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Camera di consiglio amministrativa e art. 6 CEDU (Corte EDU, 19844/08)

11 Giugno 2015, Corte Europea dei diritti dell'uomo

La CEDU sancisce il diritto a una pubblica udienza dinanzi all'organo giurisdizionale,  salve circostanze eccezionali (es. questioni legali o altamente tecniche).

Il ricorrente, sig. M. Becker, è un cittadino austriaco residente a Vienna. Con il suo ricorso dinanzi alla Corte di Strasburgo egli lamenta la mancanza di un?udienza nell?ambito del procedimento di ritiro della sua patente. Nell?ottobre 2000, l?odierno ricorrente è stato arrestato dalla polizia mentre guidava la sua auto ed è stato invitato a sottoporsi a un alcoltest.

Dopo nove tentativi di misurare il suo tasso alcolemico, uno solo dei quali è stato portato a termine, il test è stato interrotto. La condotta dell?interessato è stata considerata come costitutiva di un rifiuto a sottoporsi a un test e la sua patente gli è stata, quindi, provvisoriamente ritirata.

L?autorità amministrativa competente in materia ha pronunciato una decisione di ritiro della patente dell?interessato per quattro mesi. Essa ha rilevato che uno dei poliziotti presenti aveva effettuato egli stesso il test in questione mediante lo stesso apparecchio e che il risultato era valido. Inoltre essa ha considerato che dei test tecnici avevano consentito di stabilire il buon funzionamento dell?apparecchio usato. Nel dicembre 2005, il governo regionale ha respinto il ricorso del sig. Becker contro la decisione e nel settembre 2007 la corte amministrativa ha del pari respinto il ricorso dell?interessato,rilevando, in particolare, che un?udienza non avrebbe verosimilmente chiarito la vicenda.

Per contro, il sig. Becker faceva valere che la mancanza di un?udienza nell?ambito del procedimento di ritiro della sua patente di guida aveva violato l?articolo 6, paragrafo 1 della Convenzione europea per la salvaguardia dei diritti dell?uomo.

Ad avviso della Corte, nel caso di specie vi è stata una violazione dell?articolo 6, paragrafo 1, della Convenzione summenzionata, ma che la constatazione di tale violazione costituisce di per sé un?equa soddisfazione per qualsiasi danno morale subito dal sig. Becker. In particolare, la Corte ha rilevato che mentre le prime decisioni summenzionate sono state pronunciate da autorità puramente amministrative, quali l?Autorità amministrativa del distretto di Melk e il Governatore della bassa Austria, un?ulteriore decisione è stata pronunciata dalla Corte amministrativa. Trattandosi, in questo caso, di un vero e proprio organo giurisdizionale, si deve rilevare che nessuna udienza si è svolta dinanzi a tale corte amministrativa, nonostante il ricorrente lo avesse richiesto esplicitamente.


Il ricorrente era, pertanto, titolare, in principio, del diritto a una pubblica udienza dinanzi a tale Corte, primo e vero giudice ad esaminare la sua vicenda, salve circostanze eccezionali che giustificassero la mancanza di tale udienza.

La Corte ha riconosciuto tali circostanze eccezionali in cause in cui i procedimenti riguardavano esclusivamente questioni legali o altamente tecniche (v. Schuler-Zgraggen c. Svizzera, 24 giugno 1993, § 58, Serie A n. 263; Varela Assalino c. Portogallo (dec.), n. 64336/01, 25 Aprile 2002; e Speil c. Austria (dec.) n. 42057/98, 5 Settembre 2002).

Guardando, invece, al caso di specie, la Corte osserva che la controversia, come presentata dal ricorrente dinanzi alla Corte amministrativa, comportava questioni legali e questioni di fatto.

In particolare, il ricorrente contestava il fatto che la sua condotta durante il controllo di polizia corrispondesse ad un diniego di sottoporsi all?alcoltest e ha chiesto al giudice di assumere ulteriori elementi di prova a tal riguardo, quali assumere la testimonianza degli ufficiali di polizia che hanno svolto tale controllo e ottenere una relazione di un esperto tecnico.

