A 24912 COUNCIL OF EUROPE EUROPEAN COMMISSION OF HUMAN RIGHTS: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF Application No. 1452/62 by FCW ir. against Austria The European Commission of Human Rights sitting in private on 18th December 1963, under the presidency of Mr. S. PETREN and the following members being present: MM. L. d. C. BEAUFORT, SUSTDRH&NN, SOREN SLN, ERMA CORA CASTBERG, MAGUIRE, WELTER, BALTA, and Mr. A. B. McNULTY, Secretary to the Commission. Having regard to the Application lodged on 28th May 1962 by BR q jr. against Austria and registered on 20th May 1962 under file No. 1452/62; Having regard to the report provided for in Rule 45, paragraph (1), of the Rules of Procedure of the Commission; Having deliberated, 1452/62 -2 THE FACTS Whereas the facts presented by the Applicant may be summarised as follows: The Applicant is an Austrian citizen, born in 1936 and living in Vienna. He is represented by Dr. Anton Andorfer, a lawyer practising in Vienna. He states that on 19th June 1959 he was convicted by the Federal Police Headquarters (Bundespolizeidirektion) in Vienna on charges of drunken driving under sections 111 and 85/2 of the Motor Vehicles Act (Kraftfahrgesetz) of 1955, and sentenced to two weeks detention pursuant to Section 64(2) of the Administrative Penal Code (Verwaltungsstrafgesetz) of 1950. Upon his appeal (Berufung), this decision was confirmed by the Vienna Provincial Government Office (Wiener Landesregierung) on 29th April 1960. Invoking the provisions of the Convention, the Applicant lodged a constitutional appeal (Verfassungsbeschwerde) with the Constitutional Court (Verfassungsgerichtshof) in Vienna, which was dismissed on 13th October 1960. By the same decision, the case, upon a petition by the Applicant, was remanded to the Administrative Tribunal (Verwaltungsgerichtshof) in Vienna for further consideration on the merits. On 18th October 1961, this Court dismissed the appeal. The decision was communicated to the Applicant on 29th November 1961. The Applicant served the sentence of two weeks imprisonment in February 1962. He complains now that he was wrongly convicted and states that the "proofs" as to his state of intoxication which were accepted by the police and the Courts were given satisfactory medical explanation by the doctor of his family, who was heard on the appeals: a blood test was not taken as he is allergic to injections. He complains, in particular: 1) that he was not granted a fair hearing before the Federal Police Headquarters, in that only prosecuting witnesses were examined, namely, a police officer and the police doctor, whereas witnesses who were to testify in his defence were not heard on the ground that they would "shield" him; 2) that he was refused a second medical opinion which would have proved the fact that he had not been intoxicated; 3) that he was not accorded equal treatment before the law in that usually a much lesser penalty or a fine was imposed for offences of this kind; he maintains that the severe sentence was pronounced on account of the fact that he is the son of the former Secretary-General (also former Minister of Education and President of Parliament) of the Austrian Popular Party (ÖVP), which is the political opponent of the Austrian Socialist Party (SPÖ) of which both the Chief of Police and the Provincial Governor of Vienna are members; 4) that the newspapers had published the decision despite the fact that the hearing was held in camera and before the Applicant was given an opportunity to examine the files, thus leading to the inference that the proceedings were lacking the proper objectivity. In this context, the Applicant quotes extracts from "BildZeitung", "Neuer Kurier" and "Abend-Express". II. The Applicant further complains that the sentence of detention imposed upon him is contrary to Article 5 of the Convention in that he has not been convicted by a Court. He maintains that the reservation made by the Austrian Government upon ratifying the Convention was general in nature and therefore in violation of Article 64 of the Convention. He maintains, in particular, that the reservation reading: "The provisions of Article 5 of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the Laws on Administrative Procedure (BGBL No. 172/1950), subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution", does not comply with Article 64, paragraph (2), of the Convention, in that it does not contain a brief statement of the law concerned. Whereas the Applicant alleges a violation of Article 5, paragraph (1), subparagraphs (a) and (b) and paragraphs (4) and (5), Article 6, paragraph (3), and Article 14 of the Convention. He also claims compensation for the damage suffered by him. THE LAW As regards the alleged violation of Article 5 of the Convention; Whereas the Commission refers to its findings in its decision on the admissibility of Application No. 1047/61 (G v. Austria - Yearbook IV, p. 356) in which it held as follows: "Whereas at the time of its ratification of the Convention the Austrian Government made the following reservation in respect of the Article invoked by the Applicant: 'The provisions of Article 5 of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBL No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution.'" Whereas it has first to be pointed out that in its original German text the reservation contains the words "Die in den Verwaltungsverfahrensgesetzen BGBL. No. 172/1950 vorgesehenen Maßnahmen des Freiheitsentzugs"; whereas a more exact translation of the word "vorgesehenen" would be "provided for" and not "prescribed in"; whereas, in order to determine the exact scope and intention of a reservation, which in this particular case was deposited in the German language only, regard should be had to the wording used in the original language and not to an approximate translation; whereas, consequently, the Commission