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 24 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 report provided for in Rule 47 of the Rules

of Procedure of the Commission;

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, as submitted by the applicant, 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. The present

application relates to two sets of subsequent proceedings.

a. The proceedings relating to the costs of the removal

On 19 June 1989 the Bregenz District Administrative Authority

ordered that the removal of the material be carried out by a building

enterprise, as the applicant had failed to comply with the order of

9 December 1986. Referring to the relevant provision of the

Administrative Enforcement Act (Verwaltungsvollstreckungsgesetz), it

also ordered the applicant to pay AS 240,000 as an advance on costs.

The applicant's appeals against this decision remained unsuccessful.

On 7 May 1990 the Vorarlberg Provincial Government, referring to

an expert opinion of 26 March 1990 by a geologist, ex officio modified

its decision of 28 July 1987. It noted that according to the expert

opinion the material around a telegraph pole situated on the plot of

land at issue contributed to its stability and prohibited it from

bending and that a removal of the material deposited along the road

might cause the road to slide. Consequently, it ordered the applicant

to remove the excavation material, except within a radius of ten meters

around the telegraph pole and within five meters of the adjacent road.

On 23 August 1990 the building enterprise started to remove the

material from the plot of land at issue and deposited it on a dumping

ground.

On 21 December 1990 the Bregenz District Administrative

Authority, again referring to the Administrative Enforcement Act,

ordered the applicant to pay the costs of the removal of about

AS 580,000 minus AS 240,000 which he had already paid in advance. The

authority noted that he had not complied with the order to remove the

material and was therefore liable to pay the costs of the building

enterprise which had carried out the removal in his place.

On 12 March 1991 the Vorarlberg Provincial Government dismissed

the applicant's appeal.

On 12 August 1991 the Constitutional Court (Verfassungsgerichts-

hof) rejected the applicant's complaint and referred it to the

Administrative Court.

On 26 April 1993 the Administrative Court dismissed the

applicant's complaint. The Court noted the applicant's submissions as

regards the amount of costs he had been ordered to pay, namely that the

authority had accepted AS 580,000 as final costs although it had,

allegedly without having ordered a binding estimate of cost, only

requested him to pay an advance of AS 240,000. It further noted that

the applicant claimed to have offered that the material at issue be

deposited on various plots of land belonging to him, thereby avoiding

the deposit on a dumping ground and diminishing the costs.

The Court, referring to its case-law, recalled that a party was

not obliged to pay the costs of a measure like the one at issue, if

they did not result from the lawful execution of a decision or if they

were excessive. However, in the present case, the costs resulted from

the lawful execution of the Bregenz District Administrative Authority's

decision ordering that the removal be carried out by a building

enterprise. Further, the applicant's allegation that the authority had

not duly ordered a cost estimate and had accepted excessive costs

appeared unfounded. Already the decision of 19 June 1989, which had

ordered him to pay AS 240,000 as an advance on costs, had stated that

this amount would only cover approximately half of the costs. Moreover,

according to the file the applicant had been requested several times

to indicate other plots of land on which the material at issue could

be deposited, but had failed to do so.

This decision was served on the applicant on 5 July 1993.

b. The administrative criminal proceedings

On 7 March 1990 the Dornbirn District Administrative Authority,

in administrative criminal proceedings, ordered the applicant to pay

a fine of AS 20,000, with provision for twenty days' imprisonment in

default. The authority referred to S. 34 para. 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, upon 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 the 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,

with provision for fifteen days' imprisonment in default. The

authority, referring to S. 34 para. 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 meters around the telegraph pole and within five meters of the

adjacent road.

On 30 November 1993 the Constitutional Court rejected the

applicant's complaint for lack of sufficient prospects of success.

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

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. It also declined to

hold the oral hearing he had requested.

COMPLAINTS

1. The applicant complains about the decisions ordering him to pay

the costs of the removal of material he had deposited on a plot of land

leased. He submits that the authorities arbitrarily prevented him from

carrying out the removal himself at a lower cost and in essence wanted

to penalise him. In particular he claims that he had requested the

authorities to serve a decision on the owner of the land, in order to

oblige him to tolerate the removal of the material and that he had

offered several times to remove the material to one of his own plots

of land. He invokes Articles 6 and 7 of the Convention and Article 1

of Protocol No. 1.

2. The applicant complains under Article 7 about the decisions

ordering him to pay a fine for non-compliance with the removal order.

He submits in particular that an omission is not punishable, if the

conduct would have been contrary to other provisions of the legal

order. He argues that it is prohibited by the general rules of civil

law to remove material from foreign ground. According to him the

authorities should have served the removal order on the land owner in

order to oblige him to tolerate the removal of the material at issue.

