Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18724/91

by Werner PROKSCH

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 1 August 1991 by

Werner Proksch against Austria and registered on 26 August 1991 under

file No. 18724/91;

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 citizen born in 1945. He is

represented before the Commission by Mr. W.L. Weh, a lawyer practising

in Bregenz. The facts of the case as submitted by the applicant may

be summarised as follows.

Particular circumstances of the case

The applicant is the representative of a company ("Hypo-Rent")

for the purposes of Austrian Administrative criminal law. On 19 August

1987 Hypo-Rent bought a parcel of land with planning permission for two

separate shops of under 400 square metres each. Hypo-Rent entered into

a leasing contract with a legally separate firm, F.M. Zumtobel. It

appears that the contract requires Zumtobel to construct in accordance

with planning conditions. On 17 September 1987 the applicant was

served notice that the building, which was proceeding, was not in

accordance with the conditions in the planning permission. On

20 November 1987 it was established that a partition wall between the

two shops had not been erected, with the result that a shopping centre

of over 1,000 square metres had been constructed. Such a shopping

centre would have needed special planning consent.

On 8 April 1988 the Mayor of Innsbruck issued a penal order

(Straferkenntnis) finding the applicant to have constructed a building,

namely a shopping centre, without the requisite special planning

consent. He was fined AS 40,000, with 40 days' detention in default.

The applicant appealed to the Provincial Government of Tyrol (Tiroler

Landesregierung) which, on 26 May 1988, rejected his appeal. The

applicant further appealed to the Administrative and Constitutional

courts. The Constitutional Court (Verfassungsgerichtshof) rejected his

complaint on 26 September 1988.

The Administrative Court (Verwaltungsgerichtshof) gave its

decision on 6 December 1990. It referred, first, to its own case-law

and that of the Constitutional Court that Article 5 para. 1 of the Code

of Administrative Offences 1950 is not incompatible with Article 6 of

the Convention. Accordingly, the Administrative Court declined to go

into the applicant's complaints under Article 6 para. 2 of the

Convention that the effect of Article 5 para. 1 of the Code of

Administrative Offences was to reverse the presumption of innocence.

The Administrative Court then proceeded to note that the failure

to construct the partition wall between the two independent shops had

the effect of producing a different building, which needed special

consent as a shopping centre. The fact that the actual construction

had been undertaken by a different firm under a contract with Hypo-Rent

did not affect the applicant's responsibility. It also found that the

contract with the firm of F.M. Zumtobel merely provided for Zumtobel

to fulfil planning conditions for the name and account of Hypo-Rent,

and it added that the applicant had been unable to show that it would

have been impossible for him to prevent the breach of the planning

consent. The administrative complaint was rejected.

Relevant Domestic Law

Code of Administrative Offences: Article 5 para. 1

(Original)

"Wenn eine Verwaltungsvorschrift über das Verschulden nicht

anderes bestimmt, genügt zur Strafbarkeit fahrlässiges Verhalten.

Fahrlässigkeit ist bei Zuwiderhandeln gegen ein Verbot oder bei

Nichtbefolgung eines Gebotes dann ohne weiteres anzunehmen, wenn

zum Tatbestand einer Verwaltungsübertretung der Eintritt eines

Schadens oder einer Gefahr nicht gehört und der Täter nicht

glaubhaft macht, maß ihn an der Verletzung der

Verwaltungsvorschrift kein Verschulden trifft."

(Translation)

"Unless a provision of administrative law states otherwise,

negligent behaviour is sufficient to establish guilt. Negligence

is to be assumed in the case of failure to observe a prohibition

or a prescription where damage or danger is not an element of the

administrative offence, and the defendant does not convincingly

show that no fault lies with him for the contravention of the

provision of administrative law".

COMPLAINTS

The applicant alleges violation of Article 6 of the Convention.