La Corte amministrativa non ha fornito alcuna motivazione in relazione al perché essa abbia considerato non necessaria un?udienza e si sia limitata a dichiarare che tale udienza non avrebbe verosimilmente potuto contribuire a chiarire la vicenda. Del pari, il Governo non ha identificato nessun?altra circostanza eccezionale che potrebbe aver giustificato il non procedere a un?udienza.

In proposito, la Corte rammenda di aver riscontrato una violazione dell?articolo 6, paragrafo 1, della Convenzione in esame in una nutrita serie di vicende simili (v. ad esempio, Gabriel c. Austria, n. 34821/06, § 31, 1 aprile 2010; Koottummel c. Austria, n. 49616/06, § 21, 10 dicembre 2009; Emmer-Reissig c. Austria, n. 11032/04, § 31, 10 maggio 2007; Hofbauer c Austria, n. 7401/04, § 30, 10 maggio 2007; Brugger c. Austria, n. 76293/01, § 25, 26 gennaio 2006; Schelling c. Austria, n. 55193/00, § 33, 10 novembre 2005).

Non riscontrando ragioni che possano portarla a decidere diversamente, la Corte ha, pertanto, riscontrato anche nel caso di specie la predetta violazione.

 

European Court of Human Rights

CASE OF BECKER v. AUSTRIA

 Application no. 19844/08

 11 June 2015

 Having deliberated in private on 19 May 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  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.

2.  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.

3.  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.

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

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1959 and lives in Vienna.

6.  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.

7.  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.

8.  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.

9.  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.

10.  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.

11.  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.

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

13.  On 30 April 2001 the applicant appealed.

14.  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.

II.  RELEVANT DOMESTIC LAW

15.  The relevant provisions of the Driving Licence Act, as in force at the time of the events, read as follows:

Section 3

(1)  A person may only be issued a driving licence if he or she:

...

2.  is trustworthy for road traffic (verkehrszuverlässig - section 7),

Section 7 (1)

?(1)  A person is considered trustworthy for road traffic unless, on the ground of specific and proven facts (paragraph 3) and their evaluation (paragraph 5) it must be assumed that he or she because of his or her character will endanger road security when driving, in particular because of being reckless, drunken or under the influence of drugs or medicines.

...

(3)  Specific facts within the meaning of paragraph 1 are in particular if a person:

1.  has driven a vehicle ... and committed an offence pursuant to Section 99 (1) of the Road Traffic Act even if the act falls under Section 83 of the Security Police Act;

2.  while driving a vehicle under the influence of alcohol or drugs has committed an act which constitutes a criminal offence falling under the jurisdiction of the ordinary criminal courts and therefore this act would not be punishable as an administrative offence pursuant to Section 99 (6) c. of the Road Traffic Act;

....

(5)  When evaluating the facts mentioned as examples in paragraph 3, the authority must consider the graveness of the acts, to what extent they were committed under dangerous circumstances, the time elapsed since and the conduct during this time.

...?

Section 24

?(1)  If the holder of a driving licence does no longer possess the qualifications required for obtaining a driving licence (Section 3 (1)), the authority must, according to the requirements of road traffic security,

1.  withdraw the driving licence or

...

(3)  In case of withdrawing a driving licence the authority may also order additional measures (supplementary training, driver improvement training with or without a driving test, behavioural and attitude training). ...?

Section 25

?(1)  When withdrawing a driving licence also the period of its withdrawal must be fixed. This period is fixed on the basis of the results of the investigations.

.....

(3)  If a driving licence is withdrawn for lack of trustworthiness for road traffic (Section 7), the minimum period is three months. If additional measures according to Section 24 (3) have been imposed, the time of withdrawal does not expire before this order has been complied with.?

