CASE OF KAMMERER v. AUSTRIA
No violation of Art. 6-1 and 6-3-c;Remainder inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev
5. The applicant was born in 1955 and lives in Axams. 6. On 30 June 2004 the Innsbruck District Administrative Authority (Bezirkshauptmannschaft, DAA) issued a provisional penal order (Strafverfügung) against the applicant, imposing a fine under the Motor Vehicles Act (Kraftfahrzeuggesetz) for non-compliance with the obligations of registered owners to have their cars inspected on a regular basis for security reasons. 7. On 6 July 2004 the applicant lodged an objection to this decision. 8. On 12 July 2004 the DAA issued a penal order (Straferkenntnis) confirming its previous decision and imposing a fine of 72 euros (EUR), with twenty-four hours' imprisonment in case of default, on the applicant. 9. Assisted by counsel, the applicant appealed on 28 July 2004 to the Tirol Independent Administrative Panel (Unabhängiger Verwaltungssenat, IAP) alleging that he was not responsible for the regular car inspection since the car was permanently used by another person. Furthermore he argued that the car had been parked at the same spot for more than five weeks and was not in active use at the relevant time. He also requested that an oral hearing be held in which he and the actual user of the car could be heard as witnesses. 10. On 31 January 2005 the IAP scheduled an oral hearing for 22 February 2005. 11. A summons was served on the applicant's counsel on 3 February 2005, containing the standard text that the accused does not have to appear before the IAP personally but is free to send a representative instead. 12. On the morning of 22 February 2005 the replacement of the applicant's counsel informed the IAP that the applicant had been informed about the hearing only a few days before and that he could not attend the hearing since he was ill, neither could the requested witness appear as she was on holiday. He requested an adjournment of the hearing, but the IAP refused. 13. On 22 February 2005 the hearing took place in the absence of the applicant but in the presence of his counsel, who again requested that the hearing be adjourned to hear the applicant and the witness. The IAP dismissed the applicant's appeal and only amended a citation of the DAA's decision. It found that even though the car was used by somebody else the applicant, as the registered owner has to check that the car undergoes regular inspections. Therefore, the IAP did not consider it necessary to question the witness. As regards the request for an adjournment of the hearing, the IAP found that the applicant's interests had been taken care of by his counsel and that his presence had therefore not been necessary, all the more so as the facts were clear and it was only questions of law which had to be decided. 14. On 4 May 2005 the applicant lodged a complaint with the Constitutional Court in which he complained, inter alia, that the IAP had convicted him in absentia. 15. On 13 June 2005 the Constitutional Court declined to deal with the applicant's case since it did not involve a question of fundamental rights. 16. At the request of the applicant the Constitutional Court transmitted the case on 29 July 2005 to the Administrative Court. 17. On 15 September 2005 the applicant modified his complaint lodged with the Administrative Court. 18. On 27 January 2006 the Administrative Court refused to deal with the applicant's complaint under section 33a of the Administrative Court Act since the amount of the penalty did not exceed EUR 750 and no important legal issue was at stake