AS TO THE ADMISSIBILITY OF
Application No. 18724/91
by Werner PROKSCH
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 1 August 1991 by
Werner Proksch against Austria and registered on 26 August 1991 under
file No. 18724/91;
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 1945. 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 applicant may
be summarised as follows.
Particular circumstances of the case
The applicant is the representative of a company ("Hypo-Rent")
for the purposes of Austrian Administrative criminal law. On 19 August
1987 Hypo-Rent bought a parcel of land with planning permission for two
separate shops of under 400 square metres each. Hypo-Rent entered into
a leasing contract with a legally separate firm, F.M. Zumtobel. It
appears that the contract requires Zumtobel to construct in accordance
with planning conditions. On 17 September 1987 the applicant was
served notice that the building, which was proceeding, was not in
accordance with the conditions in the planning permission. On
20 November 1987 it was established that a partition wall between the
two shops had not been erected, with the result that a shopping centre
of over 1,000 square metres had been constructed. Such a shopping
centre would have needed special planning consent.
On 8 April 1988 the Mayor of Innsbruck issued a penal order
(Straferkenntnis) finding the applicant to have constructed a building,
namely a shopping centre, without the requisite special planning
consent. He was fined AS 40,000, with 40 days' detention in default.
The applicant appealed to the Provincial Government of Tyrol (Tiroler
Landesregierung) which, on 26 May 1988, rejected his appeal. The
applicant further appealed to the Administrative and Constitutional
courts. The Constitutional Court (Verfassungsgerichtshof) rejected his
complaint on 26 September 1988.
The Administrative Court (Verwaltungsgerichtshof) gave its
decision on 6 December 1990. It referred, first, to its own case-law
and that of the Constitutional Court that Article 5 para. 1 of the Code
of Administrative Offences 1950 is not incompatible with Article 6 of
the Convention. Accordingly, the Administrative Court declined to go
into the applicant's complaints under Article 6 para. 2 of the
Convention that the effect of Article 5 para. 1 of the Code of
Administrative Offences was to reverse the presumption of innocence.
The Administrative Court then proceeded to note that the failure
to construct the partition wall between the two independent shops had
the effect of producing a different building, which needed special
consent as a shopping centre. The fact that the actual construction
had been undertaken by a different firm under a contract with Hypo-Rent
did not affect the applicant's responsibility. It also found that the
contract with the firm of F.M. Zumtobel merely provided for Zumtobel
to fulfil planning conditions for the name and account of Hypo-Rent,
and it added that the applicant had been unable to show that it would
have been impossible for him to prevent the breach of the planning
consent. The administrative complaint was rejected.
Relevant Domestic Law
Code of Administrative Offences: Article 5 para. 1
(Original)
"Wenn eine Verwaltungsvorschrift über das Verschulden nicht
anderes bestimmt, genügt zur Strafbarkeit fahrlässiges Verhalten.
Fahrlässigkeit ist bei Zuwiderhandeln gegen ein Verbot oder bei
Nichtbefolgung eines Gebotes dann ohne weiteres anzunehmen, wenn
zum Tatbestand einer Verwaltungsübertretung der Eintritt eines
Schadens oder einer Gefahr nicht gehört und der Täter nicht
glaubhaft macht, maß ihn an der Verletzung der
Verwaltungsvorschrift kein Verschulden trifft."
(Translation)
"Unless a provision of administrative law states otherwise,
negligent behaviour is sufficient to establish guilt. Negligence
is to be assumed in the case of failure to observe a prohibition
or a prescription where damage or danger is not an element of the
administrative offence, and the defendant does not convincingly
show that no fault lies with him for the contravention of the
provision of administrative law".
COMPLAINTS
The applicant alleges violation of Article 6 of the Convention.
He alleges, first, that the Austrian system of review by the
Administrative and Constitutional courts of the decisions of
administrative authorities does not satisfy the requirements of Article
6, and that the Austrian reservation to Article 5 of the Convention
does not apply in this case. He also considers that the effect of
Article 5 para. 1 of the Code of Administrative Offences is to place
the burden of proof upon a defendant, and thus to infringe the
presumption of innocence contrary to Article 6 para. 2 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 1 August 1991 and registered
on 26 August 1991.
On 1 July 1992 the Commission (Second Chamber) decided to bring
the application to the notice of the respondent Government without
requesting observations.
THE LAW
1. The applicant alleges violation of Article 6 para. 2
(Art. 6-2) of the Convention by virtue of the operation of Article 5
para. 1 of the Code of Administrative Offences in this case.
Article 6 para. 2 (Art. 6-2) of the Convention provides as
follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
Article 5 para. 1 of the Code of Administrative Offences first
lays down a statement of substantive law that in the administrative
criminal offences to which it applies, negligent behaviour is
sufficient to establish guilt. It then continues with a presumption
that negligence is to be assumed where the offence is one of failure
to do or to fail to do an act where, provided the case is not one of
a specified category, a defendant cannot establish that no fault lies
with him.
The Commission recalls that the European Court of Human Rights
has given guidance as to the interpretation of this type of presumption
in the case of Salabiaku (Eur. Court H.R., Salabiaku judgment of
7 October 1988, Series A no. 141-A, pp. 14-18, paras. 26-30). The
Court recalled that the Convention does not prohibit presumptions of
fact or law in principle, but does require Contracting States to remain
within certain limits as regards criminal law (p. 15, para. 28) which
take into account the importance of what is at stake and maintain the
rights of the defence (p. 16, para. 28).
Notwithstanding the operation of Article 5 para. 1 of the Code
of Administrative Offences, it remains for the prosecuting authorities
to establish the elements of an administrative offence. Thus if the
offence is of failure to construct a wall in circumstances where an
individual is under a duty to erect a wall, the prosecution must
establish that the wall was not erected and that the individual was
under the duty. The presumption in Article 5 para. 1 then relates to
the mental element required for a conviction: it specifies that
negligence is sufficient to found a conviction, and that negligence is
assumed where, as here, a requirement to do something has not been
fulfilled and the defendant cannot show that he was not at fault.
The Commission finds that the second sentence of Article 5
para. 1 of the Code of Administrative Offences is no more than a
statutory repetition of the common sense proposition that where a
person does a prohibited action, or fails to do something which he is
under a duty to do, the conclusion can reasonably be drawn that he has
contravened the provision at issue, unless he can show that he was not
at fault.
The applicant in the present case tried to allege that he was not
at fault because the actual construction works had been undertaken by
a separate firm under a contract with Hypo-Rent. The Administrative
Court rejected this argument as the firm which did the construction
works in any event did them for the name and account of Hypo-Rent, and
the applicant had not been able to show that he had lost control of the
building.
In any event, as Hypo-Rent had the benefit of the planning
consent which contained the conditions, there is no reason why the
applicant - on behalf of Hypo-Rent - should not remain responsible for
breaches of a condition of that consent.
The Commission finds no indication in the present case that the
provisions of Article 5 para. 1 of the Code of Administrative Offences
operated contrary to the provisions of Article 6 para. 2 (Art. 6-2) of
the Convention.
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)
Full & Egal Universal Law Academy