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A driver survey (driver information) is a regulation standardized in the Austrian Motor Vehicle Act ( Section 103 (2 ) Motor Vehicle Act ) that allows authorities ( district administrative authorities and state police departments ) to request information from a registered owner about who was driving a motor vehicle at a certain point in time .

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Application areas and requirements

The main area of ​​application are major violations of the Austrian road traffic regulations . Minor fines are always in Austria to the registered owner directed, regardless of who it has drawn vehicle or who was entrusted to it ( Anonymous available ) .

The authority carries out the driver survey either because the alleged offense is too serious for an anonymous disposal or because it was not paid for. Driver surveys are to be carried out by the authority responsible for exercising administrative criminal law, provided that it is a district administrative authority or a state police department. Surveys, for example by the officers of the guard body of the Federal Police on their own initiative, are not a driver's survey within the meaning of the law, due to the lack of official quality of the guard body. Failure to provide information only upon request does not reflect the offense of Section 103 (2) KFG.

The information is to be given immediately, in the case of a written request, within two weeks of delivery; if such information could not be provided without corresponding records, these records must be kept. This information, which must contain the name and address of the person concerned, must be provided by the registered owner - in the case of test drives or transfer drives, the holder of the license; if he cannot provide this information, he must name the person who can provide the information, who then has the obligation to provide information. The cited surveys must be carried out in writing or by telephone, except in the case of imminent danger.

In relation to the authority of the authority to request such information, the rights to refuse to provide information are withdrawn. This is a constitutional provision. If the driver's license is still refused or answered incorrectly, this can be punished with a fine of up to 5000 euros or six weeks' imprisonment. According to the case law of the Higher Administrative Court, “the designation of a person who is permanently or predominantly abroad and whose prosecution under administrative criminal law, but also whose involvement in the administrative investigation procedure is at least considerably more difficult, as a driver within the meaning of Section 103 (2) KFG 1967 the registration holder to an increased participation in the administrative (criminal) proceedings. If its attempt to get in contact with the person designated as the driver fails, the authority can urge the registration holder to at least make credible the existence of this person and their residence in Austria at the time in question. In this context, it can be assumed that a registered owner only leaves his motor vehicle to people who he knows better. "

The prerequisite for conducting a driver survey is that the alleged traffic offense has been committed in Austria. However, the law does not provide for a time limit on the obligation to provide information or the retention of records in order to be able to meet this obligation. Accordingly, the driver information must also be issued after the statute of limitations has expired.

history

The driver survey in Austria had been standardized in Section 89 (3) of the Motor Vehicle Ordinance 1930 ( Federal Law Gazette No. 138/1930) since 1930 .

In March 1984 the Constitutional Court overturned the driving license because, according to the court, a person may not be compelled to make a confession of a criminal offense under penal sanction. This can be derived from Art. 90 Para. 2 B-VG . However, the driver information was reintroduced with the 10th amendment to the KFG in 1986. This time, however, it was raised to constitutional rank to prevent it from being repealed by the Constitutional Court.

The reason for the reintroduction was that “without an effective alternative solution, an orderly and effective control of road traffic would no longer be possible because all offenses committed by a motor vehicle driver in which he was not personally stepped on could no longer be punished. In view of the fact that a perpetrator of traffic offenses has a fast means of transport at his disposal, the classic instruments for determining a perpetrator in flowing traffic (e.g. hit-and-run after a serious traffic accident) cannot suffice. ... The same applies to violations in stationary traffic (e.g. parking a vehicle in violation of the prohibition ...); an executive body which notices that a vehicle has been parked illegally cannot be encouraged to wait next to the vehicle for the driver to return; this would prevent him from exercising his other official duties. "

The on 8 April 2004 decided European Court of Human Rights in the case of woe against Austria (Appl 38544/97) with four votes to three that through the driver identification Article 6 § 1 of, the ECHR is not violated. This was justified by the fact that “the connection between a complainant's obligation under Section 103 (2) KFG to provide information about the driver of his vehicle and possible criminal proceedings for driving at excessive speed is a distant and hypothetical one. In the absence of a sufficiently specific connection with this criminal case, the use of coercive measures (i.e. the imposition of a fine) to obtain the information does not pose a problem in terms of the right to remain silent and the privilege of not having to accuse oneself ”. The ECHR ruled similarly in the case of Rieg against Austria on March 24, 2005 (Appl. 63207/00).

