Last Updated on November 4, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 40607/12
Anke Eva-Maria KRAUSS
against Austria
The European Court of Human Rights (Fifth Section), sitting on 6 February 2018 as a Chamber composed of:
Angelika Nußberger, President,
Erik Møse,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 22 June 2012,
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
1. The applicant, Ms Anke Eva-Maria Krauss, is a German national who was born in 1979 and lives in Kulmbach. She was represented before the Court by Mr K. Schelling, a lawyer practising in Dornbirn. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Department at the Federal Ministry for Europe, Integration and International Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 20 May 2009 at 2.08 p.m. the car registered in the applicant’s name was recorded by a radar speed detector as travelling at a speed of 133 k.p.h. on the Tauernmotorway, thus exceeding the speed limit of 100 k.p.h.
4. On 7 July 2009 the Tamsweg District Administrative Authority (Bezirkshauptmannschaft) issued a provisional penal order (Strafverfügung) and fined the applicant 210 euros (EUR) with a three-day suspended sentence for speeding.
5. On 20 July 2009 the applicant filed an (unreasoned) objection against this decision, whereupon ordinary administrative proceedings were opened.
6. On 22 February 2010 the District Administrative Authority dismissed the applicant’s objection and issued a penal order (Straferkenntnis) convicting the applicant of speeding and fining her EUR 210 and EUR 21 in procedural costs.
7. On 5 March 2010 the applicant appealed to the Salzburg Independent Administrative Panel (Unabhängiger Verwaltungssenat, hereinafter “the IAP”), submitting that the authority had not been in possession of any evidence indicating that she had been driving 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 remain silent and the privilege not to incriminate herself in administrative criminal proceedings. She did not dispute the speeding offence itself. Furthermore she did not request a hearing.
8. On 28 April 2010 the IAP asked the applicant, with reference to her general obligation as an accused to cooperate in administrative criminal proceedings, to submit concrete details regarding the driver of the car at the relevant time or to submit any other evidence to prove that she had not been driving the car. On 14 May 2010 the applicant submitted a statement in which, referring to the case Krumpholz v. Austria (no. 13201/05, 18 March 2010), she maintained that she had not been in Austria at the relevant time and that there were several other persons who could have been driving the car.
9. On 24 June 2010 the IAP held an oral hearing of its own motion. Even though the applicant had been summoned properly, she did not attend the hearing. However, she was represented by her lawyer Mr. K. Schelling, who substituted his mandate to F H & Partner, a law firm practising in Salzburg. The lawyer who was appointed to attend the hearing merely pointed to the written submissions of 14 May 2010 (see paragraph 8 above). According to the minutes of the hearing, no apology was made for the applicant’s absence, nor was further evidence presented and, in particular, the applicant’s representative did not request postponement of the hearing.
10. On 20 July 2010 the IAP dismissed the applicant’s appeal, upheld the penal order and imposed a further EUR 42 in procedural costs. In its reasoning, the IAP pinpointed the accused’s general duty to cooperate in administrative criminal proceedings, indicating at the same time that the applicant had not contested the speeding but merely denied that she had been driving the car herself. However, she had not submitted any concrete information with regard to the identity of the real driver. In particular the IAP reasoned as follows:
“As the relevant fact, namely that the speed limit had been exceeded, remained undisputed during the proceedings, this can be taken as an established fact. The accused alleges that she was not driving at the time the offence was committed, however she failed to comply with the duty to cooperate in these proceedings. In accordance with Austrian law and the unanimous jurisprudence of the Administrative Court, the accused has the duty to cooperate in the establishment of the facts. In case of traffic-related offences this encompasses the duty of the registered car keeper to be able to provide information on which persons had use of the car at a specific time. As an ultimate consequence of this jurisprudence, the inference may be drawn that the registered car keeper herself was driving the car, as long as she refuses to provide information on the fact of who had been driving the car at a certain time. In the present case the accused did not comply with her duty as she had answered the IAP’s request of 28 April 2010 by merely stating that she had not been in Austria on 20 May 2009. As various family members could have been the driver, she could not define the real driver. Since she had simply denied having been the driver in both instances without submitting any concrete evidence, the authorities were, in the absence of any other evidence, allowed to assume that the accused had committed the offence herself. (…)
The European Court of Human Rights found a violation of Article 6 § 1 and § 2 of the Convention in the case of Krumpholz as it was not permissible to draw an inference solely from the applicant’s refusal to disclose the identity of the driver. Where the authority wished to draw such an inference, an oral hearing for the purpose of obtaining a direct impression of his credibility had to be conducted.