16.  The relevant provisions of Section 99 of the Road Traffic Act, as in force at the time of the events, read as follows:

?(1)  It shall be an administrative offence (Verwaltungsübertretung), punishable by a fine of not less than 16,000 Schilling (Austrian Schillings, ATS) and not more than ATS 80,000 or, in default of payment, with two to six weeks? imprisonment, for any person:

(a)  to drive ... a vehicle when his blood contains 1.6 g/l (1.6Promille) alcohol or more or when his breath contains 0.8 mg/l alcohol or more;

(b)  to refuse to take a test to show whether his or her breath contains alcohol, if the conditions under Section 5 of this Act are met or, under the same conditions, to refuse an examination by a medical officer;

...

(6)  It is not an administrative offence if

...

c.  an act according to this law ... qualifies as a criminal offence falling within the jurisdiction of the ordinary criminal courts.?

17.  Section 83 (1) of the Security Police Act (Sicherheitspolizeigesetz), as in force at the relevant time, reads as follows:

?Whoever puts himself in a state of intoxication excluding criminal responsibility and commits in this state an act which, if not in this state, would constitute an Administrative offence, commits an administrative offence and will be punished by a fine of up to ATS 3,000.?

18.  Article 144 (1) of the Federal-Constitution Act, as in force at the relevant time and relevant, reads as follows:

?The Constitutional Court decides on complaints against decisions of administrative authorities and independent administrative panels insofar the applicant complains that there has been a breach of his rights guaranteed by the federal constitution ... The complaint can only be raised after all remedies have been exhausted.?

19.  According to the Federal Constitution Act of 4 March 1964 the Convention has the status of constitutional law in Austria (Federal Law Gazette nr. 59/1964), The same is true for Protocol no. 7 according to a decision of the Austrian National Council published in Federal Law Gazette no. 628/1988.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE LACK OF A PUBLIC AND ORAL HEARING

20.  The applicant complained that in the proceedings on the withdrawal of his driving licence no oral public hearing was held, which was in breach of Article 6 § 1 of the Convention. Article 6 § 1, insofar as relevant, reads as follows:

?1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.?

A.  Admissibility

21.  The Government argued that the complaint was incompatible ratione materiae with the provisions of the Convention because Article 6 did not apply to the proceedings on the withdrawal of the applicant?s driving licence, because these proceedings determined neither the applicant?s civil rights nor a criminal charge against him.

22.  As regards the criminal limb of Article 6 § 1, the Government submitted that, according to section 3 of the Driving Licence Act, a driving licence can only be issued to a person who is trustworthy for road traffic, in a good state of health and possesses the necessary skills. If a person loses one of these qualities, their driving licence must be withdrawn. When the provisions on the withdrawal of a driving licence were enacted by Parliament, the legislator stated expressly that this measure was a protective measure and not a punishment, and this is also the constant case-law of the Administrative Court and the Constitutional Court. Thus, the withdrawal of a driving licence on the one hand and punishment for a traffic offence on the other are distinct proceedings which are not linked to each other. Moreover, withdrawing a driving licence is not only a security measure for protection against the danger caused by unfit drivers, but is also designed to have an educative impact on the driver concerned and, for this reason, educational measures can also be imposed. The applicant?s driving licence was withdrawn for a period of four months as he was no longer considered trustworthy on the roads on account of his conduct during a driver and vehicle inspection. This measure was accompanied by the obligation to undergo additional training before his licence could be given back to him. Taking into account the time for which the driving licence was withdrawn, that the measure was imposed without undue delay and accompanied by additional measures, it is apparent that it did not constitute a criminal sanction falling under Article 6 § 1 of the Convention.

23.  As regards the civil limb of Article 6 § 1, the Government argued that the proceedings for the withdrawal of a driving licence did not involve the determination of the applicant?s civil rights and obligations either. The withdrawal of the driving licence for a short period of time neither affected his property rights nor hindered him in exercising his profession as a dentist, as a driving licence is not a prerequisite for exercising this profession.

