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FIRST
SECTION
CASE OF LÜCKHOF and SPANNER v. AUSTRIA
(Applications
nos. 58452/00 and 61920/00)
JUDGMENT
STRASBOURG
10 January
2008
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 Lückhof and Spanner v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Loukis Loucaides,
Nina Vajić,
Anatoli
Kovler,
Elisabeth Steiner,
Khanlar
Hajiyev,
Dean Spielmann, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 6 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in applications (nos. 58452/00 and 61920/00) 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 two German nationals, Mr
Burkhard Lückhof and Mr Helmut Spanner (“the applicants”),
on 18 February and 30 August 2000 respectively.
- The
applicants were represented by Mr M. Freund, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador F. Trauttmansdorff, Head of
the International Law Department at the Federal Ministry of Foreign
Affairs. The German Government did not make use of their right to
intervene under Article 36 § 1 of the Convention.
- The
applicants complained that being compelled, as registered car
keepers, to provide information on the identity of the driver on the
occasion of the commission of a traffic offence violated their right
to remain silent and not to incriminate themselves.
- On
18 March 2004 the Court declared the applications admissible. By a
decision of 1 June 2006 the Court decided to adjourn the proceedings
pending the outcome of the Grand Chamber proceedings in O’Halloran
and Francis v. the United Kingdom (nos. 15809/02 and 25624/02).
Following the adoption of the judgment in that case the proceedings
were resumed.
- Neither
of the parties made further observations on the merits (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant was born in 1955 and lives in Dillenburg, a town
situated in the Federal Republic of Germany. The second applicant
lives in Weissenburg, also situated in the Federal Republic of
Germany.
A. Mr Lückhof (application no. 58452/00)
- On
7 August 1998 at 10.30 a.m. the car of which the applicant is the
registered keeper was recorded by a radar speed detector as exceeding
the speed limit by 17 k.p.h.
- On
12 October 1998 the Deutschlandsberg District Administrative
Authority (Bezirkshauptmannschaft) ordered the applicant to
disclose within two weeks the full name and address of the person who
had been driving his car at the material time and place on 7 August
1998. It noted that an administrative offence had been committed by
the driver of the car. The order referred to section 103(2) of the
Motor Vehicles Act (Kraftfahrzeuggesetz) as its legal basis.
- On
25 October 1998 the applicant replied that, on the date at issue, he
had been on holiday with some friends and could not remember who had
been driving the car at the material time.
- On
9 November 1998 the District Administrative Authority issued a
provisional penal order (Strafverfügung) in which it
sentenced the applicant under sections 103(2) and 134(1) of the Motor
Vehicles Act to pay a fine of 1,500 Austrian schillings (ATS) with
two days’ imprisonment in default. It found that the applicant
had failed to give the requested information.
- The
applicant filed an objection against this decision.
- On
29 December 1998 the District Administrative Authority dismissed the
applicant’s objection and issued a penal order
(Straferkenntnis) confirming its previous decision.
- The
applicant appealed on 20 January 1999, submitting in particular that
he had not given any false information but had replied as best as he
could. In any case, the obligation under section 103(2) of the Motor
Vehicles Act to disclose the identity of the driver of his car
violated his right not to incriminate himself as guaranteed by
Article 6 of the Convention.
- On
1 March 1999 the Styria Independent Administrative Panel
(Unabhängiger Verwaltungssenat) dismissed the applicant’s
appeal. It noted in particular that the registered car keeper did not
only act contrary to section 103(2) of the Road Traffic Act if he
gave false information, but also if he provided incomplete
information or no information at all. If need be he was obliged to
keep records of the names and addresses of persons who had been
driving his car. The applicant had failed to give the information
requested by the District Administrative Authority’s order of
12 October 1998. As to the applicant’s complaint that the
obligation to disclose the identity of the driver of his car at a
given time violated his right not to incriminate himself, the Panel
observed that the relevant sentence in section 103(2) had
constitutional rank. In this connection it referred to the
Constitutional Court’s judgment of 29 September 1988 (see
paragraph 32 below).
- On
8 June 1999 the Constitutional Court (Verfassungsgerichtshof)
refused to deal with the applicant’s complaint. Referring to
its judgment of 29 September 1988, it considered that the applicant’s
complaint about an alleged violation of his right not to incriminate
himself did not offer sufficient prospects of success.