In the present case, the applicant had not been ordered to disclose the full name and address of the person who had been driving her car. Nevertheless the IAP ordered her on 28 April 2010, indicating her duty to cooperate in the proceedings, to provide the authority with information regarding the driver of the car at the relevant time or to submit any evidence showing that she had not committed the offence. (…)
The applicant had solely denied in a very general way that she had been driving the car, without submitting any evidence. As it can be taken as an established fact that the registered keeper of a car has the most intensive relationship to the car and should therefore know who was driving the car at a relevant time, the authorities were allowed to assume – in the absence of any other evidence – that the applicant herself had committed the offence. (…)”
11. On 27 September 2010 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) claiming that the IAP had not been in possession of any evidence indicating that she herself had been driving her car and had thus wrongly established a prima facie case against her. Therefore, the IAP had not only shifted the burden of proof onto 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 illness for which she had been excused by her representative, the IAP should have scheduled another hearing of its own motion in order to obtain a direct impression of her credibility. Thus, not only had the burden of proof been shifted onto her, but her right to remain silent had also been violated.
12. On 22 September 2011 the Constitutional Court dismissed the applicant’s complaint. In its reasoning the Court held that the decision was sufficiently reasoned and clear, 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, the IAP had – contrary to Krumpholz (cited above) – held an oral hearing and had, according to the minutes of the hearing, not been informed about the applicant’s illness, and the legal representative had not requested postponement of the hearing. Therefore the Constitutional Court found that the IAP could not be blamed for not having postponed the hearing of its own motion and for assuming that the applicant had been driving the car herself. Thus, no violation of Article 6 of the Convention was found. Subsequently the case was transferred to the Administrative Court.
13. On 16 December 2011 the Administrative Court declined to deal with the applicant’s complaint, since the amount of the fine did not exceed the legal value threshold of EUR 750 and no important legal issue was at stake. This decision was served on the applicant’s counsel on 27 December 2011.
B. Relevant domestic law and legislation
14. Section 51e of the Administrative Offences Act (Verwaltungsstrafgesetz, hereinafter “the AOA”), which was in force at the relevant time, reads as follows:
“(1) The Independent Administrative Panel shall hold hearings in public.
…
(3) The Independent Administrative Panel may dispense with an appeal hearing if
1. the appeal is based solely on an incorrect legal assessment, or
2. the appeal is directed solely against the amount of the penalty, or
3. the decision being appealed against imposed a financial penalty not exceeding 500 euros
4. the appeal is directed against a procedural decision
and no party has requested that a hearing be held. Any request by the appellant for a hearing to be held must be made in the appeal itself…”
15. Section 37 of the General Administrative Procedural Act (Allgemeines Verwaltungsgesetz, hereinafter “the APA”) reads as follows:
“The main purpose of the investigation proceedings is to establish the relevant facts and to provide the parties with the opportunity to exercise their rights and legal interests. (…)”.
16. Section 45 of the APA reads as follows:
“„(1) Facts, which are evident or facts for which the law draws a presumption regarding their existence, do not have to be proved.
(2) Apart from that, the authority has to assess freely, giving careful consideration to the results of the investigation proceedings, whether or not a given fact is to be accepted as proved.
(3) The parties are to be informed regarding the evidence obtained and be provided with the opportunity to submit a statement.”
17. 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 keeper (Zulassungsbesitzer) … 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 (constitutional provision). The authority’s right to require such information shall take precedence over the right to refuse to give information.”
18. The duty to cooperate with the authorities has been established by the Administrative Court’s jurisprudence, starting with its decision no. 96/17/20320, issued on 20 September 1996, and ever since has been applied constantly in administrative criminal proceedings. Even though it is the authorities’ duty to establish the relevant facts, the parties are not dispensed from their obligation to contribute to the establishment of these facts. That encompasses the duty to submit equally specific statements in reply and adduce the relevant evidence. The Administrative Court also agreed to draw inferences from an accused’s evasive or unspecified answer, namely that it can be assumed that the registered keeper of a car had himself committed the offence charged (Administrative Court, no. 93/03/0162, decision of 11 October 1995 [quoted in the IAP’s decision]; see also Administrative Court, no. 2001/02/0273, decision of 6 November 2002).
COMPLAINT
19. The applicant complained under Article 6 §§ 1 and 2 of the Convention that she had been convicted of speeding even though the authorities had not been in possession of any evidence to prove that she had been driving the car at the relevant time; furthermore the authorities had failed to directly assess her credibility in an oral hearing before drawing the inference that she had committed the offence.
THE LAW
20. The applicant complained under Article 6 §§ 1 and 2 of the Convention that her conviction for speeding violated her right to remain silent as well as her right not to incriminate herself and the presumption of innocence. In addition, she could not attend the oral hearing. Thus the proceedings did not meet the standards of Article 6.