has to consider the present Application and, in particular, the alleged violation of Article 5 in the light of the original text of the reservation; Whereas the Administrative Penal Code (BGBL. 172/1950) in Articles 10 and 11 provides as follows: "Penalties: Paragraph 10 (1) The category and extent of the punishment are determined by administrative regulations. (2) Whereas, accordingly, punishment of deprivation of liberty or of a fine or of confiscation of property is applicable, the provisions of paragraphs 11 to 22 shall apply. Imprisonment: Paragraph 11 (1) Imprisonment is either close arrest or house arrest. (2) The minimum duration of imprisonment is six hours. (3) In the case of a term of imprisonment, one day is equivalent to 24 hours, one week equivalent to seven days, while the duration of a month is to be determined by the calendar." Whereas "administrative regulations" within the meaning of paragraph 10 (1) cover any enactments which deal with administrative matters and which give the administrative authorities the power to impose imprisonment as a penalty for any offences against such enactments; Whereas the Motor Vehicles Act and the Road Traffic Act are properly to be considered as enactments dealing with administrative matters and indeed they refer to "administrative offences" (Verwaltungsübertretungen), and provide for the penalty of imprisonment in regard to such offences; Whereas, accordingly, the Motor Vehicles Act and the Road Traffic Act are to be regarded as “administrative regulations" within the meaning of paragraph 10 (1) of the Administrative Penal Code; Whereas reservations to the Convention are governed by Article 64, which states: (1) Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article. (2) Any reservation made under this Article shall contain a brief statement of the law concerned; Whereas Article 64 by its plain terms permits the making of a reservation only with respect to laws which were already in force when the reservation was made; and whereas the Austrian reservation was made on 3rd September 1958, the date on which Austria deposited its instrument of ratification of the Convention with the Secretary-General of the Council of Europe; Whereas the Commission is satisfied that the two Acts under which the Applicant was charged in the present case were enacted prior to 3rd September 1958, namely, the Road Traffic Act in 1947 and the Motor Vehicles Act in 1955; whereas these two Acts were "in force" when Austria adhered to the Convention; Whereas, therefore, the reservation made by the Austrian Government as to Article 5 of the Convention in any case extends to the legislation which was applied to the Applicant; Whereas it follows that the present Application, which raises an identical issue under Articles 5 and 64 of the Convention with regard to the same administrative Acts, is, in this respect, incompatible with the provisions of the Convention in regard to their application to Austria and must be rejected in accordance with Article 27, paragraph (2), of the Convention; As regards the alleged violation of Article 6 of the Convention Whereas the allegations which the Applicant makes in respect of Article 6 of the Convention relate to the proceedings before the administrative instances whose decisions are expressly covered by the above reservation made by the Austrian Government; whereas it is true that this reservation does not make any express reference to Article 6 of the Convention; whereas, however, the Commission finds that these proceedings must be viewed as a whole and cannot be considered as comprising separate stages, to some of which the provisions of the Convention apply and some of which the Application is excluded by the reservation; whereas it was no doubt the intention of the Respondent Government to exempt from the incidence of the Convention the procedural system set up in conformity with the laws on administrative procedure; whereas the Commission, in interpreting the terms of the reservation, has taken into consideration the clear intention of the Government (cf. Application No. 473/59, Yearbook, Vol. 2, page 403); whereas, accordingly, the above reservation must be extended to cover not only "the measures for the deprivation of liberty" but also the proceedings leading up to a decision by which an accused person is deprived of his liberty in accordance with the Acts mentioned in the reservation; whereas it follows that in the present case the reservation not only applies to the deprivation of the Applicant's liberty, but also to the prior proceedings before the Federal Police Headquarters in Vienna and the Vienna Provincial Government Office; whereas it follows that this part of the Application is incompatible with the provisions of the Convention in respect to their application to Austria and must be rejected in accordance with Article 27, paragraph (2), of the Convention; As regards the alleged violation of Article 14 of the Convention Whereas it is to be observed that by its express terms Article 14 guarantees that there shall be no discrimination with reference only to the enjoyment of the rights and freedoms set forth in the Convention; whereas in this respect the Commission refers to its decisions on the admissibility of Applications Nos. 511/59 (G v. Iceland, Yearbook Vol. 3, p. 394) and 511/59 (S. v. Sweden - Yearbook Vol. 3, p. 198); whereas, as held above, the Applicant has not established that his rights and freedoms under the Convention were violated during the proceedings before the Federal Police Headquarters of Vienna and the Vienna Provincial Government Office; whereas, consequently, Article 14 finds no application in the present case; whereas it follows that this part of the Application is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2), of the Convention; Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (A. B. McNULTY) (S. PETREN)