Lexploria

AS TO THE ADMISSIBILITY OF

Application Nos. 21089/92, 21443/93 & 22476/93

by Gerhard MOSER and Ulrich BOSCH

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

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 above-mentioned applications, introduced by

Gerhard Moser and Ulrich Bosch against Austria, on 9 October 1992,

5 February 1993 and 11 August 1993 respectively, and registered

respectively on 16 December 1992, 26 February 1993 and 19 August 1993.

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is an Austrian citizen and the second

applicant is a German citizen. They both live in Graz, and are

represented before the Commission by Ms. E. Berchtold-Ostermann, a

lawyer practising in Vienna. The facts of the case as submitted by the

applicants' representative may be summarised as follows.

The facts relating to Application No. 21089/92

In 1988 and 1989 the Leoben Works Inspectorate

(Arbeitsinspektorat) issued administrative criminal proceedings against

the applicants in connection with allegations that workers at hospitals

of which the applicants are managers had exceeded the permissible

maximum working hours. The proceedings were stopped by the Graz City

Council (Magistrat) on 6 December 1989 on the ground that the Working

Hours Act 1969 did not apply in this case. The Works Inspectorate

appealed to the Steiermark Provincial Governor (Landeshauptmann).

On 17 December 1989 the Steiermark Provincial Governor issued 16

decisions on the appeals. The Working Hours Act was found to be

applicable to the case because the Steiermärkische Krankenanstalten

Gesm.b.H., the company which ran the hospitals, was constituted under

private law and was not one of the public-law organs excluded from the

operation of the Act. The applicants were the individuals responsible

for the company. The applicants were found to be in contravention of

the Act, and were fined a total of AS 417,850 (the first applicant) and

AS 425,800 (the second applicant) with 5411/2 and 5611/2 days' detention

in default respectively. The individual fines ranged from AS 10,900

to AS 58,700 (in the case of the first applicant) and to AS 63,100 (in

the case of the second applicant). The applicants appealed to the

Constitutional Court (Verfassungsgerichtshof).

The Constitutional Court dismissed the constitutional complaint

on 27 February 1992 and transferred the case to the Administrative

Court (Verwaltungsgerichtshof). It considered that the Provincial

Governor's view, that the company which ran the hospitals was not one

of the public-law organs excluded from the operation of the Working

Hours Act, was a view which was tenable. In connection with the

applicants' claim that the matter should have been dealt with by a

court rather than the administrative authorities, the Constitutional

Court referred to the Austrian reservation to Article 5 of the

Convention which, according to its own case-law, affected the

interpretation of Article 6 of the Convention. It therefore found that

the principle of ordinary criminal law that sentences should not be

cumulated (although the principle did not apply in administrative law)

was not relevant. The Constitutional Court declined to hold a hearing

in the case.

The Administrative Court dismissed the bulk of the administrative

complaints on 30 September 1993 and 11 November 1993 and found in the

applicants' favour to a limited extent in that it held that the

Provincial Governor had wrongly applied two provisions of the Working

Hours Act to the applicants when only one applied. The fine the

applicants were required to pay was, as a result, reduced by some 10%.

The Administrative Court also declined to hold the hearing which the

applicants had requested.

The facts relating to Application No. 21443/93

In 1988 and 1989 the Leoben Works Inspectorate issued

administrative criminal proceedings against the applicants in

connection with allegations that workers at hospitals of which the

applicants are managers had exceeded the permissible maximum working

hours. On 22 and 25 March 1991, 31 January and 6 February and

24 March 1992 the Graz City Council issued a series of penal orders by

which the applicants were fined a total of AS 131,200 each, with 164

days' detention in default. They appealed to the Steiermark Provincial

Governor.

By a series of 5 decisions dated 18 February (two), 10 August,

17 August and 20 October 1992, the Steiermark Provincial Governor

dismissed the appeals and confirmed the penal orders. The applicants

appealed to the Constitutional Court.

The Constitutional Court declined to deal with the constitutional

complaints on 15 June 1992 and transferred the case to the

Administrative Court.

The Administrative Court dismissed the bulk of the administrative

complaints on 25 November 1993 and found in the applicants' favour to

a limited extent in that it found that the Provincial Governor had

wrongly applied two provisions of the Working Hours Act to the

applicants when only one applied. The fine the applicants were

required to pay was, as a result, reduced by a small amount. The

Administrative Court also declined to hold the hearing which the

applicants had requested.

The facts relating to Application No. 22476/93

In 1988 and 1989 the Leoben Works Inspectorate issued

administrative criminal proceedings against the applicants in

connection with allegations that workers at hospitals of which the

applicants are managers had exceeded the permissible maximum working

hours. On 25 and 26 May 1992 the Graz City Council issued a series of

penal orders by which the applicants were fined a total of AS 115,100

each, with 338 days' detention in default. They appealed to the

Steiermark Provincial Governor.