24.  Theapplicant submitted that Article 6 § 1 applied to the proceedings on the withdrawal of his driving licence because these proceedings were criminal in nature. The wording used in Article 7 of the Driving Licence Act, which was similar to that used in criminal law, exhibited a punitive element. Also, the time for which his driving licence was revoked was particularly long, and the obligation to attend corrective training in order to regain his driving licence constituted a heavy sanction. Lastly, his driving licence was of vital importance for him because he had to commute regularly from Vienna to his dental surgery in Pöchlarn, which was a significant distance from Vienna. Therefore the sanction imposed was sufficiently severe to qualify as criminal.

25.  The Court has first to examine whether Article 6 § 1 of the Convention applies to the proceedings at issue. In doing so, the Court will first examine whether the proceedings for withdrawing the applicant?s driving licence were ?criminal? within the autonomous meaning of the Article. In doing so, it will have regard to three criteria: the first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not rule out a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, as recent authority, Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 53, ECHR 2009).

26.  As regards the legal qualification of the measure in national law, the Court notes that under Austrian law the withdrawal of a driving licence, pursuant to Section 24 of the Driving Licence Act, if a person no longer possesses the qualification required for obtaining a driving licence, is not provided for in criminal law or administrative criminal law but is a measure governed by ordinary administrative law provisions. Classification in domestic law is not, however, decisive for the purposes of the Convention, having regard to the autonomous and substantive meaning to be given to the term ?criminal charge? (cf. Demicoli v. Malta, 27 August 1991, § 31, Series A no. 210).

27.  As to the second criterion, the nature of the measure at issue, the Court observes that the applicant?s driving licence was immediately seized and withdrawn by the police officers who had inspected his vehicle, and examined him as the driver, and who had found that there was an imminent danger that the applicant was no longer fit to drive. This measure was confirmed by the Melk District Administrative Authority for a period of four months and immediately enforced. Moreover, the applicant?s driving licence was not only withdrawn but the authority also ordered him to undergo training before the driving licence could be returned to him. The Court therefore considers that the measure at issue did not have primarily a punitive character but rather constituted a preventive measure for the safety of road users (Escoubet v. Belgium [GC], no. 26780/95, § 37, ECHR 1999?VII; a contrarioTabet v. France (dec.), no. 12922/03, 3 November 2005, Sprotte v. Germany (dec.), no. 72438/01, 17 November 2005, and Nilsson v. Sweden (dec.), no. 73661/01, 13 December 2005).

28.  As regards the third element, the degree of severity of the penalty, neither the withdrawal of the applicant?s driving licence for the period at issue, nor the imposition of additional measures such as driver improvement training constituted a criminal sanction due to the applicant?s conduct. The relevant rules of the Driving Licence Act do not presuppose any finding of guilt and their application is totally independent of any criminal proceedings which may be brought in relation to an alcohol test being taken or the refusal to take such a test. In the present case the applicant was not convicted for refusing to take a breathalyser test. Lastly, the time for which the applicant?s driving licence had been withdrawn, a period of four months, was not so significant that it would ordinarily be viewed as a criminal sanction.

29.  The Court therefore considers that the criminal limb of Article 6 § 1 does not apply to the proceedings at issue. It has to examine next whether the civil limb of Article 6 § 1 is applicable.

30.  In this respect it reiterates for Article 6 § 1 in its ?civil? limb to be applicable, there must be a dispute (contestation in the French text) over a ?civil right? which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, inter alia, Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000?X; Gülmez v. Turkey, no. 16330/02, § 28, 20 May 2008). The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, and so on) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, and so forth) are therefore of little consequence (Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009).

