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FIRST
SECTION
CASE OF KAMMERER v. AUSTRIA
(Application
no. 32435/06)
JUDGMENT
STRASBOURG
12 May 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Kammerer v.
Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32435/06) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Hermann Kammerer (“the
applicant”), on 30 July 2006.
- The
applicant was represented by Mr W. Rainer, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H.
Tichy, Head of the International Law Department at the Federal
Ministry for Foreign Affairs.
- The
applicant alleged, invoking Article 6 of the Convention, that his
right to be heard had been infringed.
- On
18 September 2008 the Court decided to give notice of the application
to the Government. Under the provision of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Axams.
- On
30 June 2004 the Innsbruck District Administrative Authority
(Bezirkshauptmannschaft, DAA) issued a provisional penal order
(Strafverfügung) against the applicant, imposing a fine
under the Motor Vehicles Act (Kraftfahrzeuggesetz) for
non-compliance with the obligations of registered owners to have
their cars inspected on a regular basis for security reasons.
- On
6 July 2004 the applicant lodged an objection to this decision.
- On
12 July 2004 the DAA issued a penal order (Straferkenntnis)
confirming its previous decision and imposing a fine of 72 euros
(EUR), with twenty-four hours' imprisonment in case of default,
on the applicant.
- Assisted
by counsel, the applicant appealed on 28 July 2004 to the Tirol
Independent Administrative Panel (Unabhängiger
Verwaltungssenat, IAP) alleging that he was not responsible for
the regular car inspection since the car was permanently used by
another person. Furthermore he argued that the car had been parked at
the same spot for more than five weeks and was not in active use at
the relevant time. He also requested that an oral hearing be held in
which he and the actual user of the car could be heard as witnesses.
- On
31 January 2005 the IAP scheduled an oral hearing for 22 February
2005.
- A
summons was served on the applicant's counsel on 3 February 2005,
containing the standard text that the accused does not have to appear
before the IAP personally but is free to send a representative
instead.
- On
the morning of 22 February 2005 the replacement of the applicant's
counsel informed the IAP that the applicant had been informed about
the hearing only a few days before and that he could not attend the
hearing since he was ill, neither could the requested witness appear
as she was on holiday. He requested an adjournment of the hearing,
but the IAP refused.
- On
22 February 2005 the hearing took place in the absence of the
applicant but in the presence of his counsel, who again requested
that the hearing be adjourned to hear the applicant and the witness.
The IAP dismissed the applicant's appeal and only amended a citation
of the DAA's decision. It found that even though the car was used by
somebody else the applicant, as the registered owner has to check
that the car undergoes regular inspections. Therefore, the IAP did
not consider it necessary to question the witness. As regards the
request for an adjournment of the hearing, the IAP found that the
applicant's interests had been taken care of by his counsel and that
his presence had therefore not been necessary, all the more so as the
facts were clear and it was only questions of law which had to be
decided.
- On
4 May 2005 the applicant lodged a complaint with the Constitutional
Court in which he complained, inter alia, that the IAP had
convicted him in absentia.
- On
13 June 2005 the Constitutional Court declined to deal with the
applicant's case since it did not involve a question of fundamental
rights.
- At
the request of the applicant the Constitutional Court transmitted the
case on 29 July 2005 to the Administrative Court.
- On
15 September 2005 the applicant modified his complaint lodged with
the Administrative Court.
- On
27 January 2006 the Administrative Court refused to deal with the
applicant's complaint under section 33a of the Administrative Court
Act since the amount of the penalty did not exceed EUR 750 and no
important legal issue was at stake
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the IAP had held its hearing in his
absence. He relied on Article 6 of the
Convention, which, in so far as relevant, reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law. (...)
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant submitted that even though he had made repeated requests,
he had never been heard in person throughout the administrative
criminal proceedings against him. Furthermore his counsel had twice
requested that the hearing be adjourned, since the applicant could
not take part for health reasons. In this regard he referred to the
cases of Yavuz v. Austria (no. 46549/99, judgment of 27 May
2004) and Kaya v. Austria (no. 54698/00, judgment of
8 June 2006).
- The
Government argued that a hearing held in the absence of the defendant
did not violate Article 6 of the Convention if the defendant was not
punished for his absence in the proceedings and if his right to legal
assistance was not restricted, on account of the fact that the
defendant was represented in the proceedings by legal counsel.
Moreover, the presence of the defendant at an oral hearing was not
necessary when the only questions addressed were those which merely
required an assessment of evidence and did not relate to the
personality of the defendant. According to the applicant's written
submission, which was completely identical to the counsel's oral
pleadings, he merely claimed that he had left the motor vehicle with
a third person and that therefore the applicant's presence was not
necessary. Moreover the IAP took full account of the applicant's
submissions. Lastly, the Government argued that the applicant had
waived his right to attend the hearing on 22 February 2005, since he
had not presented any medical certificate as evidence of his sudden
illness.
