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)
Full & Egal Universal Law Academy