31.  As regards the existence of a right recognised in domestic law the Court observes that from the relevant Austrian legislation it is apparent that in granting driving licence the competent authority does not have particularly broad discretion but rather that one is entitled to obtain a driving licence if he or she satisfies the criteria set out in Section 3 of the Driving Licence Act (see Masson and Van Zon v. the Netherlands, 28 September 1995, § 51, Series A no. 327?A). While the Melk District Administrative Authority considered that the applicant did no longer fulfil these criteria and that his driving licence had therefore to be withdrawn, the applicant contested these findings. Thus there was a dispute on a right recognised in domestic law.

32.  Turning to the question whether this right is civil in nature, the Court observes that in the case of Junnila v. Finland it had found that, since the proceedings at issue concerned the withdrawal of the applicant?s professional driving licence, which he needed to exercise his profession as a lorry driver, they involved the determination of his civil rights and it was concluded that Article 6 was applicable to the proceedings (see Junnila v. Finland (dec.), no. 62963/00, 13 January 2004).

33.  In the present case, however, the applicant is a dentist. Even though a driving licence might facilitate commuting from his home to his dental surgery, there is nothing to show that a driving licence was a pre-condition for exercising his profession. The Court, however, would consider it artificial to conclude in this case that for this reason alone Article 6 § 1 of the Convention would not apply, as, depending on the particular circumstances of a case the very same licence or permit might or might not be considered for the purpose of Article 6 § 1 a precondition for exercising a specific profession.

34.  The Court finds that there is no reason that the withdrawing of a driving licence should fall as such outside the civil head of Article 6 § 1. Moreover, it is not in dispute that in the present case the applicant had access to the Administrative Court. Accordingly, the civil limb of Article 6 § 1 is applicable to the proceedings at issue

35.  The Court further finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties? submissions

36.  The applicant submitted that a public hearing in the proceedings for the withdrawal of his driving licence had been necessary because in such a hearing before the Administrative Court he could have addressed questions of fact, namely whether he had actually been unable to achieve a valid breathalyser result or whether, as argued by the authorities, he had attempted to achieve invalid results on purpose. On that matter an expert should have given his or her opinion at trial and the applicant should have been given the opportunity to discuss these results. However, he had been denied a public hearing, in breach of Article 6.

37.  The Government submitted that even if Article 6 would apply to the proceedings at issue, there was no breach of Article 6 because, in the particular circumstances of the case, an oral hearing before the Administrative Court was not necessary. In his complaint to the Administrative Court the applicant had not raised any question of fact or law which could not have been dealt with adequately on the basis of the file.

2.  The Court?s assessment

38.  The Court notes that the applicant?s case was considered by the Melk District Administrative Authority and the Lower Austria Regional Governor, i.e. purely administrative authorities, and then by the Administrative Court. The applicant did not contest that the Administrative Court qualifies as a tribunal, and there is no indication in the file that the Administrative Court?s scope of review was insufficient in the circumstances of the case. Thus, the Administrative Court was the first and only tribunal which examined the applicant?s case (see Koottummel v. Austria, no. 49616/06, § 18, 10 December 2009; Schelling v. Austria, no. 55193/00, § 29, 10 November 2005). No hearing was held before the Administrative Court, even though the applicant had explicitly requested one. There is accordingly no question of the applicant having waived that right.

39.  The applicant was thus in principle entitled to a public oral hearing before the first and only tribunal examining his case, unless there were exceptional circumstances which justified dispensing with such a hearing. The Court has accepted such exceptional circumstances in cases where proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; and Speil v. Austria (dec.) no. 42057/98, 5 September 2002).

40.  Turning to the circumstances of the present case, the Court notes that the dispute, as presented by the applicant to the Administrative Court, involved legal issues but also questions of fact. In particular the applicant contested that his conduct during the police control amounted to a refusal of the breathalyser test and asked the court to take additional evidence in this respect such as hearing the police officers involved and obtain a report by a technical expert.

