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. 16718/90                       by Peter PALAORO                       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 28 May 1990 by Peter PALAORO against Austria and registered on 13 June 1990 under file No. 16718/90 ;         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 24 February 1992 and the observations in reply submitted by the applicant on 5 October 1992 ;   -      the parties' submissions 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 November 1988 the Imst District Authority (Bezirks- hauptmannschaft) found the applicant guilty of having committed two speeding offences contrary to the Road Traffic Act (Straßenverkehrs- ordnung).   The first offence involved driving in excess of the maximum speed permitted on motorways (Section 20 para. 2 of the Road Traffic Act);   the second offence involved driving, on a further stretch of the same road, in excess of the speed limit imposed by a road sign (Section 52, sub-section A (10) (a) of the Act).   The applicant was fined AS 6,000 and AS 4,000 respectively, with imprisonment of 10 days and 8 days in default.   The applicant's appeal to the Regional Government (Landesregierung) was rejected on 22 December 1988, although the penalties were reduced to AS 4,000 and AS 2,000, with the default penalties reduced to 7 and 4 days.         The applicant's complaint to the Constitutional Court (Verfassungsgerichtshof) was rejected on 10 March 1989.   The Constitutional Court referred to its own case-law on Article 6 of the Convention in finding that the application had no sufficient prospects of success.         On 25 October 1989 the Administrative Court (Verwaltungs- gerichtshof) dismissed the applicant's complaint to it.   It recalled that a formal confrontation with a witness is only to be ordered where it is necessary in the case:   there is no right to put questions in person to a witness.   In any event, the applicant had not shown in what way the evidence brought could have been challenged if the witnesses had been questioned.         The Administrative Court also considered the applicant's complaint that he had been fined twice for the same offence.   The court recalled its case-law that, where a person drives in excess of speed limits imposed by a series of road signs, only one offence is committed.   In the present case, however, the applicant had been convicted under two separate provisions of the Road Traffic Act, namely Sections 20 and 52.   Accordingly, he had committed two separate offences which fell to be dealt with separately.     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.   He also alleges a violation of Article 6 para. 3 (d) of the Convention in that he was not able to put questions to witnesses for the prosecution as no oral hearing was held before the administrative authorities at first and second instance.         The applicant also alleges a violation of Article 4 of Protocol No. 7 to the Convention in that he was fined twice for speeding in the course of one journey.   He notes that in criminal proceedings the "principle of cumulation" (Kumulationsprinzip) would have applied, with the result that only one "total" sentence would have been imposed.   In the present case, as not criminal proceedings, but administrative criminal proceedings were at issue, the "principle of cumulation" was not applied (Article 22 of the Administrative Criminal Code).     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 28 May 1990 and registered on 13 June 1990.         On 16 October 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 on 21 February 1992 and the applicant submitted his observations on 5 October 1992.         On 15 February 1993 the Commission decided to hear the parties as to the admissibility and merits of this case and Applications Nos. 15523/89, 15527/89, 15963/90, 16713/90 and 16841/90.   At the hearing the parties 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   1.     The applicant alleges violation of Article 6 (Art. 6) of the Convention in various respects.         The Government submit that the Austrian reservation to Article 5 (Art. 5) of the Convention prevents the Commission from examining this complaint.   They submit that, even if the reservation does not prevent an examination, then the review of administrative decisions by the Administrative Court and the Constitutional Court is sufficiently wide to comply with Article 6 para. 1 (Art. 6-1) of the Convention. In particular, they refer to Section 41 (2) 3 (a)-(c) of the Administrative Court Act under which the Administrative Court must quash an authority's decision for violation of procedural rules where in an essential point the authority has found facts in a way which contradicts the file,   where the facts require complementation in an essential point, or where procedural provisions have been disregarded in circumstances where, had they been observed, the authority could have arrived at a different decision. The Government consider that the Austrian reservation to Article 5 (Art. 5) of the Convention, if applicable, also covers the applicant's complaint under Article 6 para. 3 (d) (Art. 5-3-d).         In connection with Article 144 para. 2 of the Federal Constitution, the Government consider that, although the provision provides for non-acceptance of a constitutional complaint on grounds which were not in force in 1958 when the reservation was made, the ability of the Constitutional Court to refuse to deal with complaints against decisions without giving detailed reasons is only a procedural limitation and not a substantive one. The Government point out that any complaint lodged with the Constitutional Court against a decision is subject to comprehensive review.         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 valid nor applicable in the present case and that Article 6 (Art. 6) was violated both by the inability of the Administrative Court to make findings of fact, and in that he was unable to put questions to the prosecuting authorities. He considers that the reservation to Article 6 (Art. 6), if valid, is not applicable to the present proceedings.         In connection with Article 144 para. 2 of the Federal Constitution, the applicant considers that the enlarged grounds for non-acceptance of a constitutional complaint are in any event at variance with Convention requirements.         The Commission finds that these complaints 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 for an examination of the merits.         This part of 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.   2.     The applicant also alleges a violation of Article 4 of Protocol No. 7 (P7-4) to the Convention in that he was fined twice for speeding in the course of one journey.   Article 4 of Protocol No. 7 (P7-4) provides as follows:         "1.   No one shall be liable to be tried or punished again in       criminal proceedings under the jurisdiction of the same State for       an offence for which he has already been finally acquitted or       convicted in accordance with the law and penal procedure of that       State.       ..."         The Commission finds that the applicant, who was convicted for speeding twice in the course of one journey, but over separate stretches of road, was convicted not of one but of two separate offences.   It follows that he was not tried or punished again "for an offence for which he has already been finally acquitted or convicted".           This part of the application must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously         DECLARES INADMISSIBLE the complaint relating to the applicant's       having been convicted twice;         DECLARES ADMISSIBLE, without prejudice to the merits, the       remainder of the application.   Secretary to the Commission                  President of the Commission           (H.C. KRÜGER)                                 (C.A. NØRGAARD)