Are parking tickets kept in your file
Display of a parking meter tax evasion
The Federal Finance Court, through Judge R., in the administrative criminal case against applicant because of the administrative offense according to § 5 Abs. 2 Wiener Parkometerabgabeverordnung, OJ of the City of Vienna No. 51/2005, in the current version, in connection with § 4 Abs. 1 Vienna Parkometer Act 2006, LGBl. For Vienna No. 9/2006, as amended, on the complaint by the complaining party dated January 14, 2019 against the penal decision of the authority concerned, Magistrat der Stadt Wien, Magistratsabteilung 67, as administrative penal authority, dated January 8, 2019 , MA67 /.../ 2018, rightly recognized:
I. According to Section 50 of the Administrative Court Procedure Act (VwGVG), the complaint will be rejected as unfounded. The contested state knowledge is confirmed.
II. According to Section 52 (1) and (2) VwGVG, the complainant has to contribute to the costs of the complaint procedure in the amount of € 28.00 (i.e. 20% of the fine).
III. The Magistrate of the City of Vienna is designated as the enforcement authority in accordance with Section 25 (2) BFGG.
The contribution to the costs of the appeal proceedings in the amount of € 28.00, together with the fine of € 140.00 and the contribution to the costs of the first instance proceedings in the amount of € 14.00, a total of € 182.00, is due to the City of Vienna to be paid.
IV. An appeal by the complaining party due to a violation of rights according to Art. 133 Paragraph 6 Z 1 B-VG is not permitted by law in accordance with Section 25a Paragraph 4 VwGG.
According to Art. 133 Para. 4 B-VG, an ordinary appeal against this decision by the authority concerned is not permitted under Art. 133 Para. 6 Z 2 B-VG.
Reasons for decision
With the contested sentence, the complainant (applicant) was charged with the following violation:
"Parking the vehicle (registration number: W -.....), without marking it with a valid one for the time of the complaint (date / time: 06.09.2018, 14:35 / location: 1160 Vienna, Montleartstraße 44, opposite) Proof of parking (parking ticket, daily or weekly flat rate card), as the parking tickets with the numbers 666725DBR and 666723DBR in addition to the actual cancellations 06.09.2018, 2.30 p.m., traces of distant cancellations in the month: March, April, May, June and July, so the parking meter tax was evaded.
You have thereby violated the following legal provisions:
Administrative offense according to § 5 Abs. 2 Parkometer Abgabeverordnung, OJ of the City of Vienna No. 51/2005, in the current version, in connection with § 4 Abs. 1 Parkometergesetz 2006, LGBl. For Vienna No. 9/2006, in the valid version .
For this administrative offense, you will be subject to the following penalty:
Fine of € 140.00 if this is irrecoverable, substitute imprisonment of 1 day 9 hours.
Furthermore, you have to pay according to § 64 of the Administrative Penal Act 1991 - VStG:
€ 14.00 as a contribution to the costs of the criminal proceedings, that is 10% of the penalty.
The total amount to be paid (penalty / costs) is therefore € 154.00.
Payment term (...) "
The penalty decision was justified as follows:
"The subject of the proceedings was objected to by an organ of the Vienna State Police Department because it was parked at the location specified in the ruling and at the time specified there and the parking tickets with the numbers 666725DBR and 666723DBR next to the actual cancellations 06.09.2018, 2:30 p.m. Traces of distant cancellations in the month column: March, April, May, June and July.
You have been charged with the violation with a penal order.
You objected to this and essentially stated that the body had not personally convinced itself of the allegation, but only deduced this fact from a look at the parking tickets - located behind the windshield.
You were given the opportunity to present the original parking tickets stored in the vehicle at the time of the complaint.
On the occasion of your statement in this regard, you essentially stated that there is no obligation to store parking tickets and that you dispose of them immediately after they have been used. In addition, you would have only discovered the notification message later when cleaning the windshield. They continued to deny the allegation and attributed it to a misinterpretation of possible mechanical traces on the parking tickets. As income, you stated a monthly pension of EUR 1,731.73 as well as care obligations for your wife.
The following is determined for this purpose:
The basis for the present proceedings is the own official perception of the organ of the State Police Directorate Vienna and the information recorded in the notification.
