PROCEDURE

The case originated in an application (no. 19844/08) 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 Michael Becker (“the applicant”), on 22 April 2008.

The applicant was represented by Ms U. Koller, a lawyer practising in Melk. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.

The applicant complained, in particular, that in the proceedings for the withdrawing of his driving licence he did not have a hearing before the Administrative Court.

On 28 September 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1959 and lives in Vienna.

On 3 October 2000 the applicant was stopped by the police at 11.05 p.m. while driving his car on a public road. He was ordered to undergo a breathalyser test. After nine attempts to measure the amount of alcohol, among which only one was valid, the test was discontinued. The applicant’s conduct was considered to amount to a refusal to undergo the breathalyser test and his driving licence was temporarily withdrawn. Two different sets of proceedings were initiated against the applicant.

On 15 December 2000 the Melk District Administrative Authority (Bezirkshauptmannschaft, DAA) issued a decision to withdraw the applicant’s driving licence for a period of four months as a preventive measure to secure road safety. The DAA observed that, according to the case-law of the Administrative Court, it amounted to a refusal to undergo a breathalyser test if the person who had been ordered to undergo the test had made four invalid attempts out of five. According to the statements of police officers W. and R. and the paper print outs of the test results, the applicant had been allowed to make much more attempts, namely nine and only one had produced a valid result. When the applicant had claimed that the breathalyser had been defective, police officer R had made himself two attempts using the same mouthpiece as the applicant and both attempts had produced valid results. The DAA also noted that technical tests of the breathalyser had been carried out on 15 May 2000 and on 9 November 2000 and each time the breathalyser had been found fully functioning. On the basis of this evidence it was safe to conclude that the applicant had refused to undergo the breathalyser test. The DAA also ordered that an appeal had no suspensive effect because it was necessary to avoid the risk that a person lacking trustworthiness for road traffic might drive. Moreover the applicant was ordered to follow driver improvement training before his driving licence would be returned.

The applicant appealed and argued that the DAA should have obtained the report of a technical expert on the functioning of the breathlyser as only such an expert could clarify whether the machine was working properly.

On 19 December 2005 the Lower Austria Regional Governor (Landeshauptmann) dismissed the applicant’s appeal. He found that according to the paper print out of the breathalyser test the applicant had made nine attempts of which only one had been valid whereas during the other attempts the applicant had not blown sufficient air into the mouth-piece. Thereupon two attempts with the same mouth-piece as used by the applicant had been made by police officer R., which both produced valid results. Thus, there were no indications that the breathalyser did not function properly or that it had not been handled correctly by the police officers who had been specially trained for this task. In such circumstances a request for obtaining a report by a technical expert, without giving clear indications in what the malfunctioning of the breathalyser might have consisted, amounted to an inadmissible request for evidence (Erkundungsbeweis). The Regional Governor concluded that refusing to undergo a breathalyser test was as serious as driving under the influence of alcohol because it prevented the authorities from verifying whether a person was actually drunk. The additional measure imposed on the applicant was therefore justified in order to improve his attitude.

On 8 February 2006 the applicant lodged a complaint with the Administrative Court and requested an oral hearing. In his complaint he argued that the Lower Austria Regional Government had not been competent to decide on his case as he resided in Vienna. He further complained about the authority’s assessment of evidence, as the statements of the police officers who had ordered him to undergo the breathalyser test were contradictory and stated that they should be questioned on the precise circumstances in which breathalyser test had been carried out. Lastly he complained that the authority had wrongly applied the law because it should not have refused to obtain the opinion of a technical expert on the functioning of the breathalyser.

On 27 September 2007 the Administrative Court dismissed the applicant’s complaint. It found that on the basis of the evidence before them the authorities had arrived at the conclusion that the applicant had refused to undergo the breathalyser test. The applicant had failed to raise any substantial arguments against these findings and had not shown that the assessment of the evidence carried out by the authorities was contradictory or implausible. In accordance with Section 39 § 2 of the Administrative Court Act (Verwaltungsgerichtshofgesetz) the Administrative Court dismissed the applicant’s request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case. This decision was served on the applicant’s counsel on 25 October 2007.

On 20 April 2001 the DAA issued a penal order (Straferkenntnis) and imposed a fine for refusal to take the breathalyser test.

On 30 April 2001 the applicant appealed.

On 30 September 2005 the Lower Austria Independent Administrative Panel found that, since no decision had been taken within the prescribed time limit of 15 months after the lodging of the appeal, the fine imposed by the DAA had expired ipso iure.