Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21585/93

by Gerhard RESCH

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 28 December 1992

by Gerhard Resch against Austria and registered on 25 March 1993 under

file No. 21585/93;

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 1951. He is the

manager (Geschäftsführer) of a construction company which carries his

name. The applicant lives in Aigen im Mühlkreis, in Upper Austria.

He is represented by Mr P. Wagner, a lawyer practising in Linz. The

facts of the present case, as submitted by the applicant, may be

summarised as follows:

The particular circumstances of the case

On 17 May 1991 five penal notices (Straferkenntnisse) were served

on the applicant by the Rohrbach District Authority

(Bezirkshauptmannschaft), finding him guilty of contraventions of

Regulations 43 (1) and 44 (4) of the Construction Workers (Protection)

Order (Bauarbeiterschutzverordnung). He was fined 5,000 shillings in

each case, with six days' detention in default in each case. His

appeal, addressed to the Independent Administrative Senate for Upper

Austria (Unabhängiger Verwaltungssenat), was rejected by the Upper

Austrian Regional Government (Landesregierung) on 12 May 1992. The

applicant then made an administrative complaint to the Administrative

Court (Verwaltungsgerichtshof). The Administrative Court on

29 June 1992 dismissed the complaint. It noted that the applicant

accepted that the facts alleged (the individual contraventions of the

safety legislation) had taken place. As to the "subjective" element,

the applicant would only have been relieved, in accordance with Section

31 (5) of the Workers (Protection) Act, of (administrative) criminal

responsibility if he could have shown that, in delegating the oversight

of the building site to a third person, he had shown the necessary

care. That care included complying with the safety regulations, and

the applicant had not shown it. As to Article 6 of the Convention, the

Administrative Court considered that it was sufficient to refer to a

previous decision of 8 May 1987, in which it had found that the

Austrian reservation to Article 5 of the Convention prevented the

application of Article 6.

Relevant domestic law

Regulation 43 (1) of the Construction Workers (Protection) Order

provides that work on roofs may only be commenced when appropriate

safety measures have been put in place. Regulation 44 (4) of the Order

provides that workers on roofs with a slope of over 20° must attach

themselves securely to the roof with ropes.

Section 31 (5) of the Employees (Protection) Act provides that

employers and their representatives are criminally liable where a

contravention of regulations is committed with their knowledge or when

they have failed to exercise appropriate care in supervising work or

representatives.

COMPLAINTS

The applicant alleges a violation of his right to "fair

proceedings in accordance with Article 6 of the Convention". He also

alleges that he was required to establish his innocence, rather that

the authorities being required to prove him guilty, and that this was

in violation of Article 6 para. 2 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 December 1992 and registered

on 25 March 1993.

On 7 September 1993 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 a violation of Article 6 para. 2

(Art. 6-2) of the Convention on the ground that he was required to

establish his innocence because he had had to show that he had

displayed the necessary care in delegating supervision of the works.

Article 6 para. 2 (Art. 6-2) reads as follows.

"2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission notes that the applicant was charged with and

convicted of offences under Regulations 43 (1) and 44 (4) of the

Construction Workers (Protection) Order. Regulation 43 (1) provides

that particular types of work may only be commenced when appropriate

safety measures have been put in place. Regulation 44 (4) provides

that roof workers must be safely attached with ropes. The applicant's

administrative criminal liability flowed from Section 31 (5) of the

Employees (Protection) Act, which attaches criminal administrative

liability to employers who fail adequately to supervise, in this case,

construction works.

The Commission recalls that the facts alleged were not at issue

in the present case. Moreover, it remains in cases such as the present

for the prosecuting authorities to establish the elements of the

administrative offence. Thus in the present case, the prosecution had

to establish that the facts in connection with the specific incidents

were as alleged (in connection with the Regulations), and that the

applicant was the person responsible under Austrian law for the

company. Article 6 para. 2 (Art. 6-2) of the Convention does not

prohibit presumptions of fact and law in principle, but does require

States to remain within certain limits as regards criminal law which

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

rights of the defence (Eur. Court H.R., Salabiaku judgment of 7 October

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

The applicant accepts that the measures actually taken did not

comply with the relevant Regulations, and so it is not easy to see

which presumptions are alleged to have been applied. In any event, in

the context of regulations designed to protect workers, the Commission

finds that the application of those regulations to the employer rather

than to the employee does not amount to a presumption which exceeds the

limits set by the European Court of Human Rights in the case of

Salabiaku: what is at stake is the effective protection of workers, and

it remains open to the defence to show that adequate measures were in

fact taken, such that the rights of the defence are maintained.

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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RESCH v. AUSTRIA

RESCH v. AUSTRIA

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