Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21213/93

by T.H.

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 27 August 1992 by

T.H against Austria and registered on 21 January 1993 under file

No. 21213/93;

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 1954. She lives in

Tribuswinkel and is represented before the Commission by Mr. E.

Proksch, a lawyer practising in Vienna. This is her second application

to the Commission. The first application, No. 19116/91, which also

related to the imposition of administrative fines for failure to ensure

compliance with the Working Hours Act 1969 (Arbeitszeitgesetz), was

declared inadmissible on 13 October 1993. The facts of the case as

submitted by the applicant's representative may be summarised as

follows.

On 4 January 1991, the Baden District Authority

(Bezirkshauptmannschaft) issued 6 penal orders (Straferkenntnisse)

against the applicant, fining her a total of AS 38,500 with a total of

42 days' detention in default, for permitting excessive driving times

contrary to the Working Hours Act. Two further penal orders were

issued on 7 January 1991, fining the applicant a total of AS 15,500

with 16 days' detention in default, and a ninth penal order was issued

on 8 January 1991, fining the applicant AS 2,500 with 72 hours'

detention in default The convictions were variously under Sections 12,

14 and 16 of the Working Hours Act. The applicant appealed to the

Lower Austrian Regional Government (Landesregierung).

On 18 March 1991 the Regional Government accepted the applicant's

appeal to the extent that it related to one of the penal orders issued

on 4 January, and reduced the fine by AS 1,000 and the period of

detention in default by 24 hours. It dismissed the remainder of the

appeal. The applicant made a constitutional complaint to the

Constitutional Court (Verfassungsgerichtshof) in which she alleged,

inter alia, violation of the principle of "equality".

The Constitutional Court declined to deal with the complaint on

11 June 1991. It found that the constitutional matters had no adequate

prospect of success, and that the case was not excluded from the

jurisdiction of the Administrative Court (Verwaltungsgerichtshof).

The Administrative Court dismissed the applicant's administrative

complaint on 20 July 1992. In connection with a complaint that the

applicant had not, herself, driven in contravention of the Working

Hours Act, the Administrative Court, referring to its case-law

(decision of 9.6.88, Zl. 88/08/0123), pointed out that Section 28 (1)

does not require "active behaviour" (tätiges Verhalten). It noted that

there was no dispute as to the times driven. The Court, recalling that

a person would only be exonerated under administrative criminal law

where he could show that permitted times had not been observed

notwithstanding an appropriate control system and without his knowledge

or consent, did not accept that the applicant had established an

adequate system. The Administrative Court declined to hold the hearing

which the applicant had requested.

Relevant domestic law

According to Section 1 (1) of the Working Hours Act, the Act

applies to employees over the age of 18. Section 1 (2) excludes a

series of types of employees from the ambit of the Act, including

employees who have a contract with local or other regional authorities

(Gebietskörperschaften), certain foundations, and other specified

categories.

Section 12 (1) of the Working Hours Act provides that an

uninterrupted rest period of 11 hours is to be granted after a day's

work. Section 14 (2) provides, so far as relevant, that the maximum

driving time between two rest periods must not exceed eight hours, and

the maximum driving time per week is 48 hours. Section 16 (2) provides

that the maximum time "on the road" (driving time and rest periods

together) is 12 hours.

Section 28 (1) of the Working Hours Act provides that employers

who contravene the provisions of the Act shall be fined between AS 300

and AS 6,000, or sentenced to three days' to six weeks' detention.

Section 28 (2) states that Section 28 (1) does not apply when the

employer is a local or other regional authority.

COMPLAINTS

The applicant alleges a violation of Article 6 para. 1 of the

Convention in that her case was not heard by an independent and

impartial tribunal.

She also alleges a violation of Article 1 of Protocol No. 1 to

the Convention, taken alone and, on the ground that the regulations on

working times do not apply to the public sector, in conjunction with

Article 14 of the Convention. She also alleges a violation of Article

6 para. 2 of the Convention in that she was required to prove her

innocence, rather than the State being required to prove her guilt.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 August 1992 and registered

on 21 January 1993.

On 11 May 1994 the Commission (First 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. In particular, she considers that she

was required to prove her innocence, rather than the State being

required to prove her guilt, and that the provisions of the Working

Hours Act in any event do not refer to employers, but merely to the

times which are to be worked. She points out that there is no question

in the case of her having personally contravened the provisions of the

Working Hours Act, and states that it is unreasonable then to assume

that she is guilty: she regards this as absolute liability.

The Commission recalls that it has already dealt with an

application from the applicant concerning contraventions of the Working

Hours Act, in Application No. 19116/91. In that case the Commission

found as follows:

"The Commission notes that the applicant, in her position as

employer, was fined under the Working Hours Act on the grounds

that one of the employees had exceeded the maximum of working

hours on several occasions. The authorities found that she had

failed to show that there had been an effective control in the

company as to compliance with the Working Hours Act.

