Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23394/94

by Siegfried GMEINER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1996, the following members being present:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 January 1994 by

Siegfried GMEINER against Austria and registered on 4 February 1994

under file No. 23394/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's partial decision of 24 October 1995;

- the respondent Government's letter of 26 March 1996 by which they

waiwed objections on the admissibility of the application;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian national, residing in Dornbirn. In

the proceedings before the Commission he is represented by Mr. W. Weh,

a lawyer practising in Bregenz.

The facts of the case may be summarised as follows.

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

deposited excavated material.

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.

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.

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.

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.

On 30 November 1993 the Constitutional Court rejected the

applicant's constitutional complaint for lack of sufficient prospects

of success.

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.

COMPLAINTS

The applicant complains that the administrative criminal

proceedings against him were in breach of Article 6 of the Convention,

as he did not have a fair hearing before a tribunal within the meaning

of this provision. In particular, he submits that the administrative

authorities lack the quality of tribunals and that the control

exercised by the Administrative Court is insufficient. He also

complains that he did not have an oral hearing before the

Administrative Court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 January 1994 and registered

on 4 February 1994.

On 24 October 1995 the Commission declared the application partly

inadmissible, and decided to communicate the remainder of the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure.

On 26 March 1996 the Government waived objections on

admissibility in the case.

THE LAW

The applicant complains that the administrative criminal

proceedings against him were in breach of Article 6 (Art. 6) of the

Convention, as he did not have a fair hearing before a tribunal within

the meaning of this provision. In particular, he submits that the

administrative authorities lack the quality of tribunals and that the

control exercised by the Administrative Court is insufficient. He also

complains that he did not have an oral hearing before the

Administrative Court.

The Government have waived objections on admissibility.

The Commission has had regard to the facts of the present case,

to the Government's waiver of objections on admissibility, and to the

case-law of the European Court of Human Rights. It finds that the case

raises questions under the Convention which cannot be rejected as

manifestly ill-founded, and which require to be determined on the

merits. No other ground of admissibility has been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the remainder

of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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GMEINER v. AUSTRIA

GMEINER v. AUSTRIA

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