- On
5 August 1999 the Administrative Court (Verwaltungs-gerichtshof)
refused to deal with the applicant’s complaint pursuant to
section 33a of the Administrative Court Act 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 on 26 August
1999.
- No
proceedings for speeding were brought against the applicant.
B. Mr Spanner (application no. 61920/00)
- On
25 August 1998 at 3 p.m. the car of which the applicant is the
registered keeper was parked illegally in a street in the seventh
district of Vienna.
- On
3 November 1998 the Vienna Municipal Authority (Magistratsabteilung
der Stadt Wien) issued a provisional penal order against the
applicant for parking contrary to the provisions of the Vienna
Parking Meter Act (Wiener Parkometergesetz) and sentenced him
to pay a fine of ATS 500 Austrian schillings with twelve hours’
imprisonment in default.
- The
applicant filed an objection against this decision. Consequently, the
provisional penal order became invalid in accordance with section
49(2) of the Act on Administrative Offences (Verwaltungsstrafgesetz).
However, the criminal proceedings against the applicant relating to
the offence of illicit parking remained pending.
- On
28 December 1998, the Vienna Municipal Authority ordered the
applicant pursuant to section 1a of the Vienna Parking Meter Act to
disclose within two weeks the full name and address of the person who
had parked his car on 25 August 1998 at the above-mentioned place. It
noted that an offence under the said Act, namely illicit parking in a
short-term parking area, had been committed. The order informed the
applicant that failure to provide the information or any incomplete
or belated giving of information constituted an offence by virtue of
section 1a taken in conjunction with section 4(2) of the Vienna
Parking Meter Act. The applicant did not reply.
- On
3 March 1999 the Vienna Municipal Authority issued a provisional
penal order sentencing the applicant under section 1a taken together
with Section 4 § 2 of the Vienna Parking Meter Act to pay a fine
of ATS 500 with twelve hours’ imprisonment in default for
failure to disclose the identity of the driver of his car.
- The
applicant lodged an objection against this decision.
- On
10 June 1999 the Vienna Municipal Authority dismissed the applicant’s
objection and issued a penal order confirming its previous decision.
- The
applicant appealed on 6 July 1999 submitting, in particular, that the
imposition of a fine for failure to disclose the identity of the
driver of his car violated his right not to incriminate himself as
guaranteed by Article 6 of the Convention.
- On
6 September 1999 the Vienna Independent Administrative Panel
dismissed the applicant’s appeal. It noted in particular that
the registered car keeper’s obligation to disclose the identity
of the driver of his car pursuant to section 1a of the Vienna Parking
Meter Act had to be read in conjunction with Article II of Federal
Law no. 384/1986, which provided that the authority’s right to
require information shall take precedence over the right to refuse to
give information. This provision had constitutional rank and was
comparable to the last sentence of section 103(2) of the Motor
Vehicles Act.
- On
1 February 2000 the Vienna Municipal Authority informed the applicant
that the criminal proceedings against him for illicit parking had
been discontinued.
- On
6 March 2000 the Constitutional Court refused to deal with the
applicant’s complaint. Having regard to its case-law relating
to section 103(2) of the Motor Vehicles Act, it found that the
applicant’s complaint did not offer sufficient prospects of
success.
- On
15 May 2000 the Administrative Court refused to deal with the
applicant’s complaint pursuant to section 33a of the
Administrative Court Act since the amount of the penalty did not
exceed ATS 10,000 and no important legal problem was at stake.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. 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 keeper ...
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 verify 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
last 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 last sentence of that provision, which had constitutional
rank. In reaching that conclusion the Constitutional Court had
examined whether the last sentence of section 103(2) was contrary to
the guiding principles of the constitution, but had 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, or up to six
weeks’ imprisonment in default, could be imposed on a person
who violates the regulations of that Act.
B. The Vienna Parking Meter Act
- The
Vienna Parking Meter Act regulates the levying of parking fees in
specified “short-term parking areas”.
- The
relevant part of section 1a of the Vienna Parking Meter Act reads as
follows:
“(1) The registered keeper of a motor vehicle ...
has, if the motor vehicle has been parking in a short-term parking
area liable to a fee, to inform the Municipal Authority to whom he
has left the motor vehicle ... at a certain time.
(2) The information, which must include the name and
address of the person concerned, 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.”