21. Article 6 §§ 1 and 2 read, in so far as relevant, as follows:
“1. In the determination of his civil rights and obligations or 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. …
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
22. The Government rejected the allegations and took the view that the applicant, who was represented by a lawyer, was by no means required to incriminate herself. Although the authorities had indicated her duty to cooperate, this was not intended to establish the applicant’s guilt but to provide the authorities with necessary information. They further stated that the applicant did not make use of her right to remain silent as she submitted a written statement in which she did not dispute the speeding offence itself but simply denied having committed the offence herself, submitting that she had not been in Austria at the relevant time. She failed, however, to submit any evidence in this respect. The registered keeper of a car could reasonably be expected to substantiate in greater detail why he or she could not have been the driver, specify the group of persons who might have driven the car in greater detail or make a concrete statement or an application for the taking of evidence. Moreover she failed to attend the oral hearing even though she had been summoned properly. Thus, the authorities’ assessment of evidence, in particular the inferences drawn from the applicant’s overall conduct and her statement in respecting the principle of free evaluation of evidence (see paragraph 10 above) and concluding that she had driven the car herself were correct and could not be regarded as amounting to a reversal of the burden of proof contrary to Article 6 of the Convention. Against the background of the considerable public interest in an effective prosecution of traffic offences preventing, among others, accidents due to exceeding speed limits, and in the absence of any other possibilities to establish the facts ex officio, the Government concluded that the duty of a registered car keeper to participate is not in contradiction with the Convention as long as a fair balance between the public interest and the individual car keeper’s interest to remain silent and the right to defence are guaranteed.
23. The applicant submitted that the authorities had only been in possession of a picture showing the car registered in her name exceeding the speed-limit, not indicating at all who had been the driver. As she had been convicted even though she had – upon request – informed the authorities that she had not been in Austria at the relevant time and that she would not be able to deliver any further information on the question of who else might have been driving the car, her right to remain silent and the presumption of innocence had been violated. Referring to the case of Krumpholz v. Austria(no. 13201/05, 18 March 2010), the applicant complained that the IAP had failed to obtain a direct impression of her credibility as she had fallen ill and been unable to attend the oral hearing, which was held in her absence.
24. The Court reiterates at the outset that the right to remain silent and the privilege against self-incrimination as guaranteed by Article 6 § 1 of the Convention and the presumption of innocence enshrined in Article 6 § 2 of the Convention are closely linked. It will therefore examine both aspects together (see Krumpholz, cited above, § 30). Although not specifically mentioned in Article 6 of the Convention, the right to remain silent and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 of the Convention (ibid., § 31).
25. The Court has already had occasion to rule on the drawing of adverse inferences from an accused’s silence and has accepted that this would not in itself infringe Article 6. As the right to remain silent is not seen as an absolute right, the question of whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation (see John Murray v. the United Kingdom, 8 February 1996, § 47, Reports of Judgments and Decisions 1996‑I). The John Murray judgment, in particular, concerned the application of a law which allowed the drawing of inferences from the accused’s silence, where the prosecution had established a case against him which clearly called for an explanation which had been a matter of common sense and could not be regarded as unfair or unreasonable in the circumstances. Considering, on the facts of the case, that the evidence adduced at the trial constituted a formidable case against the applicant, the Court found that the drawing of such inferences, which was moreover subject to important procedural safeguards, did not violate Article 6 §§ 1 and 2 in the circumstances of the case (ibid., §§ 48-58). According to the Court’s case-law, the drawing of adverse inferences from an accused’s silence may in particular be permissible in a system like the Austrian one where the courts are authorised to evaluate freely the evidence before them, provided that the evidence is such that the only common-sense inference to be drawn is that the accused had no answer to the case against him (see Telfner v. Austria, no. 33501/96, § 17, 20 March 2001).
26. Furthermore the Court found in O’Halloran and Francis v. the United Kingdom [GC] (nos. 15809/02 and 25624/02, §§ 55-63, ECHR 2007‑VIII) and, subsequently, in Lückhof and Spanner v. Austria (nos. 58452/00 and 61920/00, §§ 52-59, 10 January 2008), that the obligation for the registered keeper of the vehicle to disclose, on pain of a fine, who had been driving at the time when a traffic offence was committed did not violate the right to remain silent and the privilege against self‑incrimination. In coming to that conclusion it had regard to the fact that, although direct compulsion was brought to bear on the respective applicants as the registered keeper of a car, it had to be seen in the specific context of the regulatory regime for the use of motor vehicles in which car keepers and drivers subjected themselves to certain responsibilities and obligations. The Court also had regard to the nature of the penalties and the limited nature of the inquiry permitted. Finally, it noted that certain procedural safeguards were in place, thus the registered keeper of the car is not left without any defence.