By a series of three decisions dated 16 February, 8 March and

14 April 1993, the Steiermark Provincial Governor largely dismissed the

appeals and confirmed the penal orders. The decision of 8 March 1993

related to some 150 incidents of excessive hours being worked. The

applicants decided not to appeal to the Constitutional Court as on

15 June 1992 it had already declined to deal with their constitutional

complaints in an earlier series of cases. They appealed to the

Administrative Court.

The Administrative Court dismissed the administrative complaints

on 25 November 1993 and 19 January 1994. It also declined to hold the

hearing which the applicants had requested.

COMPLAINTS

The applicants complain that the administrative authorities which

determined the criminal proceedings against them were not the

"independent and impartial tribunal" required by Article 6 para. 1 of

the Convention. They consider that the Working Hours Act should not

have applied in their case; that the administrative authorities should

have applied the principle of ordinary criminal law that a person

should not be convicted if the harm caused by a conviction is greater

that the harm sought to be prevented, and that the various fines should

not have been cumulated. In connection with the Austrian reservation

to Article 5 of the Convention, the applicants submit that, even if the

reservation has an effect on the application of Article 6 of the

Convention, it cannot affect legislation which entered into force after

the reservation was made. They point out that although the (German)

Working Hours Regulations of 1939 were still in force in 1958, when the

reservation was made, they only provided for a single maximum penalty

of 150 Reichsmark, whereas the penalties in the applicants' case were

cumulated.

The applicants consider that the fines were so exorbitant that

there has also been a violation of Article 1 of Protocol No. 1 to the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

Application No. 21089/92 was introduced on 9 October 1992 and

registered on 16 December 1992.

Application No. 21443/93 was introduced on 5 February 1993 and

registered on 26 February 1993.

Application No. 22476/93 was introduced on 11 August 1993 and

registered on 19 August 1993.

On 11 May 1994 the Commission (First Chamber) decided to join the

applications and to bring them to the notice of the respondent

Government without requesting observations.

THE LAW

1. The applicants, without referring to any specific provisions of

the Convention in this regard, complain that the Working Hours Act

should not have applied in their case, and that they should have

benefitted from the application of the principle that a person should

not be convicted if the harm caused by a conviction is greater that the

harm sought to be prevented.

The Commission recalls that Article 6 (Art. 6) of the Convention

does not guarantee any particular content for civil "rights and

obligations" in the substantive law of the Contracting States

(Eur. Court H.R., W. v. the United Kingdom, judgment of 8 July 1987,

Series A no. 121, para. 73, p. 32), and that, equally, Article 6

(Art. 6) does not determine the substantive content of the criminal law

of Contracting States.

The Commission notes that the reason for the applicability of the

Working Hours Act in this case is that hospital administration had been

reorganised in Steiermark on private law lines, and the Provincial

Governor considered that the company did not fall within the exceptions

which applied to public law bodies. This view was confirmed by the

Administrative Court.

The Commission finds in the circumstances that this aspect of the

case does not disclose any appearance of a violation of Article 6

(Art. 6) of the Convention or any other Convention provision.

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 applicants allege that the fines imposed were so exorbitant

that Article 1 of Protocol No. 1 (P1-1) to the Convention was violated.

Article 1 of Protocol No. 1 (P1-1) to the Convention provides 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 applicants were fined in administrative criminal proceedings

for permitting, or not preventing, excessive working hours at hospitals

for which they were responsible under Austrian law. The offences

related to a large number of specific incidents of excessive hours.

The fines amounted to over AS 600,000 for each applicant at first

instance (they were reduced slightly on appeal in connection with some

allegations), and were arrived at by the cumulation of fines in the

individual cases.

The Commission notes that an interference with property which is

for the purpose of securing "the payment of taxes or other

contributions or penalties", such as the administrative criminal

penalties in the present case, will generally be justified by virtue

of the operation of the second paragraph of Article 1 of Protocol No. 1

(P1-1).

The Commission is, however, entitled to "consider whether the

interference with [an applicant's] right under Article 1 of Protocol

No. 1 (P1-1) is justified by the second paragraph before considering,

if necessary, whether the requirements set out in the second sentence

of the first paragraph are fulfilled" (see No. 13013/87, Dec. 14.12.88,

D.R. 58, p. 163, 186).

In the present case the applicants were fined for a series of

infringements of the Working Hours Act. Whilst it is true that, as a

result of the large number of individual infringements, the cumulative

effect of the fines was to impose a large penalty on the applicants,

it cannot be said that the principle that administrative fines are

cumulated in these circumstances in any way conflicts with the second

paragraph of Article 1 (Art. 1-2). In the Commission's view, this is

so regardless of the way in which the principle of cumulation applies,

or does not apply, in ordinary criminal cases in Austria.

The Commission finds no indication in the present case that the

fines imposed on the applicants fell beyond the limits of what is

acceptable in the context of the second paragraph of Article 1 of

Protocol No. 1 (P1-1) to 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. Finally, the applicants allege violation of certain procedural

aspects 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 applications 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

DECIDES TO ADJOURN its examination of the complaints made under

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

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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MOSER AND BOSCH v. AUSTRIA

MOSER AND BOSCH v. AUSTRIA

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