- According
to section 4(2) of the Vienna Parking Meter Act, in the version in
force at the material time, a fine of up to ATS 3,000 could be
imposed for a failure to comply with the obligation laid down in
Section 1a.
- The
relevant part of Article II of Federal Law no. 384/1986 reads as
follows:
“Where the Länder, in regulating the levying
of fees for the parking of motor vehicles ... oblige the registered
keeper ... to inform the authority upon its request to whom he has
left the motor vehicle ... at a certain time, the authority’s
right to require such information shall take precedence over the
right to refuse to give information.”
This
provision was enacted as a provision of constitutional rank.
C. The Act on Administrative Offences
- Pursuant
to section 5 of the Act on Administrative Offences
(Verwaltungsstrafgesetz) any administrative criminal offence
may be committed by negligence, unless provided otherwise.
- Pursuant
to section 16 of that Act an administrative fine is to be accompanied
by a default prison term of up to fourteen days’ imprisonment,
unless provided otherwise. The enforcement of a default prison term
is regulated by section 54b of the Act on Administrative Offences. It
is only admissible if it is established that the fine is not
recoverable. The competent authority has to conduct enforcement
proceedings, in which the person concerned has the possibility to
request a stay of the payment or payment by instalments. Only if the
enforcement of the fine proves to be unsuccessful can an order for
the enforcement of the default prison term be made. The order must
inform the person concerned that payment of the fine can be made at
any time in order to avert the execution of the default prison term.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained of a violation of their right to remain silent
and the privilege against self-incrimination. They relied on Article
6 § 1 of the Convention which, in its relevant part, reads
as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. The parties’ submissions
- The
applicants argued that, in cases in which the registered car keeper
happened to have been the driver at the time when the traffic offence
has been committed, section 103(2) of the Motor Vehicles Act obliged
him on pain of a fine to incriminate himself, since an admission of
having driven the car amounted in practical terms to a confession of
having committed the offence. However, obtaining a confession by
means of coercion was incompatible with the right to silence and the
privilege against self-incrimination.
- The
applicants contested the Government’s public policy argument,
asserting that the interests in an effective prosecution of traffic
offences could not justify curtailing the right to silence and the
privilege against self-incrimination, which were core contents of the
notion of a fair trial. Moreover, the example of other member States
showed that it was possible to secure the prosecution of traffic
offences without resorting to a provision which was contrary to
Article 6 of the Convention.
- Finally,
the applicants, being German nationals, submitted that the Ministries
for the Interior of a number of German Länder refused to
execute penal orders under section 103(2) of the Motor Vehicles Act
on the ground that it violated the right to remain silent and the
right not to incriminate oneself.
- The
Government, referring to the Court’s case-law, contended that
the right to silence and the privilege against self-incrimination
were not absolute (see John Murray v. the United Kingdom,
judgment of 8 February 1996, Reports of Judgments and Decisions
1996-I, p. 49, § 45).
- The
Government distinguished the present case from cases in which the
Court found a violation of the right to remain silent and the
privilege against self-incrimination (in particular, Funke v.
France, judgment of 25 February 1993, Series A no. 256-A,
and J.B. v. Switzerland, no. 31827/96, ECHR 2001-III) in
that the applicants’ choice was not limited to either remaining
silent and having a fine imposed on them or incriminating themselves.
They remained free to disclose the name and address of a third person
as the driver of the car or to show that the car had been used
without their consent by a person unknown to them.
- Given
the public interest in the prosecution of traffic offences and the
minor nature of the fine imposed, section 103(2) of the Motor
Vehicles Act struck a fair balance between the public interest and
the individual car keeper’s interest to remain silent and
therefore appeared proportionate.
B. The Court’s assessment
- The
Court observes that it has recently examined the case of O’Halloran
and Francis v. the United Kingdom ([GC], nos. 15809/02 and
25624/02, ECHR 2007-...), raising similar issues.
- That
case concerned two applicants. Both were registered keepers of a car
which was caught on a speed camera. They were both served with a
notice of the intention to prosecute the driver of the vehicle and
they were asked to furnish the name and address of the driver of the
vehicle pursuant to section 172 of the Road Traffic Act 1988.
Furthermore they were informed that failure to provide that
information was a criminal offence under section 172 of the said Act.
