CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mai 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 15527/89                       by H.U.                       against Austria         The European Commission of Human Rights sitting in private on 10 May 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 23 August 1989 by H.U. against Austria and registered on 20 September 1989 under file No. 15527/89 ;         Having regard to:   -       the report provided for in Rule 47 of the Rules of Procedure of the Commission;   -      the observations submitted by the respondent Government on       21 January 1992 and the observations in reply submitted by the       applicant on 20 March 1992 ;     -      the submissions of the parties at the oral hearing held on 10 May 1993;         Having deliberated;         Decides as follows:   THE FACTS          The applicant is an Austrian citizen.   He is represented before the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.           The facts of the case, as submitted by the parties, may be summarised as follows.           On 16 October 1987 the applicant refused to undergo a breathalyser test.   On the same day he was fined by a penal order (Straferkenntnis) 10,000 AS for failure to comply with Section 99 (1)(b) of the Road Traffic Act (Straßenverkehrsordnung) of 1960, with provision for 480 hours' imprisonment in default.   The applicant appealed to the Regional Government (Landesregierung) which, on 19 January 1988, rejected his appeal.           The applicant then made a complaint to the Constitutional Court (Verfassungsgerichtshof) alleging, inter alia, that the type of breathalyser used was calibrated in a way which did not comply with the legal provisions applicable, and that the proceedings involved did not comply with Article 6 of the Convention.   The Constitutional Court rejected the complaint on 14 October 1988 on the ground that it had no sufficient prospect of success and that the case was not outside the competence of the Administrative Court (Verwaltungsgerichtshof).   The Constitutional Court referred to its own case-law on Article 6 of the Convention in finding that the application had no sufficient prospect of success.           On 6 December 1988 the applicant requested the Constitutional Court to refer the complaint to the Administrative Court.   The Administrative Court, by decision of 20 January 1989 (received by the applicant's representative on 23 February 1989), rejected the complaint concerning the calibration of the breathalyser.   As to Article 6 of the Convention, the Administrative Court noted that the Constitutional Court had found the complaint unfounded, and there was no reason to return the case to the Constitutional Court.   COMPLAINTS           The applicant alleges a violation of Article 6 of the Convention in that the administrative criminal proceedings brought against him were determined initially by administrative authorities which do not constitute independent and impartial tribunals within the meaning of Article 6 para. 1 of the Convention, and subsequently by the Constitutional Court and the Administrative Court, the scope of whose review is not sufficient to comply with Article 6 of the Convention, and which cannot decide the case for themselves.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 23 August 1989 and registered on 20 September 1989.           On 2 September 1991 the Commission decided to request the parties to submit their written observations on the admissibility and merits of the application.         The respondent Government submitted their observations, after an extension of the time-limit, on 21 January 1992 and the applicant submitted his observations on 20 March 1992.         On 15 February 1993 the Commission decided to hear the parties on the admissibility and merits of this case and Applications Nos. 15523/89, 15963/90, 16713/90, 16718/90 and 16841/90.         At the hearing, which was held on 10 May 1993, the parties in the present case were represented as follows:   For the Government:   Ambassador F. Cede           Legal Adviser, Federal Ministry for Foreign                             Affairs, Agent   Ms. S. Bernegger             Federal Chancellery, Adviser   For the applicant:   Mr. W.L. Weh                 Representative       THE LAW         The applicant alleges a violation of Article 6 (Art. 6) of the Convention.         The Government submit that the Austrian reservation to Article 5 (Art. 5) of the Convention prevents the Commission from examining this complaint.   They also consider that the applicant has failed to comply with the six months rule in Article 26 (Art. 26) of the Convention, as his application to the Administrative Court had so little chance of success that it cannot count as a remedy for these purposes.         The Government consider that the absence of an oral public and direct hearing is covered by the Austrian reservation to Article 6 (Art. 6) of the Convention.   They also point out that the applicant did not make a complaint about the absence of a hearing before the Administrative Court.         The applicant considers that the Austrian reservation to Article 5 (Art. 5) of the Convention is neither applicable nor valid, and points out that the Administrative Court in fact dealt with the substance of his administrative complaint and, indeed, could have raised questions of constitutionality of the norms at issue before the Constitutional Court.   He considers that the reservation to Article 6 (Art. 6), if valid, is not applicable to the present proceedings.         The Commission notes that the applicant's request to the Constitutional Court to refer the complaint to the Administrative Court was granted, and that the Administrative Court dismissed the complaint in a decision on the merits.   Had the Administrative Court accepted the applicant's contentions, he would no longer have been the victim of an alleged violation of the Convention.   The Commission finds, in the present case, that the decision of the Administrative Court of 20 January 1989 (received by the applicant's representative on 23 February 1989) must be taken as the final decision for the purposes of Article 26 (Art. 26) of the Convention.         The Commission finds that the complaints raised by the present application raise complex issues of law under the Convention, including questions concerning the Austrian reservations to Articles 5 and 6 (Art. 5, 6) of the Convention, the determination of which must be reserved to an examination of the merits.         The application cannot therefore be declared manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.           For these reasons the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits       of the case.   Secretary to the Commission               President of the Commission         (H. C. KRÜGER)                            (C. A. NORGAARD)