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Austria and Article 6 of the European Convention
II.
Article 6 of the ECHR guarantees everyone an entitlement to have civil rights and obligations and criminal charges decided by an independent and impartial court (tribunal) established by law. The penal aspect of Article 6 is in conflict with one area of Austrian law, namely administrative penalties.
In Austria, administrative authorities - in the first instance the district administrative authorities (Bezirksverwaltungsbehörden) and in the second instance the offices of the Länder governments - can, in a precisely regulated procedure, decide whether a regulation has been infringed and impose fines or even imprisonment.8 When administering penalties, these administrative authorities are subject to instructions from governmental bodies (federal ministers or Länder governments). Thus, they are not independent within the meaning of Article 6. Moreover, although decisions of the second instance are subject to review by the Administrative Court (VwGH), such review is essentially restricted to questions of law.
To safeguard its administrative penal laws, Austria declared a reservation to the ECHR stating that the provisions of Article 5 of the Convention (sic) would be applied so as not to interfere with the measures for the deprivation of liberty prescribed in the laws on Administrative Procedure, BGBl 1950/172, subject to review by the Administrative Court and Constitutional Court as provided for in the Austrian Federal Constitution. The Administrative Procedure Acts in BGBl 1950/172, however, in fact regulate only the procedures whereby administrative penalties may be imposed; the legal basis for these penalties are laid down in the provisions of offences scattered amongst the various administrative acts. The VfGH has found that it is only through reference to these substantive administrative acts that the reservation acquires any meaning at all. This interpretation has been accepted by the European Commission of Human Rights.9
The fact that the reservation was declared only with respect to Article 5 was no doubt due to the fact that "criminal charges" under Article 6 were at the time of accession understood as referring only to penal proceedings in court. This was soon perceived to be an error, therefore both the VfGH and the European Commission of Human Rights extended the reservation to encompass Article 6.10 The reservation was also extended to pecuniary penalties. In fact, the VfGH went even further; it applied the reservation to penal proceedings to which the Administrative Procedure Acts of 1950 cited in the reservation were not even to be applied. Specifically, the VfGH applied the reservation to financial penal law.11 Thus, in effect, every penalty imposed by an administrative authority and the procedure leading thereto was immune from the legal safeguards of Articles 5 and 6 of the Convention.
These broad interpretations have, however, been gradually cut back in recent years due to the impact of growing criticism. For instance, in 1984 the VfGH restricted the reservation to those areas of administrative penalty law to which the Administrative Procedure Acts of 1950 are to be applied.12 Thus, the VfGH removed financial penal law from the scope of the reservation. Furthermore, in the Apothekerkammer decision of 14 October 1987,13 the VfGH placed disciplinary punishments which are autonomously imposed by professional organizations within the scope of Articles 5 and 6.
The VfGH explicitly stated that in areas not covered by the reservation review by the VwGH was no longer sufficient. The validity of individual charges would have to be decided by a tribunal meeting the criteria of Article 6 in terms of both organizational structure and the procedures for pronouncing penalties. Thus, the VfGH insisted that the agency in charge of the decision be granted independence and impartiality in accordance with the criteria developed in the Strasbourg case law.14
In more recent decisions, the VfGH has further restricted the reservation to offences which were already part of the Austrian legal system at the time of accession to the ECHR.15 In the view of the VfGH, this does not exclude new provisions that fit within the system in force at the time of accession. But the reservation clearly no longer covers substantially new offences, even where the penalty is to be imposed by a procedure under the 1950 Administrative Procedure Acts. Nonetheless, in light of the European Court of Human Rights' case law pertaining to reservations,16 the Austrian reservation to Article 5 remains questionable even despite the restrictions recently introduced by the VfGH. Probably the reservation covers only the few offences actually defined in the 1950 Administrative Procedure Acts, which means that, in effect, it has lost all meaning in practice.
The necessity of administrative penal law reforms has, however, been beyond dispute in Austria for some time. In fact, a push for reform recently led to an amendment to the Federal Constitution Act due to come into force on 1 January 1991.
The reforms enacted by the constitutional legislature follow the case law of the European Court of Human Rights, specifically the ruling in the Ringeisen case17 which concerned Austria. In Ringeisen, the European Court of Human Rights held that a "tribunal", for the purposes of Article 6, may include authorities which, based on the criteria set forth in the Austrian Federal Constitution (Article 133), essentially constitute administrative rather than judicial bodies. Such collegial administrative bodies and their members must, however, be independent from the executive branch. Civil servants may only serve in such administrative organs if they are appointed for a period of at least 3 years and if they are not subject to any instructions from administrative bodies.
With this as a starting point, an amendment to the Federal Constitution Act of 20 November 198818 created a new type of authority: independent administrative senates. These senates are to rule on administrative offences, though only once the administrative stages of appeal have been exhausted. The members of these senates, who are required to have legal training, are to be appointed by the Länder governments for at least six years and it is assumed that they will be recruited largely, if not exclusively, from the civil service of the Länder and the federal government. Therefore work in these senates will probably constitute a stage in the career of an administrative officer. Critics are thus doubtful as to whether these senates will actually be independent.
The principle innovation of the November 1988 amendment is that a procedure before an independent administrative senate has been interposed between the decision of the highest administrative instance and the VwGH. The administrative senates will not decide cases in the first instance, but only after the district administrative authority and the office of the Land government have heard the case.19 At the same time, however, their decisions will not be final. Further appeal to the VwGH against the decision of the administrative senate will still be possible. The administrative senate's power of review will not, however, be confined to questions of law as is that of the VwGH. But it is doubtful, at least in individual cases, whether the taking of evidence can reasonably be carried out after more than a year; consideration of this issue suggests a potential flaw in the new pattern.
As previously noted the new arrangements will enter into force on 1 January 1991. The Austrian reservation regarding Article 5 is expected to be withdrawn on that date.
8 For more on this see Öhlinger, `60 Jahre Verwaltungsverfahrensgesetze - Verwaltungsstrafrechtsreform: Sind die österreichischen Verwaltungsverfahrensgesetze noch zeitgemäß?', Verhandlungen des 9. Österreichischen Juristentages (1985).
9 ECHR 15 December 1961, complaint No 1047/61, YB (1961) 356.
10 VfGH Slg 5021/1965, 6275/1970, 8234/1978, 9158/1981 etc.; European Commission of Human Rights, 3 March 1983, complaint No 8998/80, EuGRZ (1984) 74.
13 VfGH Slg 11506/1987 - Apothekerkammergesetz.
14 See esp. the Ringeisen case.
15 Austria acceded to the ECHR on 3 September 1958. For the recent decisions restricting the reservations see VfGH 16 June 1987, G 141-142/86; 27 November 1987, B 1231/86; 27 November 1987, B 1233/86; 1 October 1988, G 164-166/88.
16 See the Belilos case, EuGRZ (1989) 21.
19 It may be provided by statute that in particular cases the decision of a district administrative authority may be directly challenged before one of the senates.
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