CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 octobre 1995

.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. 23394/94                       by Siegfried GMEINER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 24 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 5 January 1994 by Siegfried GMEINER against Austria and registered on 4 February 1994 under file No. 23394/94;        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 national, residing in Dornbirn. In the proceedings before the Commission he is represented by Mr. W. Weh, a lawyer practising in Bregenz.        The facts of the case, as submitted by the applicant, may be summarised as follows.        The applicant is the leaseholder of a plot of land, on which he deposited excavated material.        On 9 December 1986 the Bregenz District Administrative Authority (Bezirkshauptmannschaft), referring to the relevant provisions of the Vorarlberg Landscape Protection Act (Landschaftsschutzgesetz), ordered the applicant to remove the excavated material from the plot of land. The decision was confirmed by the Vorarlberg Provincial Government (Landesregierung) on 28 July 1987 and, finally, by the Administrative Court (Verwaltungsgerichtshof) on 24 October 1988. The present application relates to two sets of subsequent proceedings.   a.    The proceedings relating to the costs of the removal        On 19 June 1989 the Bregenz District Administrative Authority ordered that the removal of the material be carried out by a building enterprise, as the applicant had failed to comply with the order of 9 December 1986. Referring to the relevant provision of the Administrative Enforcement Act (Verwaltungsvollstreckungsgesetz), it also ordered the applicant to pay AS 240,000 as an advance on costs. The applicant's appeals against this decision remained unsuccessful.        On 7 May 1990 the Vorarlberg Provincial Government, referring to an expert opinion of 26 March 1990 by a geologist, ex officio modified its decision of 28 July 1987. It noted that according to the expert opinion the material around a telegraph pole situated on the plot of land at issue contributed to its stability and prohibited it from bending and that a removal of the material deposited along the road might cause the road to slide. Consequently, it ordered the applicant to remove the excavation material, except within a radius of ten meters around the telegraph pole and within five meters of the adjacent road.        On 23 August 1990 the building enterprise started to remove the material from the plot of land at issue and deposited it on a dumping ground.        On 21 December 1990 the Bregenz District Administrative Authority, again referring to the Administrative Enforcement Act, ordered the applicant to pay the costs of the removal of about AS 580,000 minus AS 240,000 which he had already paid in advance. The authority noted that he had not complied with the order to remove the material and was therefore liable to pay the costs of the building enterprise which had carried out the removal in his place.        On 12 March 1991 the Vorarlberg Provincial Government dismissed the applicant's appeal.        On 12 August 1991 the Constitutional Court (Verfassungsgerichts- hof) rejected the applicant's complaint and referred it to the Administrative Court.        On 26 April 1993 the Administrative Court dismissed the applicant's complaint. The Court noted the applicant's submissions as regards the amount of costs he had been ordered to pay, namely that the authority had accepted AS 580,000 as final costs although it had, allegedly without having ordered a binding estimate of cost, only requested him to pay an advance of AS 240,000. It further noted that the applicant claimed to have offered that the material at issue be deposited on various plots of land belonging to him, thereby avoiding the deposit on a dumping ground and diminishing the costs.        The Court, referring to its case-law, recalled that a party was not obliged to pay the costs of a measure like the one at issue, if they did not result from the lawful execution of a decision or if they were excessive. However, in the present case, the costs resulted from the lawful execution of the Bregenz District Administrative Authority's decision ordering that the removal be carried out by a building enterprise. Further, the applicant's allegation that the authority had not duly ordered a cost estimate and had accepted excessive costs appeared unfounded. Already the decision of 19 June 1989, which had ordered him to pay AS 240,000 as an advance on costs, had stated that this amount would only cover approximately half of the costs. Moreover, according to the file the applicant had been requested several times to indicate other plots of land on which the material at issue could be deposited, but had failed to do so.        This decision was served on the applicant on 5 July 1993.   b.    The administrative criminal proceedings        On 7 March 1990 the Dornbirn District Administrative Authority, in administrative criminal proceedings, ordered the applicant to pay a fine of AS 20,000, with provision for twenty days' imprisonment in default. The authority referred to S. 34 para. 1 (f) of the Vorarlberg Landscape Protection Act and found that the applicant had not complied with the obligation to remove the excavated material from the plot of land at issue, as ordered in the decision of 9 December 1986. The applicant's appeal to the Vorarlberg Provincial Government was dismissed on 13 September 1990.        