3. The applicant also 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.

THE LAW

As to the proceedings relating to the costs of the removal

1. The applicant complains about the decisions ordering him to pay

the costs of the removal of material he had deposited on a plot of land

leased. He submits that the authorities arbitrarily prevented him from

carrying out the removal himself at a lower cost and in essence wanted

to penalise him. He invokes Articles 6 (Art. 6) and 7 (Art. 7) of the

Convention and Article 1 of Protocol No. 1 (P1-1).

The Commission has first examined the above complaints under

Article 1 of Protocol No. 1 (P1-1) which reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission finds that the applicant's obligation under the

Vorarlberg Landscape Protection Act, to pay the costs of the removal

of material from a plot of land, does not concern a deprivation of

possessions within the meaning of paragraph 1 of Article 1 (Art. 1-1),

but has to be considered as a control of the use of the applicant's

property, falling within the scope of the second paragraph of this

Article (Art. 1-2).

The Commission recalls that this paragraph requires that the

interference is lawful and serves a legitimate aim. Moreover the

interference must be proportional, achieving a fair balance between the

demands of the general interest of the community and the requirements

of the protection of the individual's fundamental rights. There must

be a reasonable relationship between the means employed and the aim

pursued. In determining whether this requirement is met, the State

enjoys a wide margin of appreciation with regard both to choosing the

means of enforcement and to ascertaining whether the consequences of

enforcement are justified in the general interest for the purpose of

achieving the object of the law in question (see Eur. Court H.R.,

Fredin judgment of 18 February 1991, Series A no. 192, pp. 16-17,

paras. 48-51).

As regards the lawfulness of the interference, the Commission

notes that the impugned administrative decisions were based on the

Administrative Enforcement Act in conjunction with the Vorarlberg

Landscape Protection Act. There is no indication that the applicant's

obligation to pay the costs was not in accordance with domestic law.

The Commission further considers that the interference at issue

pursued a legitimate aim in the general interest, namely the

enforcement of landscape protection.

As regards the necessity of the interference, the Commission

notes that the applicant was first ordered to carry out the removal of

the material himself, but failed to comply with this order. Further,

he had the possibility to lodge appeals against the Bregenz District

Administrative Authority's decision of 19 June 1989, ordering him to

pay an advance on costs. However, his appeals remained unsuccessful.

Finally, the District Administrative Authority ordered him to pay

the remaining costs. The Administrative Court, in its decision of

26 April 1993, rejected the applicant's allegations that the said

Authority had not duly ordered a cost estimate and had accepted

excessive costs. It also noted that the applicant had been requested

several times to indicate other plots of land on which the material

could be deposited, but had failed to do so. Considering all

circumstances, the Commission finds no indication of

disproportionality.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also invokes Article 6 (Art. 6) of the Convention.

However, even assuming that this Article (Art. 6) applies to the

proceedings at issue, the Commission, having regard to its above

findings, considers that the applicant failed to show that he could not

duly present his arguments or that the proceedings were otherwise

unfair.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant further invokes Article 7 (Art. 7) of the

Convention.

Article 7 para. 1 (Art. 7-1) provides as follows:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national or international law at the time when it

was committed. Nor shall a heavier penalty be imposed than the

one that was applicable at the time the criminal offence was

committed."

This Article (Art. 7-1) relating to the imposition of penalties

for criminal offences does not apply to proceedings concerning the

costs of an enforcement measure.

It follows that this part of the application is incompatible

ratione materiae within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

As to the administrative criminal proceedings

4. The applicant also complains under Article 7 (Art. 7) about the

decisions ordering him to pay a fine for non-compliance with the

removal order. He argues that it is prohibited by the general rules

of civil law to remove material from foreign ground. According to him

the authorities should have served the removal order on the land owner

in order to oblige him to tolerate the removal of the material at

issue.

The Commission is not called upon to decide whether this

provision applies to the imposition of a fine in administrative

criminal proceedings under Austrian law, as the complaint is in any

case inadmissible for the following reasons.

The Commission firstly notes that the Dornbirn District

Administrative Authority when ordering the applicant to pay a fine

referred to S. 34 para. 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 offence was therefore

clearly punishable under Austrian law. Furthermore, the Administrative

Court, in its judgment of 30 May 1994, dismissed the applicant's

argument that he was prohibited from removing the material from foreign

ground. It found that the land owner, under the Vorarlberg Landscape

Protection Act, is obliged to tolerate the removal of material, also

if he has not himself deposited it on his plot of land. In these

circumstances, the Commission finds that there was no element of

unreasonable uncertainty of the law (No. 8141/78, Dec. 4.12.78,

D.R. 16, p. 142).

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. The applicant also 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 Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the Government.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the applicant's complaint that, in the

criminal administrative proceedings against him, he did not have

a fair and oral hearing before a tribunal.

DECLARES INADMISSIBLE 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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