AS TO THE ADMISSIBILITY OF
Application No. 21585/93
by Gerhard RESCH
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 28 December 1992
by Gerhard Resch against Austria and registered on 25 March 1993 under
file No. 21585/93;
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 1951. He is the
manager (Geschäftsführer) of a construction company which carries his
name. The applicant lives in Aigen im Mühlkreis, in Upper Austria.
He is represented by Mr P. Wagner, a lawyer practising in Linz. The
facts of the present case, as submitted by the applicant, may be
summarised as follows:
The particular circumstances of the case
On 17 May 1991 five penal notices (Straferkenntnisse) were served
on the applicant by the Rohrbach District Authority
(Bezirkshauptmannschaft), finding him guilty of contraventions of
Regulations 43 (1) and 44 (4) of the Construction Workers (Protection)
Order (Bauarbeiterschutzverordnung). He was fined 5,000 shillings in
each case, with six days' detention in default in each case. His
appeal, addressed to the Independent Administrative Senate for Upper
Austria (Unabhängiger Verwaltungssenat), was rejected by the Upper
Austrian Regional Government (Landesregierung) on 12 May 1992. The
applicant then made an administrative complaint to the Administrative
Court (Verwaltungsgerichtshof). The Administrative Court on
29 June 1992 dismissed the complaint. It noted that the applicant
accepted that the facts alleged (the individual contraventions of the
safety legislation) had taken place. As to the "subjective" element,
the applicant would only have been relieved, in accordance with Section
31 (5) of the Workers (Protection) Act, of (administrative) criminal
responsibility if he could have shown that, in delegating the oversight
of the building site to a third person, he had shown the necessary
care. That care included complying with the safety regulations, and
the applicant had not shown it. As to Article 6 of the Convention, the
Administrative Court considered that it was sufficient to refer to a
previous decision of 8 May 1987, in which it had found that the
Austrian reservation to Article 5 of the Convention prevented the
application of Article 6.
Relevant domestic law
Regulation 43 (1) of the Construction Workers (Protection) Order
provides that work on roofs may only be commenced when appropriate
safety measures have been put in place. Regulation 44 (4) of the Order
provides that workers on roofs with a slope of over 20° must attach
themselves securely to the roof with ropes.
Section 31 (5) of the Employees (Protection) Act provides that
employers and their representatives are criminally liable where a
contravention of regulations is committed with their knowledge or when
they have failed to exercise appropriate care in supervising work or
representatives.
COMPLAINTS
The applicant alleges a violation of his right to "fair
proceedings in accordance with Article 6 of the Convention". He also
alleges that he was required to establish his innocence, rather that
the authorities being required to prove him guilty, and that this was
in violation of Article 6 para. 2 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 December 1992 and registered
on 25 March 1993.
On 7 September 1993 the Commission (First Chamber) decided to
bring the application to the notice of the respondent Government
without requesting observations.
THE LAW
1. The applicant alleges a violation of Article 6 para. 2
(Art. 6-2) of the Convention on the ground that he was required to
establish his innocence because he had had to show that he had
displayed the necessary care in delegating supervision of the works.
Article 6 para. 2 (Art. 6-2) reads as follows.
"2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission notes that the applicant was charged with and
convicted of offences under Regulations 43 (1) and 44 (4) of the
Construction Workers (Protection) Order. Regulation 43 (1) provides
that particular types of work may only be commenced when appropriate
safety measures have been put in place. Regulation 44 (4) provides
that roof workers must be safely attached with ropes. The applicant's
administrative criminal liability flowed from Section 31 (5) of the
Employees (Protection) Act, which attaches criminal administrative
liability to employers who fail adequately to supervise, in this case,
construction works.
The Commission recalls that the facts alleged were not at issue
in the present case. Moreover, it remains in cases such as the present
for the prosecuting authorities to establish the elements of the
administrative offence. Thus in the present case, the prosecution had
to establish that the facts in connection with the specific incidents
were as alleged (in connection with the Regulations), and that the
applicant was the person responsible under Austrian law for the
company. Article 6 para. 2 (Art. 6-2) of the Convention does not
prohibit presumptions of fact and law in principle, but does require
States to remain within certain limits as regards criminal law which
take into account the importance of what is at stake and maintain the
rights of the defence (Eur. Court H.R., Salabiaku judgment of 7 October
1988, Series A no. 141-A, pp. 14 - 18, paras. 26 - 30).
The applicant accepts that the measures actually taken did not
comply with the relevant Regulations, and so it is not easy to see
which presumptions are alleged to have been applied. In any event, in
the context of regulations designed to protect workers, the Commission
finds that the application of those regulations to the employer rather
than to the employee does not amount to a presumption which exceeds the
limits set by the European Court of Human Rights in the case of
Salabiaku: what is at stake is the effective protection of workers, and
it remains open to the defence to show that adequate measures were in
fact taken, such that the rights of the defence are maintained.
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