Mr O’Halloran admitted that he had been the driver on the
occasion at issue and attempted, unsuccessfully, to have that
evidence excluded from his trial. He was then convicted of speeding.
Mr Francis refused to give the requested information and was
convicted for the refusal.
- The
Court notes at the outset that the applicability of Article 6 under
its criminal head is not in dispute. Mr Spanner was clearly “charged”
with a criminal offence, since criminal proceedings for the parking
offence were pending against him when he was requested to disclose
the identity of the driver (see paragraphs 19-21 above). Regarding Mr
Lückhof, the Court notes that the order of 12 October 1998
informed him that an administrative offence had been committed with
his car at a specified time and place and in that context he was
ordered to disclose the identity of the driver (see paragraph 8
above). The Court sees little difference between his situation and
the situation of the applicants in O’Halloran and Francis
who received a notice of the intention to prosecute the driver when
being asked to disclose the driver’s identity. Consequently, Mr
Lückhof was “substantially affected” by the order to
disclose the driver in the context of the underlying speeding offence
and, thus, has been “charged” within the autonomous
meaning of that term in Article 6 (see O’Halloran and
Francis, cited above, § 35, with further references).
- For
the remainder, the present case resembles that of Mr Francis, in that
both applicants did not provide the name and address of the driver as
requested and were convicted of failure to comply with their
obligation to give that information.
- In
O’Halloran and Francis (cited above) the Court, having
given a detailed summary of its case-law (namely, Funke, cited
above; John Murray, cited above; Saunders v. the United
Kingdom, judgment of 17 December 1996, Reports 1996 VI;
Serves v. France, judgment of 20 October 1997, Reports
1997 VI; Heaney and McGuinness v. Ireland,
no. 34720/97, ECHR 2000 XII; Weh v. Austria, no.
38544/97, 8 April 2004; Shannon v. the United Kingdom, no.
6563/03, 4 October 2005; and Jalloh v. Germany [GC], no.
54810/00, ECHR 2006 ...) found as follows:
“55. In the light of the principles
contained in its Jalloh judgment, and in order to determine
whether the essence of the applicants’ right to remain silent
and privilege against self-incrimination was infringed, the Court
will focus on the nature and degree of compulsion used to obtain the
evidence, the existence of any relevant safeguards in the procedure,
and the use to which any material so obtained was put.
56. The nature and degree of the compulsion
used to obtain the evidence in the case of Mr O’Halloran, or to
attempt to obtain the evidence in the case of Mr Francis, were set
out in the Notice of Intended Prosecution each applicant received.
They were informed that, as registered keepers of their vehicles,
they were required to provide the full name and address of the driver
at the time and on the occasion specified. They were each informed
that failure to provide the information was a criminal offence under
section 172 of the Road Traffic Act 1988. The penalty for
failure by the applicants to give information was a fine of up to GBP
1,000, and disqualification from driving or an endorsement of three
penalty points on their driving licence.
57. The Court accepts that the compulsion was
of a direct nature, as was the compulsion in other cases in which
fines were threatened or imposed for failure to provide information.
In the present case, the compulsion was imposed in the context of
section 172 of the Road Traffic Act, which imposes a specific duty on
the registered keeper of a vehicle to give information about the
driver of the vehicle in certain circumstances. The Court notes that
although both the compulsion and the underlying offences were
“criminal” in nature, the compulsion flowed from the
fact, as Lord Bingham expressed it in the Privy Council in the case
of Brown v. Stott (see paragraph 31 above), that “All
who own or drive motor cars know that by doing so they subject
themselves to a regulatory regime. This regime is imposed not because
owning or driving cars is a privilege or indulgence granted by the
State but because the possession and use of cars (like, for example,
shotguns ...) are recognised to have the potential to cause grave
injury”. Those who choose to keep and drive motor cars can be
taken to have accepted certain responsibilities and obligations as
part of the regulatory regime relating to motor vehicles, and in the
legal framework of the United Kingdom, these responsibilities include
the obligation, in the event of suspected commission of road traffic
offences, to inform the authorities of the identity of the driver on
that occasion.
