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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21585/93

Gerhard Resch

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 10

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 1951 and resident in Aigen.

He was represented before the Commission by Mr. P. Wagner, a lawyer practising

in Linz.

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 contraventions

of safety at work regulations.

B. The proceedings

5. The application was introduced on 28 December 1992 and registered on 25

March 1993.

6. On 7 September 1993 the Commission (First 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 application. It declared inadmissible the complaint that the presumption of

innocence was violated.

8. The Government submitted their observations on 1 February 1995. The

applicant replied on 27 March 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 observations.

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

contraventions of safety at work regulations. Five penal orders were issued by

the Rohrbach District Authority on 17 May 1991. The applicant was fined AS

5,000.00 in each case, with six days' detention in default in each case.

18. The applicant's appeal to the Upper Austrian Provincial Government was

rejected on 12 May 1992.

19. On 29 June 1992 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 1

February 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 Administrative Court, and that court had the same jurisdiction

as it 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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RESCH v. AUSTRIA

RESCH v. AUSTRIA

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