There is no reason for the investigating authority to question the conclusive and consistent information provided by the reporting body of the Provincial Police Department Vienna, especially since such a body can be expected to perceive and correctly report relevant facts, in particular with regard to a motor vehicle in stationary traffic . There is no reason to doubt the objectivity of the reporting body of the State Police Directorate Vienna and there is no evidence that it wanted to untruthfully incriminate a person he did not know.
If you dispute the use of manipulated parking tickets, you could have made this credible to the authorities by presenting the parking tickets in question. A note regarding the storage of used parking tickets can be found both in the notification notification and on the back of the parking tickets.
In view of the fact that the report is to be regarded as suitable evidence and you have limited yourself during the administrative criminal proceedings in question to the mere denial of the violation you are accused of without giving a conclusive counter-statement or submitting exculpatory evidence to the authorities, it can be assumed as proven, that you have committed the offense mentioned. (see decision of the Administrative Court of 7 September 1990, 90/18/0079).
You are responsible for the fact that you did not discover the notification service until later when you were cleaning the windshield. In addition, there is no legal right to have such a person left on the vehicle by the reporting body.
When weighing up the information provided by the reporting body and your justification as the accused, who is completely free to choose his defense, the violation can be regarded as proven.
Every driver of a multi-lane motor vehicle who parks one in a short-term parking zone must pay the parking meter tax at the start of parking (Section 5 (2) of the Parking Meter Tax Ordinance).
You have not fulfilled this obligation.
You have evaded the parking meter tax.
Actions or omissions that evade or negligently shorten the charge are punishable as administrative offenses with fines of up to EUR 365.00 (Section 4 (1) Parkometer Act 2006).
The act on which the punishment is based damages the interest in the intended use of the short-term parking zone and rationing of the parking space to a not inconsiderable degree by the improper payment of taxes, which is why the objective injustice of the acts themselves, even in the absence of other adverse consequences, is not considered to be insignificant was to be evaluated.
With regard to the serious form of fault (tax evasion due to the use of a manipulated parking ticket), the penalty was to be determined according to the ruling.
When assessing the penalty, it was taken into account that administrative criminal law records are not on record and the economic circumstances that have been announced were to be assumed.
The imposition of the contribution to the costs of the proceedings is based on the mandatory provision of Section 64 (2) VStG. "
The applicant filed a complaint against the conviction in good time on January 14, 2019 with the following justification:
"In the penal decision it was recorded that the validations made by me were correct. The type of cancellation was not objected to; according to the instructions on the Internet ..." clear and durable ticking, best with a ballpoint pen) ".
Already in the objection I pointed out that pen entries are impossible without massive mechanical destruction (scraping, boiling, etc.) of the carrier material (the parcel note).
In the penalty decision it is stated that such deletions should be made at least 5 times in the monthly columns March, April, May, June, July (but not for the date etc.) on the certificate in question.
My reference to the technical impossibility of deleting the data in a non-destructive manner was ignored and not commented on with the remark in the penal decision “no reason to doubt the conclusive and consistent information ...”.
The technical conditions mentioned exclude deletion beyond any doubt.
The remark in the penal decision on the disposal of used tickets on the subject of storage: Since there is no obligation to store used parking tickets (there is only a preprinted recommendation), I have the disposal as my right and trusting in an objective and competent procedure used in the event of a complaint. If the organ had checked the parking tickets personally, a desired objective assessment would have been possible and the facts would have been recorded beyond doubt.
It is argued in the advertisement and slogan with traces on the basis of a subjective statement without describing it in a comprehensible and credible manner. It is, however, easy to misjudge the “traces” due to the remote diagnosis carried out. An example: The parking ticket contains symbols of the city of Vienna as "water pressure", e.g. coats of arms or similar, the light gray lines and shapes of which overlap with the stronger parking ticket imprints. It is probable that the indicating organ was not able to correctly recognize such superimpositions through the windshield and from a further distance.
The judgment is based on subjective assumptions and incorrect conclusions of the organ. And the technical impossibilities of the assumed manipulation are not taken into account at all. The asserted assumption "... the consistent information provided by the organ ..." definitely does not apply. It has been proven that the parking ticket is filled in according to the recommendation of the authority.
My statements in the objection were not taken into account when drawing up the criminal record.
The reason for the conviction lacks the objectively comprehensible basis, on the contrary, the technical circumstances mentioned prove the impossibility of the reported offense.
