PROCEDURE

The case originated in an application (no. 38544/97) 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 two Austrian nationals, Mr Ludwig Weh and Mrs Evi Weh (“the applicants”), on 8 August 1997.

The applicants were represented by the first applicant, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The applicants alleged, inter alia, that the first applicant's right to remain silent and not to incriminate himself had been breached in criminal proceedings against him.

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.

On 30 January 2001 the Court decided to communicate to the respondent Government both applicants' complaint about the lack of a prosecuting authority before the Vorarlberg Independent Administrative Panel and the first applicant's complaint concerning the alleged violation of his right to remain silent and not to incriminate himself and declared the remainder of the application inadmissible. The Government filed observations on the admissibility and merits. On 7 September 2001 the President of the Third Section refused the applicants' request to include their observations in reply of 8 and 9 August and 3 September 2001, filed outside the time-limit, in the case file (Rule 38 § 1).

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).

By a decision of 4 July 2002 the Court declared the application partly admissible, namely as regards the first applicant's (hereafter “the applicant”) complaint that his right to remain silent and not to incriminate himself had been breached in criminal proceedings against him.

The applicant filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant, Mr W. Weh, was born in 1952 and lives in Bregenz.

On 21 March 1995 the Bregenz District Authority (Bezirkshaupt-mannschaft) served an anonymous order (Anonymverfügung) upon the applicant in the sum of 800 Austrian schillings (ATS). It stated that on 5 March 1995 the driver of the car, registered in the applicant's name, had exceeded the city area speed limit of 50 km/h by 21 km/h.

The applicant did not comply with the anonymous order. Consequently, the order became invalid (see paragraph 31, below).

Subsequently, the Bregenz District Authority opened criminal proceedings for exceeding the speed limit against unknown offenders and, on 27 April 1995, it ordered the applicant as the registered car owner, under section 103 § 2 of the Motor Vehicles Act (Kraftfahrgesetz), to disclose who had been driving his car. The applicant answered that “C.K.[first and family name in full]”, living in “USA/University of Texas” was the person who had used the car.

On 25 July 1995 the Bregenz District Authority issued a provisional penal order (Strafverfügung) in which it sentenced the applicant under sections 103 § 2 and 134 of the Motor Vehicles Act to pay a fine of ATS 900 (with 54 hours' imprisonment in default). It noted that he had submitted inaccurate information.

The applicant filed an objection (Einspruch) against this decision. On 22 August 1995 the Bregenz District Authority requested the applicant to submit his defence either in writing or to appear at an oral hearing. The applicant did not react to this request.

On 18 September 1995 the Bregenz District Authority issued a penal order (Straferkenntnis) confirming its previous decision and sentenced the applicant to a fine of ATS 900 (with 24 hours' imprisonment in default). In addition it ordered him to pay ATS 90 by way of contribution to the costs of the proceedings. The District Authority found that the information supplied by the applicant had been inaccurate.

The applicant appealed to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat).

On 15 April 1996 the Vorarlberg Independent Administrative Panel dismissed the applicant's appeal and ordered him to pay ATS 180 by way of contribution to the costs of the appeal proceedings. Prior to giving its decision, the Panel held a hearing in the presence of the applicant who stated that he considered the information submitted by him to be sufficiently accurate.

The Panel dismissed the applicant's defence, noting that section 103 § 2 of the Motor Vehicles Act required the registered car owner to disclose the name and address of the driver. Further, it referred to the Administrative Court's case-law according to which not only the failure to give any information at all but also the disclosure of inaccurate information amounted to a failure to comply with section 103 § 2. Finally, the Panel observed that the University of Texas had 14 different locations in Texas. Therefore the information provided by the first applicant had indeed been inaccurate.

On 3 June 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He raised various issues regarding the tribunal quality of the Independent Administrative Panel and the fairness of the proceedings. However, given that the relevant sentence of section 103 § 2 of the Motor Vehicles Act has the rank of constitutional law (see paragraph 25, below), he did not raise the issue of his right to remain silent and not to incriminate himself.

On 26 November 1996 the Constitutional Court refused to deal with the applicant's complaint for lack of prospects of success.

On 27 June 1997 the Administrative Court (Verwaltungsgerichtshof) refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) since the amount of the penalty did not exceed ATS 10,000, and no important legal problem was at stake.

The applicant was not prosecuted for exceeding the speed limit.