PROCEDURE

The case originated in an application (no. 32381/96) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Erwin Baischer (“the applicant”), on 29 May 1996.

The applicant was represented before the Court by Mr Estermann, a lawyer practising in Mattighofen (Austria). The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs

The applicant alleged that in criminal proceedings against him relating to an administrative offence no oral hearing has been held.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

By a decision of 16 January 2001 the Court declared the application admissible.

As from 1 November 2001 the application was reallocated to the First Section of the Court. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

Neither the applicant nor the Government filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

On 9 November 1994 the Braunau District Administrative Authority (Bezirks­hauptmannschaft) convicted the applicant twice under the Motor Vehicles Act (Kraftfahrgesetz) for failure to comply with the instructions of the Authority to inform them who had used his car on specific days (Lenkerauskunft), and sentenced him, on each offence, to a fine of 4,000 ATS or six days’ imprisonment in default. The Authority noted that the applicant had given information but found it to be incorrect.

On 29 November 1994 the applicant filed an appeal against this decision with the Upper Austrian Independent Administrative Panel (Unabhängiger Verwaltungssenat). He complained that the District Administrative Authority had incorrectly applied the law and failed to sufficiently assess the evidence before it or clarify why the information he had given was untrue. The applicant did not request a hearing, nor did he expressly waive this right. No oral hearing was held.

On 2 January 1995 the Independent Administrative Panel dismissed the appeal on the merits but reduced the sentence.

On 28 February 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained under Article 6 § 1 of the Convention that the Independent Administrative Panel had failed to hold a hearing. Such a hearing would have been necessary because his appeal was not limited to points of law. He had also criticised the District Administrative Authority’s assessment of evidence. Therefore an oral hearing would have been necessary. In such a hearing the Independent Administrative Panel could have properly assessed this evidence, which had already been obtained at first instance, as well as fresh evidence.

On 13 July 1995 the Constitutional Court declined to deal with the applicant’s complaint on the ground that it did not have sufficient prospects of success. Upon a request filed by the applicant on 10 August 1995, the Constitutional Court transferred the case to the Administrative Court (Verwaltungsgerichtshof).

On 23 February 1996 the Administrative Court, relying on Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz), declined to deal with the applicant’s case, finding that it did not raise important legal issues. On 10 May 1996 this decision was served on the applicant’s lawyer.
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CODE
DIRECT
32381/96
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ORG
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Republic of Austria
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DEM
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Austrian
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PERSON
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Erwin Baischer
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DATETIME
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29 May 1996
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PERSON
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Mr Estermann
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Mattighofen
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Austria
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Austrian Government
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H. Winkler
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International Law Department
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Federal Ministry for Foreign Affairs
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16 January 2001
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9 November 1994
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Braunau District Administrative Authority (Bezirks­hauptmannschaft)
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QUANTITY
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4,000 ATS
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six days
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29 November 1994
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Upper Austrian Independent Administrative Panel (Unabhängiger Verwaltungssenat)
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District Administrative Authority
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2 January 1995
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Independent Administrative Panel
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28 February 1995
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Constitutional Court (Verfassungsgerichtshof)
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District Administrative Authority
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Independent Administrative Panel
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13 July 1995
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Constitutional Court
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10 August 1995
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Constitutional Court
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Administrative Court
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DATETIME
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23 February 1996
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Administrative Court
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10 May 1996
Erwin Baischer
AUT
CHAMBER
Task: Annotate the document to anonymise the following person: Erwin Baischer