The Commission recalls that Article 6 para. 2 (Art. 6-2) of the

Convention requires States to confine presumptions of fact or of

law within reasonable limits which take into account the

importance of what is at stake and maintain the rights of the

defence (cf., Eur. Court H.R., Salabiaku judgment of

7 October 1988, Series A no. 141, p. 16, para. 28).

The Commission considers that the applicant, as an employer, was

not held responsible for the offences under the Working Hours

Act, irrespective of personal guilt, but taking into account the

fact that there had been a lack of sufficient control, which made

the offences imputable to her on account of personal negligence.

The Commission considers that, in the circumstances of the

present case, there is no appearance that the application of the

Working Time Act having regard to Article 5 para. 1 (Art. 5-1)

of the Code of Administrative Offences conflicted with the

presumption of innocence, as guaranteed by Article 6 para. 2

(Art. 6-2) of the Convention".

The Commission adopts its reasoning in its previous case in the

present case.

To the extent that the applicant complains that she was held

personally liable for an offence which she did not commit, the

Commission considers that such a complaint would fall to be considered

under Article 7 (Art. 7) of the Convention, rather than under Article

6 para. 2 (Art. 6-2). Article 7 (Art. 7) of the Convention provides

as follows:

"1. 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 ..."

The Commission considers that where a person has been accused of

an offence, and the facts alleged do not correspond with the offence,

the effect of a conviction could be to find the person guilty of,

effectively, an "offence" which was not known to national law at the

time. However, in the present case, that the applicant was well aware

that the liability under Section 28 (1) was hers is apparent from the

wording of that provision and from the fact that she had already been

convicted under it. That no "active behaviour" is required of the

employer for his conviction of an offence under Sections 14 and 16 is

less apparent from the wording of that offence, but again the applicant

had previously been convicted of the same offences, and the

Administrative Court referred, in its decision in the present case, to

its case-law from 1988. Section 12 refers to a rest period being

"granted", and the only person in a position to "grant" such a rest

period is the employer. Moreover, the Working Hours Act in any event

provides only for employers' liability.

There is thus no indication in the present case that the

applicant was convicted, even in effect, of an offence which was not

known to domestic law at the time it was committed.

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 alleges violation of Article 1 of Protocol No. 1

(P1-1) to the Convention, taken alone and in connection with Article

14 (P1-1+Art. 14) of the Convention. These provisions provide 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 enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

In the light of its above findings as to the compatibility with

Articles 6 para. 2 and 7 (Art. 6-2, 7) of the Convention of Section 28

(1) of the Working Hours Act, the Commission finds that the fines

imposed on the applicant were the normal operation of the criminal

administrative law, and cannot be seen to be arbitrary within the

meaning of Article 1 of Protocol No. 1 (P1-1).

In connection with Article 14 (Art. 14) of the Convention, the

applicant considers it discriminatory for Section 28 (1) to apply to

private sector employers but not, because of the provisions of Section

28 (2), to public sector employers.

The Commission first notes in this respect that it is for the

legislator to decide in first instance to which categories of persons

legislation should apply, but that, to the extent that substantive

provisions of the Convention are at issue, that decision must not be

taken in a way which will give rise to discrimination contrary to

Article 14 (Art. 14) of the Convention.

The mere fact that the legislation at issue in the present case

is not applicable to the public sector does not mean that it is

discriminatory within the meaning of Article 14 (Art. 14). Even

assuming that there was a difference in treatment in the present case,

the Commission considers that the application of the legislation at

issue to the private sector alone is rather based on the fact the

social mischief which the legislation is designed to address is the

imposition of excessively long working hours on employees, and this

social mischief is more prevalent in the private sector, where

commercial considerations tend to predominate, than in the public

sector.

Accordingly, the Commission finds that any difference in

treatment between the applicant on the basis that she was involved in

the private sector rather than the public sector was not based on

grounds which are prohibited by Article 14 (Art. 14) of the Convention.

It follows that this part of the application is also manifestly

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

Convention.

3. The applicant also alleges violation of Article 6 para. 1

(Art. 6-1) of the Convention.

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 Report in cases

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

v. Austria, Comm. Rep. 19.5.94), and finds it appropriate now to resume

the proceedings.

For these reasons, the Commission

unanimously

DECIDES TO ADJOURN its examination of the complaints under

Article 6 para. 1 (Art. 6-1) of the Convention;

by a majority

DECLARES INADMISSIBLE the complaint relating to the presumption

of innocence, and

unanimously

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

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

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T.H. v. AUSTRIA

T.H. v. AUSTRIA

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