CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 mars 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s23A41E03 { width:36pt; display:inline-block } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase }     Communicated on 4 March 2015   FIRST SECTION Application no. 40607/12 Anke Eva-Maria KRAUSS against Austria lodged on 22 June 2012 STATEMENT OF FACTS The applicant, Ms Anke Eva-Maria Krauss, is a German national, who was born in 1979 and lives in Kulmbach. She is represented before the Court by Mr K. Schelling, a lawyer practising in Dornbirn. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 20 May 2009 at 2.08 p.m. the car of which the applicant is the registered keeper was recorded by a radar speed detector as travelling at a speed of 133 k.p.h., thus exceeding the speed limit of 100 k.p.h. On 7 July 2009 the Tamsweg District Administrative Authority ( Bezirkshauptmannschaft ) issued a provisional penal order ( Strafverfügung ). Relying on the relevant provisions, it sentenced the applicant to pay a fine of EUR 210 with three days’ imprisonment in default for speeding. The applicant filed an objection against this decision. On 22 February 2010 the District Administrative Authority dismissed the applicant’s objection and issued a penal order ( Straferkenntnis ) in which it convicted her of speeding and ordered her to pay EUR 21 in procedural costs in addition to the fine in the amount of EUR 210. The authority noted that an accused has the obligation to cooperate in administrative criminal proceedings and that the applicant as the registered keeper of a car may therefore be requested to disclose who had been driving her car at a specific time. However, the applicant had merely argued that there was no evidence which would have indicated that she had been the driver at the time when her car had been recorded exceeding the speed limit. Thus, as she had failed to submit any concrete information concerning the driver’s identity, the authority concluded that she as the keeper had herself committed the offence. The applicant appealed to the Salzburg Independent Administrative Panel ( Unabhängiger Verwaltungssenat ). She reiterated that the authority had not been in possession of any evidence indicating that she had been the driver of her car at the relevant time. Relying on Article 6 of the Convention, the applicant further complained that she had been convicted solely because she had made use of her right to silence and the privilege not to incriminate herself in administrative criminal proceedings. On 24 June 2010 the Independent Administrative Panel held a hearing. The applicant did not attend the hearing, but was represented by the substitute of her legal representative. During the hearing, the legal representative pointed to the written submissions and made additional reference to the case Krumpholz v. Austria (no. 13201/05, 18 March 2010). On 20 July 2010 the Independent Administrative Panel dismissed the applicant’s appeal and upheld the penal order. The Independent Administrative Panel confirmed that the applicant had failed to comply with her obligations as accused to assist in the establishment of the relevant facts, as she had merely contested to have driven her car at that date without submitting any concrete information with regard to the identity of the driver. Referring to the case-law of the Constitutional Court and the Administrative Court, the authorities could therefore reasonably assume that the applicant as the registered keeper of the car had indeed been the driver at the time of the offence. Insofar as the applicant referred to Krumpholz v. Austria (cited above), the Independent Administrative Panel held that the Court had found a violation in that case because the Styrian Independent Administrative Panel had drawn inferences from the applicant’s refusal to disclose the driver’s identity according to a specific section in the law and because it had failed to hold a hearing. In the present case, however, the authorities had not ordered the applicant to disclose the driver’s identity on the basis of any specific provision. In fact, the Independent Administrative Panel referred to the applicant’s general obligation as an accused to cooperate in administrative criminal proceedings and requested the applicant to submit concrete statements as to who had been driving her car at the relevant date or else to provide any exculpating evidence in her defence. Since the applicant had failed to do so and had not attended the hearing before the Independent Administrative Panel, it could be assumed that she had herself committed the offence in question. The applicant lodged a complaint with the Constitutional Court. She claimed that the Independent Administrative Panel had not been in possession of any evidence which would have indicated that she had been driving her car and had thus wrongly established a prima facie case against her. Therefore, the Independent Administrative Panel had not only shifted the burden of proof on to her, but had also violated her right to remain silent. Moreover, as the applicant had not been able to attend the hearing due to a sudden sickness and had been excused by her representative, the Independent Administrative Panel should have scheduled another hearing of its own motion in order to obtain a direct impression of her credibility. On 22 September 2011 the Constitutional Court dismissed the applicant’s complaint and transferred it to the Administrative Court. It held that the Independent Administrative Panel’s decision was sufficiently reasoned and comprehensible, especially since the applicant had failed to submit any credible evidence in her defence even though she had had various opportunities to do so in the course of the proceedings. Moreover, as the Independent Administrative Panel had – contrary to Krumpholz v. Austria (cited above) – held a hearing and had according to the minutes of the hearing not been informed about the applicant’s sickness, it had not been obliged to adjourn the hearing of its own motion. Therefore, the Constitutional Court did not find a violation of Article 6 of the Convention. On 16 December 2011 the Administrative Court declined to deal with the applicant’s complaint, since the amount of the penalty did not exceed EUR   750 and no important legal issue was at stake. This decision was served on the applicant’s counsel on 27 December 2011. COMPLAINT   The applicant complains under Article 6 §§ 1 and 2 of the Convention that she was convicted of speeding although the authorities had not been in possession of any evidence which would have indicated that she had been driving her car at the relevant time.   Under the same provision, she further complains that the Independent Administrative Panel had not obtained a direct impression of her credibility in the course of an oral hearing before drawing the inference that she had herself committed the offence.       QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the administrative criminal proceedings against her in accordance with Article 6 § 1 of the Convention? In particular, was her right to silence and the privilege not to incriminate herself respected?   2.     Was the presumption of innocence as guaranteed by Article 6 § 2 of the Convention respected in the present case?