offence and was liable to a fine of up to ATS 10,000 with up to two weeks' imprisonment in default.