27. In Krumpholz (cited above), the Court found a violation of Article 6 of the Convention as the applicant, who had refused to disclose the driver’s identity under section 103(2) of the Motor Vehicles Act, was not punished for failing to comply with this rule, but for the underlying traffic offence, namely exceeding the speed limit (see ibid., § 38) by drawing inferences from the applicant’s refusal to disclose the identity of the driver. The Court noted that Austrian law did not contain any presumption that the registered keeper of a motor vehicle was to be considered the driver of that vehicle unless he or she proved otherwise, nor does it establish the registered keeper’s liability for traffic offences committed with the motor vehicle. The Court considered that in such a case the authorities could not draw the common-sense conclusion that the applicant himself had been the driver. Therefore the authorities had shifted the burden of proof to the applicant by requiring an explanation without having previously established convincing prima facie evidence. Moreover, the IAP had not held a hearing and was only obliged to do so if the applicant requested one. The Court concluded that no sufficient procedural safeguards had been in place. The IAP should have held a hearing of its own motion in order to obtain a direct impression of his credibility before drawing inferences from the applicant’s refusal to disclose the identity of the driver.
28. The Court holds that, even though there are some similarities with the case of Krumpholz (cited above), the present case must be distinguished from it in some essential points. At the outset it has to be reiterated that the applicant did not dispute at any time that the car registered in her name was recorded exceeding the speed limit (see paragraph 7 above). Furthermore, the authorities did not request the applicant to disclose the driver’s identity under section 103(2) of the Motor Vehicles Act; however, the IAP requested further information from the applicant as she was the registered car keeper. Thereby the IAP clearly indicated the car keeper’s duty to cooperate in the proceedings by providing the authorities with the necessary information (see paragraph 8 above). Finally, and most importantly, the IAP scheduled an oral hearing of its own motion, which was not attended by the applicant, without any excuse, although she had been duly summoned.
29. As regards the right not to incriminate oneself, the Court notes that neither the IAP nor the first District Authorities requested the applicant to disclose the driver’s identity referring to section 103(2) of the Motor Vehicles Act. Thus a failure to comply with such a request would not have been separately and directly punishable. The Court therefore considers that the authorities in the present case did from the outset not exclusively draw inferences from the applicant’s refusal to provide specific information on the identity of the driver as opposed to the case of Krumpholz (cited above).
30. Regarding the right to remain silent, it is true that the IAP invited the applicant, with reference to the general obligation for an accused to cooperate in administrative proceedings (see paragraph 8 above), to submit further evidence. In this respect the Court observes that the applicant made use of this possibility and submitted a statement; thus she did not make use of her right to remain silent, which would have been possible. However, she failed to submit concrete evidence as she merely pointed out that she had not been in Austria at the relevant time (see paragraph 8 above), without providing the authority with sufficient explanation. The Court therefore concludes that her right to remain silent had not been infringed by that invitation. On the contrary, this gave her the opportunity to participate actively in the proceedings in writing.
31. Referring to the oral hearing, it has to be noted that such a hearing was scheduled of the authorities’ own motion and that the applicant was also duly summoned; however, she did not attend. Subsequently, the hearing, at which the applicant’s representative was present, was conducted in her absence. It appears from the minutes of the hearing that the IAP had not been informed of the reason for the applicant’s absence (see paragraph 9 above). Moreover, from the same documents it appears that the applicant’s representative did not request the postponement of the hearing and no further evidence was offered, which was not disputed by the applicant. There was no factual or legal reason for postponing the hearing of the IAP’s own motion. The Court therefore accepts that, in such a situation, the authorities cannot be blamed for closing the assessment of evidence and making use of their competence to assess freely the evidence before them. In conclusion it can be found that the applicant had sufficient procedural safeguards at hand to participate in the proceedings.
32. The Court finds that the Austrian authorities carefully assessed all the evidence and information before them, having regard to the principle of free assessment of evidence provided in the Austrian system. As the applicant had several opportunities to submit evidence without incriminating herself, sufficient safeguards were in place to ensure fair proceedings. Thus it does not appear that the decision was arbitrary, but that the authorities, on the basis of the existing evidence and the applicant’s unconvincing statements, came to the conclusion that the applicant herself had been driving the car at the time and thus was found guilty of the offence committed.
33. Consequently the Court holds that no appearance of a violation of Article 6 §§ 1 and 2 of the Convention can be found, neither in respect of the right not to incriminate oneself, nor in respect of the right to remain silent, nor regarding the lack of an oral hearing. It follows that the application must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 March 2018.
Claudia Westerdiek Angelika Nußberger
Registrar President
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