- The
Court reiterates that an oral, and public, hearing constitutes a
fundamental principle enshrined in Article 6 § 1. This principle
is particularly important in the criminal context, where generally
there must be at first instance a tribunal which fully meets the
requirements of Article 6 (see Findlay v. the United Kingdom,
judgment of 25 February 1997, Reports of Judgments and Decisions
1997-I, § 79). Moreover, the right of an accused to participate
in person in the proceedings is a fundamental element of a fair trial
(see Colozza v. Italy, judgment of 12 February 1985, Series A
no. 89, p. 14, § 27; Stoichkov v. Bulgaria, no.
9808/02, § 55, 24 March 2005).
- That
said, these obligations are not absolute. There may be proceedings in
which an oral hearing may not be required, for example where there
are no issues of credibility or contested facts which necessitate a
hearing and the courts may fairly and reasonably decide the case on
the basis of the parties' submissions and other written materials
(Jussila v. Finland [GC], no. 73053/01, § 41, ECHR
2006 XIII). Likewise, an accused may waive the exercise of his
right to participate in person in the proceedings, even though this
waiver must be established unequivocally (see, as a recent authority,
Stoichkov v. Bulgaria, cited above).
- In
arguing that his absence from the hearing of 22 February 2005
was in breach of Article 6 of the Convention the applicant relied on
the cases of Yavuz (cited above) and Kaya (cited
above). The Government, for their part, maintained that the
applicant's presence at the hearing of 22 February 2005 had not
been necessary because he was represented in the proceedings by legal
counsel and the only questions addressed at the hearing were those
which merely required an assessment of evidence and did not relate to
the personality of the defendant.
- The
Court observes that in the case of Jussila v. Finland the
Court qualified tax surcharge proceedings against the applicant as
falling under the criminal law limb of Article 6 § 1 of the
Convention (cited above § 38). However, as regards compliance
with Article 6 § 1, the Court found no breach of that provision
on account of a lack of an oral hearing. It emphasised that the
obligation to hold a hearing was not absolute and, in particular,
acknowledged that the national authorities may have regard to the
demands of efficiency and economy in deciding whether or not to hold
an oral hearing (cited above § 42). Even though requirements of
a fair hearing under Article 6 § 1 for the sphere of criminal
law were stricter than civil law, the Court did not exclude that in
the criminal sphere the nature of the issues to be dealt with before
the tribunal or court may not require an oral hearing.
Notwithstanding the consideration that a certain gravity attaches to
criminal proceedings, which are concerned with the allocation of
criminal responsibility and the imposition of a punitive and
deterrent sanction, it was self-evident that there were criminal
cases which did not carry any significant degree of stigma. There
were clearly “criminal charges” of differing weight and,
consequently, the criminal-head guarantees did not necessarily apply
with their full stringency (cited above § 43). The Court
concluded that the requirements of fairness were complied with and
did not necessitate an oral hearing, since no issue of credibility
arose in the proceedings which required oral presentation of evidence
or cross-examination of witnesses. Further, a minor sum of money was
at stake and the applicant was given ample opportunity to put forward
his case in writing, (cited above §§ 46-49).
- The
approach adopted in the Jussila v. Finland case, namely to
apply the criminal head guarantees of Article 6 in a differentiated
manner depending on the nature of the issue and the degree of stigma
certain criminal cases carried, is, in the Court's view, not limited
to the issue of the lack of an oral hearing but may be extended to
other procedural issues covered by Article 6, such as, in the present
case, the presence of a accused at a hearing.
- The
Court observes at the outset that a fine order under the Motor
Vehicles Act for non-compliance with the obligations of registered
owners to have their cars duly inspected, does not belong to the
traditional categories of the criminal law and, under domestic law,
does not fall within the jurisdiction of ordinary criminal courts but
of the Independent Administrative Panel which has jurisdiction in
administrative criminal cases (see Hubner v. Austria (dec.),
no. 34311/96, 31 August 1999). The Court therefore finds that such an
accusation did not carry any significant degree of stigma.
- The
applicant, who had also been aware of the hearing of 22 February
2005, was represented by counsel throughout the proceedings and
counsel attended the hearing in which he had been able to argue the
applicant's case. Moreover, in the course of the hearing no witnesses
were examined. Lastly the Court observes that the proceedings before
the IAP concerned a minor sum of money, namely a fine of EUR 72.
- In
such circumstances the Court cannot find that the administrative
criminal proceedings against the applicant had been unfair on account
of his absence from the hearing before the IAP.
- There
has, accordingly, been no violation of Article 6 §§ 1 and 3
(c) of the Convention.
II. OTHER ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant further complained under Article 6 that he did not have
enough time to prepare his defence before the IAP and that the IAP
had failed to hear a witness requested by him.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning his right to
be heard admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 §§ 1 and 3 (c) of the Convention;
Done in English, and notified in writing on 12 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
