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AS TO THE ADMISSIBILITY OF

Application No. 16713/90

by Johan PRAMSTALLER

against Austria

The European Commission of Human Rights sitting in private

on 10 May 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 May 1990

by Johan Pramstaller against Austria and registered on 13 June

1990 under file No. 16713/90 ;

Having regard to:

- the report provided for in Rule 47 of the Rules of

Procedure of the Commission;

- the observations submitted by the respondent Government on

21 February 1992 and the observations in reply submitted by the

applicant on 12 June 1992 ;

- the submissions of the parties at the oral hearing held on

10 May 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen. 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 parties, may be

summarised as follows:

On 10 November 1987 the Lienz District Authority (Bezirkshaupt-

mannschaft) served a penal order (Straferkenntnis) on the applicant for

failure to erect a wall forming part of a building for which planning

permission had been granted on 17 March 1987.

He was ordered to pay a fine of AS 50,000 with fifty days'

imprisonment in default, plus costs. The applicant, represented by the

firm which, in the meantime, had taken a lease of the property from the

applicant, appealed to the Tyrol Regional Government (Amt der Tiroler

Landesregierung) which, on 22 March 1988, rejected the applicant's

appeal.

The applicant made a complaint to the Constitutional Court

(Verfassungsgerichtshof), alleging, inter alia, violation of Article

6 of the Convention. The Constitutional Court, in summary proceedings,

declined to deal with the case.

On 14 September 1989, the Administrative Court (Verwaltungs-

gerichtshof) rejected the applicant's complaint. As to Article 6 of

the Convention, the Administrative Court referred to the Constitutional

Court's decision, which had found the applicant's constitutional

arguments not relevant. The Administrative Court declined to hold an

oral hearing.

COMPLAINTS

The applicant alleges violations of Article 6 of the Convention.

1. He complains that he did not have access to an independent court

within the meaning of Article 6 para. 1 for the determination of the

criminal charge against him, as the administrative authorities which

dealt with the case were both comprised of civil servants, and neither

of the courts which dealt with the case was able to take decisions as

to facts.

2. He considers that the burden of proof was reversed in the present

case such that he was required to prove that he had not been involved

in the criminal actions alleged.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 May 1990 and registered on

13 June 1990.

On 16 October 1991 the Commission decided to request the parties

to submit their written observations on the admissibility and merits

of the application.

The respondent Government submitted their observations on

21 February 1992 and the applicant submitted his observations, after

expiry of the time-limit, on 12 June 1992.

On 15 February 1993 the Commission decided to hear the parties

as to the admissibility and merits of this case and Applications Nos.

15523/89, 15527/89, 15963/90, 16718/90 and 16841/90. At the hearing

the parties were represented as follows:

For the Government:

Ambassador F. Cede Legal Adviser, Federal Ministry for Foreign

Affairs, Agent

Ms. S. Bernegger Federal Chancellery, Adviser

For the applicant:

Mr. W.L. Weh Representative

THE LAW

1. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1)

of the Convention in that the administrative authorities which dealt

with the case did not constitute courts within the meaning of that

provision, and neither the Administrative Court nor the Constitutional

Court was able to take a decision as to the facts.

The respondent Government submit that the Austrian reservation

to Article 5 (Art. 5) of the Convention prevents the Commission from

examining this question. They accept, however, that if the reservation

does not apply in the present case the review by the Administrative and

Constitutional Courts does not comply with Article 6 para. 1 (Art. 6-1)

of the Convention.

They consider that the absence of an oral public and direct

hearing is covered by the Austrian reservation to Article 6 (Art. 6)

of the Convention. They also point out that the applicant did not make

a complaint about the absence of a hearing before the Administrative

Court.

In connection with Article 144 para. 2 of the Federal

Constitution, the Government consider that, although the provision

provides for non-acceptance of a constitutional complaint on grounds

which were not in force in 1958 when the reservation was made, the

ability of the Constitutional Court to refuse to deal with complaints

against decisions without giving detailed reasons is only a procedural

limitation, not a substantive one. They point out that any complaint

lodged with the Constitutional Court against a decision of the

administrative authority is considered as a comprehensive review.

The applicant considers that the Austrian reservation to Article

5 (Art. 5) of the Convention is neither valid nor applicable. He also

considers that the limitation of the Constitutional Court's

jurisdiction by Article 144 para. 2 of the Federal Constitution does

not meet the requirements of the reservation, even if it applies. He

considers that the reservation to Article 6 (Art. 6), if valid, is not

applicable to the present proceedings.

The Commission finds that this complaint raises complex issues

of law under the Convention including questions concerning the Austrian

reservations to Articles 5 and 6 (Art. 5, 6) of the Convention, the

determination of which must be reserved to an examination of the

merits.

This part of the application cannot, therefore, be declared

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

2. The applicant also alleges a violation of Article 6 para. 2

(Art. 6-2) of the Convention in that he was convicted of erecting a

building in a way which was at variance with the planning permission

which had been granted, i.e., he failed to erect a wall, although

having granted a lease of the building to a firm, he was unable to have

control of the building works and then not able to prove his innocence.

The Commission notes that the planning permission was granted to

the applicant in his own name. In such circumstances, his conviction

for failure to comply with the planning permission does not raise

issues under Article 6 para. 2 (Art. 6-2) of the Convention, regardless

of whether, pursuant to the lease he had voluntarily entered into, the

property remained under the applicant's direct control or not.

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.

For these reasons, the Commission unanimously

DECLARES INADMISSIBLE the applicant's complaint relating to the

presumption of innocence;

DECLARES ADMISSIBLE, without prejudice to the merits, the

remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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PRAMSTALLER v. AUSTRIA

PRAMSTALLER v. AUSTRIA

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