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)
Full & Egal Universal Law Academy