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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 18724/91

Werner Proksch

against

Austria

REPORT OF THE COMMISSION

(adopted on 9 April 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-19) 3

III. OPINION OF THE COMMISSION

(paras. 20-28) 4

A. Complaint declared admissible

(para. 20) 4

B. Point at issue

(para. 21) 4

C. As regards Article 6 of the Convention

(paras. 22-28) 4

CONCLUSION

(para. 28) 5

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 6

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 11

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Austrian citizen, born in 1945 and resident in

Innsbruck. He was represented before the Commission by Mr. W. L. Weh, a lawyer

practising in Bregenz.

3. The application is directed against Austria. The respondent Government

were represented by Mr. F. Cede, Agent of the Austrian Federal Government.

4. The case concerns administrative criminal proceedings for failure by the

applicant to erect a wall, as required by a planning consent. The applicant

invokes Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 1 August 1991 and registered on 26

August 1991.

6. On 1 July 1992 the Commission (Second Chamber) decided, pursuant to Rule

48 para. 2 (b) of its Rules of Procedure, to give notice of the application to

the respondent Government without inviting the parties, at that stage of the

proceedings, to submit written observations on the admissibility and merits of

the application.

7. On 18 October 1994 the Commission (First Chamber) resumed its examination

of the case and decided to request the Government whether, in the light of the

Article 31 Reports adopted on 19 May 1994 in similar cases, they wished to waive

the possibility of submitting observations on the admissibility and merits of

the applicant's complaint under Article 6. It declared the remainder of the

application inadmissible.

8. The Government submitted their observations on 26 January 1995. The

applicant replied on 22 May 1995.

9. On 17 January 1996 the Commission declared the remainder of the

application admissible.

10. The text of the Commission's decision on admissibility was sent to the

parties on 29 January 1996 and they were invited to submit such further

information or observations on the merits as they wished. No such observations

were submitted, save that on 4 February 1997 the Government informed the

Commission that they did not wish to make further obserations.

11. After declaring the case admissible, the Commission, acting in accordance

with Article 28 para. 1 (b) of the Convention, also placed itself at the

disposal of the parties with a view to securing a friendly settlement. In the

light of the parties' reaction, the Commission now finds that there is no basis

on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (First Chamber) in

pursuance of Article 31 of the Convention and after deliberations and votes, the

following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

13. The text of this Report was adopted on 9 April 1997 by the Commission and

is now transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach

by the State concerned of its obligations under the Convention.

15. The Commission's decisions on the admissibility of the application are

annexed hereto.

16. The full text of the parties' submissions, together with the documents

lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

17. The applicant was convicted in administrative criminal proceedings of

failure to erect a wall, as required by a planning consent. A penal order was

issued on 8 April 1988 by the Mayor of Innsbruck by which the applicant was

fined AS 40,000.00, with 40 days' detention in default.

18. The applicant's appeal to the Provincial Government of Tyrol was rejected

on 26 May 1988.

19. On 26 September 1988 the Constitutional Court rejected the applicant's

constitutional complaint, and on 6 December 1990 the Administrative Court

dismissed the applicant's administrative complaint.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

20. The Commission has declared admissible the applicant's complaint that his

conviction in administrative criminal proceedings was not accompanied by the

requisite procedural guarantees, in particular that the Administrative Court was

not a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

B. Point at issue

21. The only point at issue is whether there has been a violation of Article 6

para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 (Art. 6) of the Convention

22. Article 6 (Art. 6) of the Convention provides, so far as relevant, as

follows:

"1. In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ... by an independent and

impartial tribunal ... "

23. The applicant claims that he did not have the benefit of a "tribunal" in

the administrative criminal proceedings against him.

24. The Government, in their observations on admissibility and merits of 26

January 1995, considered that the case did not disclose a violation of the

Convention. On 4 February 1997, they informed the Commission that they did not

wish to submit further observations in the light of the judgments of the

European Court of Human Rights in the Schmautzer and others cases of 23 October

1995.

25. The Commission recalls that in a series of judgments (Eur. Court HR,

Schmautzer v. Austria, Umlauft v. Austria and Gradinger v. Austria judgments of

23 October 1995, Series A no. 328-A, 328-B and 328-C, and Pramstaller v.

Austria, Palaoro v. Austria and Pfarrmeier v. Austria, Series A no. 329-A, 329-B

and 329-C), the European Court of Human Rights found that the proceedings

determined a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-

1) of the Convention, that the Austrian reservation to Article 5 (Art. 5) did

not apply to the criminal administrative proceedings at issue, and that neither

the Constitutional Court (Verfassungsgerichtshof) nor the Administrative Court

(Verwaltungsgerichtshof) had the "full jurisdiction" required by Article 6 (Art.

6) in criminal cases.

26. In the present case, too, the administrative criminal proceedings were

considered by the Constitutional Court and the Administrative Court, and those

courts had the same jurisdiction as they had in the cases of Schmautzer and

others.

27. The Commission therefore finds that the applicant did not have access to a

"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

28. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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PROKSCH v. AUSTRIA

PROKSCH v. AUSTRIA

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