I am applying for the proceedings to be terminated. "
The complaint was considered:
On the basis of previous administrative events and the files submitted by the authority concerned, the following findings relevant to the decision are made:
In addition to the time of the crime, the scene of the crime and the vehicle data, the following description of the crime was recorded in the notification of the reporting body of the Provincial Police Department in Vienna:
"Parking the vehicle without having provided for its identification with a parking ticket valid for the time of the complaint (parking ticket, daily or weekly flat-rate card), because the parking ticket showed traces of distant devaluations. Accordingly, you evaded the parking meter tax.
The parking permit number (s) were recorded in the advertisement.
Note: 2x 060 918 1430
removed [harvest] devaluation [ies] March-July etc
white remaining crosses clearly recognizable [recognizable]
Delikt-Text: Parking ticket showed traces of distant cancellations
Parking ticket (s): 666725DBR; 666723DBR "
Evidence: 2 photos (1 photo of the parking ticket behind the windshield; 1 photo of the vehicle with license plate)
The applicant lodged an objection dated September 28, 2018 as follows against the subsequent order issued on September 24, 2018, with which the fine was imposed on account of the offense at issue in the proceedings:
"The complaint was filed because the organ believed it could recognize traces; he was not personally convinced of the viability of this opinion. He only assessed the parking ticket through the windshield."
With reference to the pending administrative criminal proceedings, the authority in question asked the applicant with discs of 14.12.2018 to submit the original parking tickets with the parking permit numbers 666725DBR and 666723DBR within two weeks of the delivery of the letter, pointed out that the authority would have to, if the applicant . did not comply with this request, assume that he would waive the submission of this evidence and gave the applicant the opportunity to disclose his income and financial situation and any duties of care.
The applicant replied to this letter with regard to the request for a parking ticket by email dated December 23, 2018 as follows:
"There is no obligation to keep used parking tickets. Therefore I dispose of them immediately after use and are therefore no longer available.
In the present case, that would have been helpful for me. I only became aware of a possible necessity when the organ communication was subsequently found (due to the fact that the communication was too tightly trapped in the very low-lying car windshield wiper, it was not visible from the driver's seat and was only found when the windscreen was cleaned later).
I received the parking ticket unlabeled and without any noticeable features. I will fill them out with a ballpoint pen. As far as I know, such a label cannot be deleted.
The organ claims to have recognized traces of manipulation, which indicate the removal of entries. Since I could not recognize such when filling out the empty parking ticket, it can be assumed that visibility problems, incorrect interpretation or possibly mechanical traces (e.g. kink / folding or similar) have led to a misjudgment by the indicator (a more detailed explanation of these "traces" was not given. The plausibility of the assumed offense can therefore not be objectively verified). "
As a result, the authority in question issued the initially reported penal decision.
Pursuant to Section 45 (2) AVG, the authority has to judge whether a fact can be assumed to be proven or not, carefully considering the results of the investigation procedure.
According to § 46 AVG, everything can be considered as evidence that is suitable for establishing the relevant facts and that is expedient according to the situation of the individual case.
In response to the questioning of the information recorded by the applicant in the complaint in the applicant's objection, the authority in question asked the applicant to present the original of the parking tickets, but the acquisition of this evidence failed because the applicant, according to his reply dated 23.12.2018 had disposed of the parking tickets - contrary to the recommendation on the back of the parking tickets and the notification to keep parking tickets for at least one year - and these were no longer available according to the applicant.
In the complaint, the applicant repeats his view that there is no obligation to keep used parking tickets, but only a preprinted recommendation.
In doing so, the applicant disregards the fact that this reference serves the purpose of safeguarding evidence in any subsequent administrative criminal proceedings.
Did the applicantif he or she decides not to keep the parking tickets, he will have to bear the consequence of no longer available evidence that might have supported his claim. Even if he should have noticed the announcement too late, the decision to immediately dispose of the parking tickets falls within his area of responsibility and thus a burden on him.
Thus, the authority in question remained as evidence for the alleged administrative violation, the own official perception of the organ of the State Police Directorate Vienna and the information recorded in the notification, as they are reproduced above according to the file content.
The authority has stated that there is no reason for them to question the conclusive and consistent information provided by the reporting body of the Provincial Police Department Vienna, especially since such a body is able to perceive and correctly report relevant facts, in particular with regard to a motor vehicle in stationary traffic, can be expected. There is no reason to doubt the objectivity of the reporting body of the State Police Directorate Vienna and there is no evidence that it wanted to untruthfully incriminate a person he did not know.