The Vorarlberg Independent Administrative Senate decided on June 10, 2005 that a driver survey was inadmissible after criminal proceedings had been opened against a certain person. However, since an anonymous ruling is not considered an act of persecution in accordance with Section 49a (6) of the Administrative Penal Act 1991, a driver survey can also be carried out after such a ruling has been delivered.

Article 5 (3) of the Council Framework Decision of February 24, 2005 on the application of the principle of mutual recognition of financial penalties allows for the refusal of enforcement only in cases that do not fall under Article 5 (1). However, this article prescribes the mandatory enforcement of “traffic fines and traffic offenses”. "The duty of the owner to name the driver of a vehicle only falls under the concept of road traffic rules if it is interpreted very broadly or is already overstretched."

Enforcement abroad

Foreign registered owners are also obliged under Austrian law to answer a driver survey.

It must be taken into account that legally binding administrative penalties in Austria are enforced for three years. Thus, if you enter Austria within the three years, the sentence can be executed in Austria. After that this is no longer possible.

Germany

There has been an enforcement agreement between Germany and Austria since 1988. In Article 9, this regulates, among other things, that Germany and Austria provide each other with administrative assistance in the enforcement of legally binding fines. This is particularly necessary because Germany does not have anonymous dispositions.

Thus, final convictions for refusing to provide driver information would also be enforceable. However, Article 4, Paragraph 1 of the Agreement states that administrative and legal assistance will not be provided "if it is inadmissible under the law of the requested state". In this passage, German authorities called in practice often due to testify right of an accused or the evidentiary law , is not performed so that the enforcement. The EU framework decision of 2005 should not change the current practice of the German authorities.

See also

Comparable regulations can also be found in Section 5 (8) and (9) of the Shipping Act and Section 169 (5) of the Aviation Act .

Individual evidence

  1. ↑ Section 103 (2) of the Motor Vehicle Act
  2. ↑ Section 134 (1) of the Motor Vehicle Act
  3. ↑ Decision of the Administrative Court of 15 December 2000 Zl. 99/02/0290
  4. ↑ a b Decision of the Administrative Court of 11 December 2002 Zl. 2000/03/0025
  5. ↑ Decision of the Administrative Court of March 28, 2003 Zl. 2002/02/0168
  6. ↑ Basic law from the RIS on the decision of the VwGH of December 3, 1980 Zl. 3306/80
  7. ↑ Basic law from the RIS on the decision of the VwGH of January 28, 1983 Zl. 83/02/0013
  8. ↑ Decision of the Administrative Court of April 25, 1990 Zl. 88/03/0236
  9. ↑ Federal Law Gazette No. 138/1930 of May 20, 1930
  10. ↑ Federal Law Gazette No. 237/1984
  11. ↑ Decision of the Constitutional Court of March 3, 1984 Zl. G7 / 80, G11 / 81, G71 / 81, G53 / 82, G94 / 82, G26 / 83, G54 / 83
  12. ↑ Federal Law Gazette No. 106/1986
  13. ↑ a b HUDOC database of the ECHR (English, enter 38544/97 or 63207/00 as "Application Number")
  14. ↑ Letter from the Austrian Federal Chancellery dated November 11, 2006 ( memento of the original dated October 24, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bka.gv.at
  15. ^ Decision of the UVS Vorarlberg of June 10, 2005, GZ 1-774 / 04
  16. ↑ Framework Decision 2005/214 / JHA of the Council of 24 February 2005 on the application of the principle of mutual recognition of financial penalties
  17. ^ Rainer Griesbaum and Rolf Hannich and Karl H. Schnarr: Criminal law and granting of justice . Bwv - Berliner Wissenschafts-Verlag, 2006, ISBN 978-3-8305-1141-0 , p. 425.
  18. ↑ Decision of the VwGH of September 18, 2000 Zl. 98/02 / 0292Z
  19. ↑ Basic law from the RIS on the decision of the VwGH of November 23, 2001 Zl. 98/02/0292
  20. ↑ Section 31 (3) of the Administrative Penal Act 1991
  21. ↑ a b Federal Law Gazette No. 526/1990
  22. ↑ Wolf-Dieter Beck and Wolfgang Berr: OWi things in road traffic law: With OWi proceedings abroad , 5th edition, Müller (CFJur.), 2006, ISBN 3-8114-3361-X , p. 460.