Schmid v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 20065/92

by Karl SCHMID

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

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 April 1992 by

Karl SCHMID against Austria and registered under file No. 20065/92;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

28 February 1995, and the observations in reply submitted by the

applicant on 15 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen. He is represented before

the Commission by Mr. Wilfried Ludwig Weh, a lawyer practising in

Bregenz.

The applicant was convicted in administrative criminal

proceedings of contraventions of the Road Traffic Act and the Motor

Vehicles Act arising out of an incident on 9 July 1988. A penal order

was issued by the Bregenz District Authority on 13 April 1990 by which

the applicant was fined a total of AS 9,020.00, with 396 hours'

detention in default.

The applicant's appeal to the Vorarlberg Provincial Government

was rejected on 1 February 1991.

The applicant did not apply to the Constitutional Court. On

13 September 1991 the Administrative Court dismissed the applicant's

administrative complaint.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

in that his conviction in administrative criminal proceedings was not

accompanied by the requisite procedural guarantees, in particular that

the Administrative Court was not a "tribunal" within the meaning of

Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The Government's observations were submitted on 28 February 1995

and the applicant's observations in reply on 15 May 1995.

THE LAW

The applicant alleges a violation of Article 6 (Art. 6) of the

Convention. The Government consider that the applicant has failed to

exhaust domestic remedies because he failed to put his case to the

Constitutional Court. They refer to cases from 1979 in which the

Constitutional Court considered Article 6 para. 2 (Art. 6-2) of the

Convention in the context of administrative criminal offences. They

consider that the case does not disclose a violation of Article 6

(Art. 6) in any event.

As to the Government's contention that the applicant has not

exhausted domestic remedies, the Commission notes that the

Constitutional Court, in the decisions referred to, considered Article

6 para. 2 (Art. 6-2) of the Convention in the context of administrative

criminal proceedings. Those cases did not, however, relate to the same

type of administrative offence as in the present case, and the

Constitutional Court did not give any hint that it was about to review

its established opinion as to the compatibility with Article 6

(Art. 6) of the Convention of the Austrian system of criminal

administrative law. In the event it did not change that opinion.

Accordingly, the Commission finds that the applicant was not required

by Article 26 (Art. 26) to make a constitutional complaint.

The Commission has had regard to the facts of the present case,

to the parties' observations, and to the case-law of the European Court

of Human Rights. It finds that the case raises questions under the

Convention which cannot at this stage be rejected as being manifestly

ill-founded, and which require to be determined on the merits. No

other ground of inadmissibility has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)