It should be noted that the information provided by the official reporter was made at a time of day when - as can also be seen on the two photos - there was daylight (see: Date / Time: 06.09.2018, 14:35) and therefore the statements made were entirely possible and thus appear credible. In addition, the reporter is subject to the duty of truth on the basis of the service oath he has taken, so that he can be held disciplinary and criminal responsibility in the event of a breach of this duty.
The submission of the applicant in the complaint with regard to the cancellation of parking tickets, a technical impossibility of a non-destructive manipulation of parking tickets and a "misjudgment of the traces by the remote diagnosis carried out" does not, however, leave the level of assertion, whereby the authority concerned also pointed out in the penal notice, that the applicant is completely free to choose his defense in his justification.
If one also looks at the applicant's submissions regarding misjudgment in detail, the following results:
The complaint alleges:
The parking ticket contains symbols of the city of Vienna as "water pressure", e.g. coats of arms or similar, the light gray lines and shapes of which overlap with the stronger parking ticket imprints. It is probable that the indicating organ was not able to correctly recognize such superimpositions through the windshield and from a further distance.
The reporter stated in the ad: Distant devaluations in the months from March to July, remaining white crosses clearly visible.
The light gray coats of arms (watermarks) mentioned by the applicant only partially overlap the monthly boxes February and March and the monthly boxes June and July in the area in question in the month column on the parking tickets; there is no such overlap in the April and May monthly boxes; the control body, however, found distant devaluations in the months of March to July, including April and May.
In addition, the finding of white residual crosses on these monthly boxes cannot be refuted by confusing them with light gray watermarks (on a few months).
The appraisal of the notification findings by the authority concerned is considered to be correct.
For the assessment of the penalty, reference is made to the relevant explanations in the penalty decision.
It was therefore to be decided according to the ruling.
Pursuant to Section 52 (1) VwGVG, every decision by the administrative court confirming a penal decision must state that the offender has to contribute to the costs of the criminal proceedings.
According to Section 52 (2) VwGVG, this amount for the complaint procedure is 20% of the fine, but at least ten euros.
The complaining party must therefore pay a further € 28.00 as a contribution to the administrative court proceedings in accordance with Section 52 (2) VwGVG.
According to Section 52 (6) VwGVG, Sections 14 and 54b (1) and (1a) VStG are to be applied accordingly. Pursuant to Section 54b (1) VStG as amended by Federal Law Gazette I 2013/33, legally enforceable fines or other monetary consequences of injustice must be paid within two weeks after they become final. If no payment is made within this period, a reminder can be sent with a reasonable period of no more than two weeks. After this period has expired, the injustice must be enforced. If it is reasonable to assume that the person punished is not ready to pay or that the wrongful consequence is irrecoverable, no reminder has to be issued and has to be enforced immediately or proceed according to paragraph 2.
According to Section 25 (2) BFGG, the Federal Finance Court has to determine in its decision which tax authority or financial criminal authority is to enforce the decision, unless this is regulated in the BAO, the ZollR-DG or the FinStrG.
The contribution to the costs of the complaint procedure, together with the fine and the contribution to the costs of the administrative procedure, as shown on page 1 above, is to be paid to the City of Vienna's Magistrate.
Information is provided that the payment can be made to the following bank account of the City of Vienna at UniCredit Bank Austria AG:
Recipient: MA 6 - BA 32 - penalties,
BIC: BKAUATWWXXX, IBAN: AT13 1200 0100 2281 3611
Purpose: The specified payment reference (186700254089).
On the admissibility of the revision
According to Art. 133 Para. 4 B-VG, an ordinary revision against this decision by the authority concerned according to Art. 133 Para. 6 Z 2 B-VG is not permitted, since the finding does not depend on the solution of a legal question, which is of fundamental importance is due, in particular because the knowledge does not deviate from the case law of the Administrative Court, there is no such case law or the legal question to be resolved is not answered uniformly in the previous case law of the Administrative Court.
An appeal to the Administrative Court by the complaining party for violation of rights under Art. 133 Para. 6 Z 1 B-VG is not permitted by law in accordance with § 25a Para. 4 VwGG if a fine of up to 750 euros and no (primary) imprisonment could be imposed and, in addition, a fine of no more than 400 euros was imposed.
These conditions are met in the present case. For the complainant, both the ordinary and the extraordinary revision are therefore legally excluded.
Vienna, May 14, 2019
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