58. A further aspect of the compulsion
applied in the present cases is the limited nature of the inquiry
which the police were authorised to undertake. Section 172 (2)(a)
applies only where the driver of the vehicle is alleged to have
committed a relevant offence, and authorises the police to require
information only “as to the identity of the driver”. The
information is thus markedly more restricted than in previous cases,
in which applicants have been subjected to statutory powers requiring
production of “papers and documents of any kind relating to
operations of interest to [the] department” (Funke,
referred to above, § 30), or of “documents etc. which
might be relevant for the assessment of taxes” (J.B v.
Switzerland, cited above, § 39). In the case of Heaney
and McGuinness the applicants were required to give a “full
account of [their] movements and actions during any specified period
...” (referred to above, § 24), and in that of
Shannon, information could be sought (with only a limited
legal professional privilege restriction) on any matter which
appeared to the investigator to relate to the investigation (see
reference at § 23 of the Shannon judgment referred to
above). The information requested of the applicant in the case of Weh
was limited, as in the present case, to “information as to who
had driven a certain motor vehicle ... at a certain time ...”
(Weh judgment cited above, § 24). The Court found no
violation of Article 6 in that case on the ground that no proceedings
were pending or anticipated against him. It noted that the
requirement to state a simple fact – who had been the driver of
the car – was not in itself incriminating (ibid., §§
53-54). Further, as Lord Bingham noted in Brown v. Stott
(paragraph 31 above), section 172 does not sanction prolonged
questioning about facts alleged to give rise to criminal offences,
and the penalty for declining to answer is “moderate and
non-custodial”.
59. The Court in the case of Jalloh
referred to the existence of relevant safeguards in the procedure. In
cases where the coercive measures of section 172 of the 1988 Act are
applied, the Court notes that by section 172(4), no offence is
committed under section 172(2)(a) if the keeper of the vehicle shows
that he did not know and could not with reasonable diligence have
known who the driver of the vehicle was. The offence is thus not one
of strict liability, and the risk of unreliable admissions is
negligible.
60. As to the use to which the statements
were put, Mr O’Halloran’s statement that he was the
driver of his car was admissible as evidence of that fact by virtue
of section 12(1) of the Road Traffic Offenders Act 1988 (see
paragraph 27 above), and he was duly convicted of speeding. At his
trial, he attempted to challenge the admission of the statement under
sections 76 and 78 of the Police and Criminal Evidence Act 1984,
although the challenge was unsuccessful. It remained for the
prosecution to prove the offence beyond reasonable doubt in ordinary
proceedings, including protection against the use of unreliable
evidence and evidence obtained by oppression or other improper means
(but not including a challenge to the admissibility of the statement
under section 172), and the defendant could give evidence and call
witnesses if he wished. Again as noted in the case of Brown v.
Stott, the identity of the driver is only one element in the
offence of speeding, and there is no question of a conviction arising
in the underlying proceedings in respect solely of the information
obtained as a result of section 172(2)(a).
61. As Mr Francis refused to make a
statement, it could not be used in the underlying proceedings, and
indeed the underlying proceedings were never pursued. The question of
the use of the statements in criminal proceedings did not arise, as
his refusal to make a statement was not used as evidence: it
constituted the offence itself (see Allen v. the United Kingdom
(dec.), no. 76574/01, ECHR 2002-VIII).
62. Having regard to all the circumstances of
the case, including the special nature of the regulatory regime at
issue and the limited nature of the information sought by a notice
under section 172 of the Road Traffic Act 1988, the Court considers
that the essence of the applicants’ right to remain silent and
their privilege against self-incrimination has not been destroyed.
63. Accordingly, there has been no violation
of Article 6 § 1 of the Convention.”
- The
Court will examine whether or not the same considerations apply in
the present cases. It will apply the criteria established in
O’Halloran and Francis (cited above, § 55) in the
light of the circumstances of the present cases and with regard to
the provisions of Austrian law here at issue. The relevant criteria
are the nature and degree of the compulsion used to obtain the
evidence, the existence of any relevant safeguards in the procedure
and the use to which any material so obtained was put.