On 26 April 1993 the Administrative Court, upon the applicant's complaint, quashed the decision of 13 September 1990. The Court found that the failure to comply with an order was not punishable if compliance would be in breach of other provisions of the legal order. In the present case, the applicant had been fined for not having completely removed all excavation material on the plot of land leased by him. However, it followed from the expert opinion of 26 March 1990 that the complete removal of the excavation material might have caused the telegraph pole to bend or the adjacent road to slide. Thus, it would have interfered with the rights of others.        On 15 September 1993 the Vorarlberg Provincial Government, in renewed proceedings, ordered the applicant to pay a fine of AS 15,000, with provision for fifteen days' imprisonment in default. The authority, referring to S. 34 para. 1 (f) of the Vorarlberg Landscape Protection Act, found that the applicant had not complied with the obligation to remove the excavated material from those parts of the plot of land at issue where such a removal was possible without interfering with the rights of others, i.e. except within a radius of ten meters around the telegraph pole and within five meters of the adjacent road.        On 30 November 1993 the Constitutional Court rejected the applicant's complaint for lack of sufficient prospects of success.        On 30 May 1994 the Administrative Court dismissed the applicant's complaint. The Court noted in particular the applicant's submission that, until 7 May 1990, when the order was limited to the removal of the excavation material on certain parts of the land, he could not comply with it without interfering with the rights of others. However, the applicant had failed to show why he had been unable to remove the material from those parts of the land, where there would not have been any interference with the rights of others. The Court also noted the applicant's submission that he had not been able to comply with the order as the owner of the plot of land had not been ordered to tolerate the removal. The Court, referring to the Vorarlberg Landscape Protection Act, found that this argument was not valid, as the land owner, even if he had not himself deposited the material, was obliged to tolerate measures connected with its removal.   It also declined to hold the oral hearing he had requested.   COMPLAINTS   1.    The applicant complains about the decisions ordering him to pay the costs of the removal of material he had deposited on a plot of land leased. He submits that the authorities arbitrarily prevented him from carrying out the removal himself at a lower cost and in essence wanted to penalise him. In particular he claims that he had requested the authorities to serve a decision on the owner of the land, in order to oblige him to tolerate the removal of the material and that he had offered several times to remove the material to one of his own plots of land. He invokes Articles 6 and 7 of the Convention and Article 1 of Protocol No. 1.   2.    The applicant complains under Article 7 about the decisions ordering him to pay a fine for non-compliance with the removal order. He submits in particular that an omission is not punishable, if the conduct would have been contrary to other provisions of the legal order. He argues that it is prohibited by the general rules of civil law to remove material from foreign ground. According to him the authorities should have served the removal order on the land owner in order to oblige him to tolerate the removal of the material at issue.   3.     The applicant also complains that the administrative criminal proceedings against him were in breach of Article 6 of the Convention, as he did not have a fair hearing before a tribunal within the meaning of this provision. In particular, he submits that the administrative authorities lack the quality of tribunals and that the control exercised by the Administrative Court is insufficient. He also complains that he did not have an oral hearing before the Administrative Court.   THE LAW        As to the proceedings relating to the costs of the removal   1.    The applicant complains about the decisions ordering him to pay the costs of the removal of material he had deposited on a plot of land leased. He submits that the authorities arbitrarily prevented him from carrying out the removal himself at a lower cost and in essence wanted to penalise him. He invokes Articles 6 (Art. 6) and 7 (Art. 7) of the Convention and Article 1 of Protocol No. 1 (P1-1).        The Commission has first examined the above complaints under Article 1 of Protocol No. 1 (P1-1) which reads 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 Commission finds that the applicant's obligation under the Vorarlberg Landscape Protection Act, to pay the costs of the removal of material from a plot of land, does not concern a deprivation of possessions within the meaning of paragraph 1 of Article 1 (Art. 1-1), but has to be considered as a control of the use of the applicant's property, falling within the scope of the second paragraph of this Article (Art. 1-2).        The Commission recalls that this paragraph requires that the interference is lawful and serves a legitimate aim. Moreover the interference must be proportional, achieving a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. There must be a reasonable relationship between the means employed and the aim pursued. In determining whether this requirement is met, the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see Eur. Court H.R., Fredin judgment of 18 February 1991, Series A no. 192, pp. 16-17, paras. 