41.  The Administrative Court gave no reason why it considered a hearing to be unnecessary other than stating that this was not likely to contribute to the clarification of the case (see paragraph 10 above). Nor have the Government identified any other exceptional circumstances that might have justified dispensing with a hearing. In this respect the Court notes that it has found violations of Article 6 § 1 of the Convention in a number of similar cases (see, for instance, Gabriel v. Austria, no. 34821/06, § 31, 1 April 2010; Koottummel v. Austria, no. 49616/06, § 21, 10 December 2009; Emmer-Reissig v. Austria, no. 11032/04, § 31, 10 May 2007; Hofbauer v  Austria, no. 7401/04, § 30, 10 May 2007; Brugger v. Austria, no. 76293/01, § 25, 26 January 2006; Schelling v. Austria, no. 55193/00, § 33, 10 November 2005). It does not see any reason to come to a different conclusion in the present case.

42.  There has accordingly been a violation of Article 6 of the Convention.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

43.  The applicant complained under Article 6 of the Convention that the proceedings were unfair in that the domestic authorities did not assess the evidence properly. Under Article 4 of Protocol No. 7 he complained that his right not to be punished twice had been violated because, even though the penal order was no longer in force, his driving licence had actually been withdrawn.

44.  However, the Court is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions as, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted.

45.  The Court observes that the applicant did not file a complaint with the Constitutional Court. In this respect the Court notes that under Article 144 of the Federal Constitution-Act, as in force at the relevant time, the Constitutional Court was competent to decide on complaints against decisions by administrative authorities including independent administrative panels ? but not decisions taken by the Administrative Court, in which breaches of rights guaranteed by the federal constitution were alleged. The above complaints relate to Article 6 of the Convention and Article 4 of Protocol no. 7, which under Austrian law are part of the constitutional order (see paragraph 19 above), and the applicant could therefore have raised these matters in a complaint before the Constitutional Court. However, he failed to do so and has therefore not exhausted domestic remedies as required by Article 35 § 1 of the Convention

46.  It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

47.  Article 41 of the Convention provides:

?If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.?

A.  Damage

48.  The applicant claimed 861.17 euros (EUR) in respect of pecuniary damage. He submitted that he had to make these expenses in order to have his driving licence returned to him. He further claimed EUR 4,000 in respect of non-pecuniary damage.

49.  The Government commented that there was no causal link between the violation alleged and the pecuniary and non-pecuniary damage claimed by the applicant. They further contended that the finding of a violation constituted sufficient reparation in respect of any non-pecuniary damage suffered.

50.  The Court reiterates that it cannot speculate what the outcome of the proceedings would be if they had been in conformity with Article 6 of the Convention. Accordingly, it dismisses the claim for damages for pecuniary loss. Further, the Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage the applicant may have sustained in the present case (Brugger v. Austria, no. 76293/01, § 31, 26 January 2006).

B.  Costs and expenses

51.  The applicant also claimed EUR 4,707.88 for the costs and expenses incurred before the domestic authorities and courts and EUR 1,634.76 for those incurred before the Court.

52.  The Government contested the claim. They submitted that the costs of the applicant?s representation in the domestic proceedings had not been caused by the alleged violations, as they would have been incurred in any event. Moreover, the amounts claimed were excessive.

53.  According to the Court?s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, it does not appear from the applicant?s submissions that any specific costs were incurred in relation to the demand for an oral hearing. Therefore no award can be made under this head.

54.  As regards the costs and expenses incurred before the Court, the Court notes that the applicant, who was represented by counsel, did not have the benefit of legal aid. It considers it reasonable that the sum claimed should be awarded in full. It therefore awards the applicant EUR 1,634.76 for costs and expenses, plus any tax that may be chargeable to the applicant on this amount.

C.  Default interest

55.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint concerning the lack of a public hearing admissible and the remainder of the application inadmissible;

 

2.  Holdsthat there has been a violation of Article 6 of the Convention;

 

3.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

 

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,634.76 (one thousand six hundred thirty four euros and seventy six cents) plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses the remainder of the applicant?s claim for just satisfaction.

Done in English, and notified in writing on 11 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Søren Nielsen              Isabelle Berro
              Registrar              Presiden