- As
to the nature of the compulsion used in order to seek information,
the Court observes that in Mr Lückhof’s case the order to
disclose the identity of the driver limited itself to drawing his
attention to section 103(2) of the Motor Vehicles Act, that is, to
the legal provision that makes it an obligation for the registered
car keeper to provide such information. No mention was made of the
penalties applicable in the event of failure to comply with the
order. Nevertheless, the Court considers that, in the circumstances,
it must have been clear to the first applicant that failure to comply
with the obligation would entail consequences, for instance the
imposition of a fine. In Mr Spanner’s case the order to
disclose the identity of the driver referred to section 1a taken in
conjunction with section 4(2) of the Vienna Parking Meter Act, which
makes the failure to provide information an offence punishable with a
fine. Although the first applicant’s case is less clear-cut
than the second applicant’s, the Court accepts that in both
cases the compulsion was of a direct nature. The applicants were
obliged on pain of a fine to provide the name and address of the
person who had driven the car on the occasion of the commission of
the underlying traffic offence. Like in O’Halloran and
Francis (cited above, § 57) it can be said that the
compulsion flowed from the fact that owners or drivers of motor
vehicles subject themselves to a regulatory regime involving certain
responsibilities and obligations. In Austria, like in the United
Kingdom, those obligations include the obligation, in the event of
suspected commission of road traffic offences, to inform the
authorities of the identity of the driver on that occasion.
- Regarding
the degree of compulsion, the Court notes that the maximum fines the
applicants risked incurring amounted to ATS 30,000 (2,180 euros
(EUR)) in Mr Lückhof’s case and to ATS 3,000 (EUR 210) in
Mr Spanner’s case. The fines actually imposed amounted to
ATS 1,500 (EUR 105) in the first applicant’s case and to ATS
500 (EUR 36) in the second applicant’s case. In comparison, the
Court notes that the applicants in O’Halloran and Francis
were liable to pay a fine of up to 1000 pounds sterling (GBP) (EUR
1,446) and disqualification from driving or an endorsement of up to
three penalty points on their driving licence (ibid., § 56).
Mr Francis, who refused to give evidence, was actually ordered to pay
a fine of GBP 750 (EUR 1,218) plus procedural costs and three penalty
points. The Court considers that the difference as regards the
penalties at stake is not decisive. The fact that, in Austrian
administrative criminal law, fines are accompanied by default prison
terms does not change that assessment. The default prison terms which
amounted to two days’ imprisonment in Mr Lückhof’s
case and to twelve hours’ imprisonment in Mr Spanner’s
case may only be enforced after the conduct of a separate set of
proceedings and if a number of conditions are met (see paragraph 39
above). Therefore it cannot be said that they brought direct pressure
to bear on the applicants.
- Another
similarity with the case of O’Halloran and Francis
(cited above, § 58) is the limited nature of the inquiry
permitted by section 103(2) of the Motor Vehicles Act and section 1a
of the Vienna Parking Meter Act. By virtue of both provisions the
authorities are only entitled to seek information as regards the name
and address of the person who was the driver of a particular motor
vehicle at a given time and place. In this context the Court
reiterates that in the case of Weh (referred to above, §
24) it has already found that the requirement to state a simple fact,
namely who the driver of the car was, was not in itself
incriminating. Indeed, this distinguishes cases concerning the
registered car keeper’s obligation to disclose the identity of
the driver from other cases, in which the authorities were entitled
to seek comprehensive information or to subject the applicants to
extensive questioning (see Funke, § 30; J.B. v.
Switzerland, § 39; Heaney and McGuinness, § 24;
and Shannon, § 23, all cited above).
- Again,
similarly as in O’Halloran and Francis (cited above, §
59) there are certain safeguards in the procedure. Firstly, section
103(2) of the Motor Vehicles Act states that the authorities are
obliged to verify the information if the circumstances so require.
Secondly, it follows from the general principles of administrative
criminal law (see paragraph 38 above) that the registered car keeper
is not liable to punishment for failure to give information in cases
in which such failure is not at least due to his negligence, for
instance where he is not in a position to provide the information
because the car had been used without his knowledge and consent.
- Finally,
it has already been noted that neither applicant furnished the
information the authorities sought to obtain. Consequently, no issue
arises as regards the use of their statements in the underlying
criminal proceedings. Indeed, the proceedings for speeding in Mr
Lückhof’s case and those for illicit parking in Mr
Spanner’s case were not pursued.
- In
sum, the Court sees no reason in the present case to come to another
conclusion than in the case of O’Halloran and Francis
(cited above, § 62), namely that the essence of the applicants’
right to remain silent and their privilege against self-incrimination
has not been destroyed.
- Accordingly,
there has been no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation
of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 10 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos
Rozakis
Deputy Registrar President
