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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 24883/94

Günther Salzmann

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. 16-21) 3

III. OPINION OF THE COMMISSION

(paras. 22-42) 4

A. Complaints declared admissible

(para. 22) 4

B. Points at issue

(para. 23) 4

C. As regards Article 6 of the Convention:

access to a tribunal

(paras. 24-30) 4

CONCLUSION

(para. 30) 5

D. As regards Article 6 of the Convention:

the length of the proceedings

(paras. 31-40) 5

CONCLUSION

(para. 40) 6

E. Recapitulation

(paras. 41-42) 6

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 7

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 1959 and resident in Fußach.

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 unlawful cutting

of trees and bushes in a protected landscape area.

B. The proceedings

5. The application was introduced on 21 July 1994 and registered on 10 August

1994.6. On 28 June 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 its admissibility and merits.

7. The Government submitted their observations on 6 November 1995 after an

extension of the time-limit fixed for this purpose. The applicant replied on 22

January 1996.

8. On 17 January 1996 the Commission declared 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, save that on 4 February 1997 the Government informed the

Commission that they did not wish to make observations on the merits of the

case, so far as it related to the question of access to a tribunal.

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 decision on the admissibility of the application is

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 was informed on 7 June 1988 that administrative criminal

proceedings would be brought against him for unlawful cutting of trees and

bushes in a protected landscape area. A penal order was issued on 16 February

1989 by the Bregenz District Authority. The applicant was fined a total of AS

49,500.00, with 35 days' detention in default.

17. The applicant's appeal to the Vorarlberg Provincial Government was

rejected on 12 May 1989, although the fine was reduced.

18. On 2 October 1989 the Constitutional Court rejected the applicant's

constitutional complaint, and remitted the case to the Administrative Court.

19. On 7 February 1990, the Administrative Court ordered the applicant to

remedy certain defects in his complaint, which the applicant did on 5 April

1990, within the time-limit which had been set.

20. On 11 April 1990 the Administrative Court ordered the Provincial

Government to enter a reply, which it did on 18 June 1990. The reply was

received by the applicant's representative on 29 June 1990.

21. On 28 December 1993 the Administrative Court dismissed the bulk of the

applicant's administrative complaint, and quashed the decision of 12 May 1989 to

a limited extent. The applicant's representative received the decision of 28

December 1993 on 7 February 1994.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

22. 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 his case was not heard within a reasonable time.

B. Points at issue

23. The points at issue are whether there has been a violation of Article 6

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

- as regards access to a tribunal;

- as regards the length of the proceedings.

C. As regards Article 6 (Art. 6) of the Convention: access to a tribunal

24. 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 within a reasonable time by an

independent and impartial tribunal ..."

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

the administrative criminal proceedings against him.

26. The Government made no comment on this aspect of the case in their

observations of 6 November 1995. 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.

27. 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.

28. 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.

29. 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

30. 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 as regards

access to a tribunal.

D. As regards Article 6 (Art. 6) of the Convention: the length of the

proceedings

31. The applicant also claims that the proceedings lasted unreasonably long.

32. The Government point out that the administrative authorities dealt with

the case particularly expeditiously, and underline that the proceedings before

the Administrative Court lasted as long as they did because supreme courts are

required to obtain all the documents in the case, and also to subject the case

to a comprehensive and thorough scrutiny. They also point to the fact that the

applicant was partially successful before the Administrative Court.

33. The Commission agrees with the Government that the case was dealt with

expeditiously by the administrative authorities, and would add that the

Constitutional Court, too, had considered and disposed of the case within 16

months of the original notice of proceedings, and within eight months from the

penal order.

34. There remains, however, the period of over three years from 2 October

1989, when the Constitutional Court rejected the applicant's constitutional

complaint (the applicant received the decision on 30 January 1990) and 28

December 1993, when the Administrative Court dismissed the bulk of applicant's

administrative complaint (the applicant received the judgment on 7 February

1994).

35. During the period when the case was pending before the Administrative

Court, the Administrative Court ordered the Provincial Government to enter a

reply to the applicant's complaint on 11 April 1990 (it also refused to give

suspensive effect to the penalty on that date), and the Provincial Government

did so on 18 June 1990.

36. It does not appear, and the Government do not submit, that any procedural

steps at all were then taken until 28 December 1993, when the Administrative

Court dismissed the bulk of the administrative complaint.

37. The Commission does not accept that the importance of the functions of the

Administrative Court can justify total inactivity on the part of that body for a

period of three and a half years.

38. The Commission reaffirms that it is for Contracting State to organise

their legal systems in such a way that their courts can guarantee the right of

everyone to obtain a decision on criminal charges within a reasonable time.

39. In the light of the criteria established by the case-law and having regard

to all the information in its possession, the Commission finds that the length

of the proceedings complained of exceeded the "reasonable time" requirement of

Article para. 1 of the Convention.

CONCLUSION

40. 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 as regards

the length of the proceedings.

E. Recapitulation

41. 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 as regards

access to a tribunal (para. 30).

42. 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 as regards

the length of the proceedings (para. 40).

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SALZMANN v. AUSTRIA

SALZMANN v. AUSTRIA

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