Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 23394/94

Siegfried Gmeiner

against

Austria

REPORT OF THE COMMISSION

(adopted on 9 April 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-22) 3

III. OPINION OF THE COMMISSION

(paras. 23-31) 5

A. Complaint declared admissible

(para. 23) 5

B. Point at issue

(para. 24) 5

C. As regards Article 6 of the Convention

(paras. 25-31) 5

CONCLUSION

(para. 31) 6

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 7

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 14

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 residing in Dornbirn. 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 refusal by the

applicant to remove excavated material from a plot of land of which he is the

leaseholder.

B. The proceedings

5. The application was introduced on 5 January 1994 and registered on 4

February 1994.

6. On 24 October 1995 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 and to invite the parties to submit written

observations on the admissibility and merits of the applicant's complaint under

Article 6. It declared the remainder of the application inadmissible.

7. By a letter of 26 March 1996 the Government stated that they waived

objections on the application if the Commission decided to declare it

admissible.

8. On 16 April 1996 the Commission declared the remainder of the application

admissible.

9. 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.

10. 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

11. 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

12. 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.

13. 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.

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

annexed hereto.

15. 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

16. The applicant is the leaseholder of a plot of land, on which he deposited

excavated material.

17. On 9 December 1986 the Bregenz District Administrative Authority

(Bezirkshauptmannschaft), referring to the relevant provisions of the Vorarlberg

Landscape Protection Act (Landschaftsschutzgesetz), ordered the applicant to

remove the excavated material from the plot of land. The decision was confirmed

by the Vorarlberg Provincial Government (Landesregierung) on 28 July 1987 and,

finally, by the Administrative Court (Verwaltungsgerichtshof) on 24 October

1988.

18. On 7 March 1990 the Dornbirn District Administrative Authority, in

administrative criminal proceedings, ordered the applicant to pay a fine of AS

20,000.00 with 20 days' imprisonment in default. The authority referred to

Section 34 (1) (f) of the Vorarlberg Landscape Protection Act and found that the

applicant had not complied with the obligation to remove the excavated material

from the plot of land at issue, as ordered in the decision of 9 December 1986.

The applicant's appeal to the Vorarlberg Provincial Government was dismissed on

13 September 1990.

19. On 26 April 1993 the Administrative Court, on the applicant's complaint,

quashed the decision of 13 September 1990. The Court found that the failure to

comply with an order was not punishable if compliance would be in breach of

other provisions of the legal order. In the present case, the applicant had been

fined for not having completely removed all excavation material on the plot of

land leased by him. However, it followed from an expert opinion of 26 March 1990

that the complete removal of the excavation material might have caused the

telegraph pole to bend or the adjacent road to slide. Thus, it would have

interfered with the rights of others.

20. On 15 September 1993 the Vorarlberg Provincial Government, in renewed

proceedings, ordered the applicant to pay a fine of AS 15,000.00 with 15 days'

imprisonment in default. The authority, referring to Section 34 (1) (f) of the

Vorarlberg Landscape Protection Act, found that the applicant had not complied

with the obligation to remove the excavated material from those parts of the

plot of land at issue where such a removal was possible without interfering with

the rights of others, i.e. except within a radius of ten metres around the

telegraph pole and within five metres of the adjacent road.

21. On 30 November 1993 the Constitutional Court rejected the applicant's

constitutional complaint for lack of sufficient prospects of success.

22. On 30 May 1994 the Administrative Court dismissed the applicant's

administrative complaint. The Court noted in particular the applicant's

submission that, until 7 May 1990, when the order was limited to the removal of

the excavation material on certain parts of the land, he could not comply with

it without interfering with the rights of others. However, the applicant had

failed to show why he had been unable to remove the material from those parts of

the land, where there would not have been any interference with the rights of

others. The Court also noted the applicant's submission that he had not been

able to comply with the order as the owner of the plot of land had not been

ordered to tolerate the removal. The Court, referring to the Vorarlberg

Landscape Protection Act, found that this argument was not valid, as the land

owner, even if he had not himself deposited the material, was obliged to

tolerate measures connected with its removal.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

23. 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 and that he did not have an oral hearing before the Administrative

Court.

B. Point at issue

24. 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

25. 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 ... "

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

the administrative criminal proceedings against him.

27. The Government do not wish to make observations on the case.

28. 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.

29. 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.

30. 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

31. 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

Menu

GMEINER v. AUSTRIA

GMEINER v. AUSTRIA

LEXI