He alleges, first, that the Austrian system of review by the

Administrative and Constitutional courts of the decisions of

administrative authorities does not satisfy the requirements of Article

6, and that the Austrian reservation to Article 5 of the Convention

does not apply in this case. He also considers that the effect of

Article 5 para. 1 of the Code of Administrative Offences is to place

the burden of proof upon a defendant, and thus to infringe the

presumption of innocence contrary to Article 6 para. 2 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 August 1991 and registered

on 26 August 1991.

On 1 July 1992 the Commission (Second Chamber) decided to bring

the application to the notice of the respondent Government without

requesting observations.

THE LAW

1. The applicant alleges violation of Article 6 para. 2

(Art. 6-2) of the Convention by virtue of the operation of Article 5

para. 1 of the Code of Administrative Offences in this case.

Article 6 para. 2 (Art. 6-2) of the Convention provides as

follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

Article 5 para. 1 of the Code of Administrative Offences first

lays down a statement of substantive law that in the administrative

criminal offences to which it applies, negligent behaviour is

sufficient to establish guilt. It then continues with a presumption

that negligence is to be assumed where the offence is one of failure

to do or to fail to do an act where, provided the case is not one of

a specified category, a defendant cannot establish that no fault lies

with him.

The Commission recalls that the European Court of Human Rights

has given guidance as to the interpretation of this type of presumption

in the case of Salabiaku (Eur. Court H.R., Salabiaku judgment of

7 October 1988, Series A no. 141-A, pp. 14-18, paras. 26-30). The

Court recalled that the Convention does not prohibit presumptions of

fact or law in principle, but does require Contracting States to remain

within certain limits as regards criminal law (p. 15, para. 28) which

take into account the importance of what is at stake and maintain the

rights of the defence (p. 16, para. 28).

Notwithstanding the operation of Article 5 para. 1 of the Code

of Administrative Offences, it remains for the prosecuting authorities

to establish the elements of an administrative offence. Thus if the

offence is of failure to construct a wall in circumstances where an

individual is under a duty to erect a wall, the prosecution must

establish that the wall was not erected and that the individual was

under the duty. The presumption in Article 5 para. 1 then relates to

the mental element required for a conviction: it specifies that

negligence is sufficient to found a conviction, and that negligence is

assumed where, as here, a requirement to do something has not been

fulfilled and the defendant cannot show that he was not at fault.

The Commission finds that the second sentence of Article 5

para. 1 of the Code of Administrative Offences is no more than a

statutory repetition of the common sense proposition that where a

person does a prohibited action, or fails to do something which he is

under a duty to do, the conclusion can reasonably be drawn that he has

contravened the provision at issue, unless he can show that he was not

at fault.

The applicant in the present case tried to allege that he was not

at fault because the actual construction works had been undertaken by

a separate firm under a contract with Hypo-Rent. The Administrative

Court rejected this argument as the firm which did the construction

works in any event did them for the name and account of Hypo-Rent, and

the applicant had not been able to show that he had lost control of the

building.

In any event, as Hypo-Rent had the benefit of the planning

consent which contained the conditions, there is no reason why the

applicant - on behalf of Hypo-Rent - should not remain responsible for

breaches of a condition of that consent.

The Commission finds no indication in the present case that the

provisions of Article 5 para. 1 of the Code of Administrative Offences

operated contrary to the provisions of Article 6 para. 2 (Art. 6-2) of

the Convention.

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 alleges violation of Article 6 para. 1

(Art. 6-1) of the Convention, which guarantees, inter alia, a fair

hearing before an independent and impartial tribunal in the

determination of a criminal charge.

The Commission has already given notice of the application to the

respondent Government but has not requested the parties to submit their

observations. The Commission has now adopted its Reports in cases

similar to the present one (cf., for example, No. 15523/90, Schmautzer

v. Austria, Comm. Rep. 19.5.94, pending before the European Court of

Human Rights), and finds it appropriate now to resume the proceedings

in the present case in the light of those Reports.

For these reasons, the Commission

by a majority

DECLARES INADMISSIBLE the complaint that the presumption of

innocence was violated; and

unanimously

DECIDES TO ADJOURN its examination of the remainder of the

application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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