48-51).        As regards the lawfulness of the interference, the Commission notes that the impugned administrative decisions were based on the Administrative Enforcement Act in conjunction with the Vorarlberg Landscape Protection Act. There is no indication that the applicant's obligation to pay the costs was not in accordance with domestic law.        The Commission further considers that the interference at issue pursued a legitimate aim in the general interest, namely the enforcement of landscape protection.        As regards the necessity of the interference, the Commission notes that the applicant was first ordered to carry out the removal of the material himself, but failed to comply with this order. Further, he had the possibility to lodge appeals against the Bregenz District Administrative Authority's decision of 19 June 1989, ordering him to pay an advance on costs. However, his appeals remained unsuccessful.        Finally, the District Administrative Authority ordered him to pay the remaining costs. The Administrative Court, in its decision of 26 April 1993, rejected the applicant's allegations that the said Authority had not duly ordered a cost estimate and had accepted excessive costs. It also noted that the applicant had been requested several times to indicate other plots of land on which the material could be deposited, but had failed to do so. Considering all circumstances, the Commission finds no indication of disproportionality.        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 invokes Article 6 (Art. 6) of the Convention. However, even assuming that this Article (Art. 6) applies to the proceedings at issue, the Commission, having regard to its above findings, considers that the applicant failed to show that he could not duly present his arguments or that the proceedings were otherwise unfair.        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.   3.    The applicant further invokes Article 7 (Art. 7) of the Convention.        Article 7 para. 1 (Art. 7-1) provides as follows:        "No one shall be held guilty of any criminal offence on account      of any act or omission which did not constitute a criminal      offence under national or international law at the time when it      was committed.   Nor shall a heavier penalty be imposed than the      one that was applicable at the time the criminal offence was      committed."        This Article (Art. 7-1) relating to the imposition of penalties for criminal offences does not apply to proceedings concerning the costs of an enforcement measure.        It follows that this part of the application is incompatible ratione materiae within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        As to the administrative criminal proceedings   4.    The applicant also complains under Article 7 (Art. 7) about the decisions ordering him to pay a fine for non-compliance with the removal order.   He argues that it is prohibited by the general rules of civil law to remove material from foreign ground. According to him the authorities should have served the removal order on the land owner in order to oblige him to tolerate the removal of the material at issue.        The Commission is not called upon to decide whether this provision applies to the imposition of a fine in administrative criminal proceedings under Austrian law, as the complaint is in any case inadmissible for the following reasons.        The Commission firstly notes that the Dornbirn District Administrative Authority when ordering the applicant to pay a fine referred to S. 34 para. 1 (f) of the Vorarlberg Landscape Protection Act and found that the applicant had not complied with the obligation to remove the excavated material from the plot of land at issue, as ordered in the decision of 9 December 1986. The offence was therefore clearly punishable under Austrian law. Furthermore, the Administrative Court, in its judgment of 30 May 1994, dismissed the applicant's argument that he was prohibited from removing the material from foreign ground. It found that the land owner, under the Vorarlberg Landscape Protection Act, is obliged to tolerate the removal of material, also if he has not himself deposited it on his plot of land. In these circumstances, the Commission finds that there was no element of unreasonable uncertainty of the law (No. 8141/78, Dec. 4.12.78, D.R. 16, p. 142).        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.   5.    The applicant also complains that the administrative criminal proceedings against him were in breach of Article 6 (Art. 6) of the Convention, as he did not have a fair hearing before a tribunal within the meaning of this provision. In particular, he submits that the administrative authorities lack the quality of tribunals and that the control exercised by the Administrative Court is insufficient. He also complains that he did not have an oral hearing before the Administrative Court.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the Government.        For these reasons, the Commission, unanimously,        DECIDES TO ADJOURN the applicant's complaint that, in the      criminal administrative proceedings against him, he did not have      a fair and oral hearing before a tribunal.        DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)