FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52167/99 
by Silvia FISCHBACH-MAVROMATIS 
against Austria

The European Court of Human Rights (First Section), sitting on 3 May 2005 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mrs F. Tulkens
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges

and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 15 July 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Silvia Fischbach-Mavromatis, is a German national, who was born in 1958 and lives in Ehingen (Germany). She was represented before the Court by Beck, Krist and Bubits, a partnership of lawyers practising in Mödling (Austria). The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Departement at the Federal Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 31 March 1997 officers of the Burgenland Regional Police Authority (Landesgendarmeriekommando) carried out speed controls on the Federal Road No. 65 in the course of which the applicant's car was found to be speeding. The Jennersdorf District Administrative Authority was informed accordingly of the offence.

On 13 May 1997 the District Administrative Authority ordered the applicant to disclose pursuant to Section 103 § 2 of the Motor Vehicles Act (Kraftfahrzeuggesetz) the full name and address of the person who had driven her car 31 March 1997 at a specified time on Federal Road No. 65.

On 5 June 1997 the District Administrative Authority issued a provisional penal order against the applicant in which it sentenced her under sections 103 § 2 and 134 of the Motor Vehicles Act to pay a fine of ATS 1,500 (with 72 hours' imprisonment in default) as she had failed to give the requested information within the set time-limit.

The applicant, assisted by counsel, filed an objection (Einspruch) against this decision. She submitted that she should be given the photo taken when the speeding offence was committed as she could not remember who drove her car at the relevant time. In any event, she could not be convicted of the offence under Section 103 § 2 and 134 of the Motor Vehicles Act as this offence - like all administrative offences - could only be committed in Austria whereas she was residing in Germany.

On 4 November 1997 the District Authority issued a penal order (Straferkenntnis) confirming its previous decision and sentenced the applicant to a fine of ATS 1,500 (with 72 hours' imprisonment in default). The Authority found that the applicant had failed to give the information requested and that Austrian administrative law, including administrative criminal law, was applicable because the place where the offence had been committed was in Austria since the applicant had to give the requested information to the Jennerdorf District Administrative Authority.

The applicant appealed to the Burgenland Independent Administrative Panel (Unabhängiger Verwaltungssenat). She reiterated the arguments made in her objection.

On 1 December 1997 the Independent Administrative Panel dismissed the applicant's appeal. Referring to the Administrative Court's case-law it found that the District Administrative Authority had been right when stating that Austrian administrative criminal law was applicable as the offence at issue (failure to disclose information) had been committed in Austria. Furthermore it had not been necessary to send the photo taken when the speeding offence was committed as the applicant, under the Motor Vehicles Act, had been under the obligation to record who had been using her car, possibly with the help of a “car user diary” (Fahrtenbuch).

On 13 January 1998 the applicant lodged a complaint against the Independent Administrative Panel's decisions with the Constitutional Court and requested the court to hold a hearing. She complained, inter alia, that the administrative criminal proceedings violated her right not to incriminate herself as guaranteed by Article 90 § 2 of the Federal Constitution. She also complained that her conviction violated her property rights as guaranteed by Article 1 of Protocol No. 1.

On 9 June 1998 the Constitutional Court refused to deal with the applicants' complaint for lack of prospect of success.

On 24 June 1998 the Constitutional Court, upon the applicant's request, transferred the case to the Administrative Court.

On 20 November 1998 the Administrative Court refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) since the amount of the penalty did not exceed ATS 10,000, and no important legal problem was at stake.

This decision was served on the applicant's counsel on 15 January 1999.

B.  Relevant domestic law

The Motor Vehicles Act

Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows:

“The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car owner ... must provide such information, which must include the name and address of the person concerned; if he or she is unable to give such information, he/she must name a person who can do so and who will then be under an obligation to inform the authority; the statements made by the person required to give information do not release the authority from its duty to review such statements where this seems appropriate in the circumstances of the case. The requested information is to be provided immediately or, in case of a written request, within two weeks after the request has been served; where such information cannot be provided without keeping pertinent records, such records shall be kept. The authority's right to require such information shall take precedence over the right to refuse to give information.”

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 examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the Constitution, but 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.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the imposition of a fine for failure to disclose the driver of her car violated her right not to incriminate herself.

Further, she complained under Article 6 that the criminal proceedings were unfair in that the Austrian authorities had incorrectly interpreted the legal provisions they applied. She submitted in particular that the Austrian authorities had acted in breach of the relevant provisions of the Treaty concerning administrative and legal assistance in administrative matters between Germany and Austria.

Lastly the applicant complained that the fine imposed on her violated her property rights under Article 1 of Protocol No. 1.

THE LAW

1. The applicant complained that the imposition of a fine for failure to disclose the driver of her car violated her right not to incriminate herself. She complained further that the proceedings were unfair in that the Austrian authorities had incorrectly interpreted the legal provisions they applied. She relied on Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...

 2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

a. As regards the applicant's complaint about violation of her right to remain silent, the Government argued that the right to remain silent is not absolute. In the present case the applicant's failure to give information did not lead the authorities to the conclusion that she committed the offence of exceeding the speed limit. In fact she was not sentenced for this offence but was punished under Section 103 § 2 of the Motor Vehicles Act for failure to give the requested information.

The applicant contested these arguments. She submitted in particular that under Section 103 § 2 of the Motor Vehicles Act a car owner is obliged to name the driver of the car, even in the case this information would incriminate himself or a near relative.

The Court notes that the heart of the applicant's complaint is that she was punished for failure to give information which may have incriminated her in the context of criminal proceedings for speeding. However, neither at the time when the applicant was requested to disclose the driver of her car nor thereafter were such proceedings conducted against her. Furthermore, there is nothing to show that the applicant was “substantially affected” as to consider her being “charged” with the offence of speeding with the autonomous meaning of Article 6 § 1. It was merely in her capacity as the registered car owner that she was required to give information. Moreover, she was only required to state a simple fact: namely who had been the driver of her car, which is not in itself incriminating.

In such circumstances, the link between the applicant's obligation under Section 130 § 2 of the Motor Vehicles Act to disclose the driver of her car and possible criminal proceedings for speeding against her remains remote and hypothetical. However, without a sufficiently concrete link with these criminal proceedings the use of compulsory powers (i.e. the imposition of a fine) to obtain information does not raise an issue with regard to the applicant's right to remain silent and the privilege against self-incrimination (see Weh v. Austria, no. 38544/97, § 56, 8 April 2004).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b. The applicant further complained that the proceedings were unfair in that the Austrian authorities had incorrectly interpreted the legal provisions they applied. She submitted in particular that the Austrian authorities had acted in breach of the relevant provisions of the Treaty concerning administrative and legal assistance in administrative matters between Germany and Austria.

The Court recalls that it is primarily for the national courts to resolve problems of interpretation of domestic legislation, including where domestic law refers to rules of general international law or international agreements (see the Waite and Kennedy v. Germany. judgment of 18 February 1999, ECHR 1999-I, § 54). It is not the task of the Court to substitute itself for the domestic jurisdictions or to act as an appeal instance. Moreover, the Court finds no evidence in the case-file which might disclose any elements of unfairness or arbitrariness.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained that the fine imposed on her violated her property rights under Article 1 of Protocol 1, which, as far as relevant, reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

The Court observes that the applicant's complaint is based on the very fact that she was ordered to pay a fine. Such a measure does not raise any issue under Article 1 of Protocol 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

FISCHBACH-MAVROMATIS v. AUSTRIA DECISION


FISCHBACH-MAVROMATIS v. AUSTRIA DECISION