CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mai 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)