CEDH · CASELAW;REPORTS;ENG — 9 avril 1997

.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 } .s23A41E03 { width:36pt; display:inline-block } .s8828C2CA { width:31.28pt; display:inline-block } .s41A29154 { width:6.84pt; display:inline-block } .s9A9585A5 { width:23.34pt; display:inline-block } .s28DAEA75 { width:27.97pt; display:inline-block } .s3BF17DD1 { width:28.07pt; display:inline-block } .s932E7F2A { width:27.5pt; display:inline-block } .s9B2C2C0D { width:18.61pt; display:inline-block } .s79535B21 { width:28.92pt; display:inline-block } .s49A78FE0 { width:26.55pt; display:inline-block } .s7742A756 { width:35.15pt; display:inline-block } .s811DC823 { width:21.93pt; display:inline-block } .s69CD3139 { width:17.11pt; display:inline-block } .s9288C869 { width:26.97pt; display:inline-block } .s47910EFF { width:19.57pt; display:inline-block } .sE5F20D9E { width:17.28pt; display:inline-block } .s490C142E { width:28.91pt; display:inline-block } .sECC8F45 { width:24.18pt; display:inline-block } .s44B3A84A { width:19.48pt; display:inline-block } .s7F5ECC96 { width:23.73pt; display:inline-block } .sC54A673A { width:28.45pt; display:inline-block } .s50014358 { width:26.56pt; display:inline-block } .s80F1F894 { width:21.82pt; display:inline-block } .s6CFF9571 { width:25.89pt; display:inline-block } .s6B20963A { width:34.33pt; display:inline-block } .s9683AE69 { width:28.54pt; display:inline-block } .s5B2D21E2 { width:23.44pt; display:inline-block }        EUROPEAN COMMISSION OF HUMAN RIGHTS     FIRST CHAMBER     Application No. 23394/94     Siegfried Gmeiner     against     Austria     REPORT OF THE COMMISSION     (adopted on 9 April 1997)     TABLE OF CONTENTS     Page   I.   INTRODUCTION     (paras. 1-15)   1     A.   The application     (paras. 2-4)   1     B.   The proceedings     (paras. 5-10)   1     C.   The present Report     (paras. 11-15)   2   II.   ESTABLISHMENT OF THE FACTS   (paras. 16-22)   3   III.   OPINION OF THE COMMISSION   (paras. 23-31)   5     A.   Complaint declared admissible     (para. 23)   5     B.   Point at issue     (para. 24)   5     C.   As regards Article 6 of the Convention     (paras. 25-31)   5       CONCLUSION     (para. 31)   6   APPENDIX I:   PARTIAL DECISION OF THE COMMISSION AS TO THE             ADMISSIBILITY OF THE APPLICATION   7   APPENDIX II:   FINAL DECISION OF THE COMMISSION AS TO THE                   ADMISSIBILITY OF THE APPLICATION   14     I.   INTRODUCTION     1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2.   The applicant is an Austrian citizen residing in Dornbirn.   He was represented before the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.   3.   The application is directed against Austria.   The respondent Government were represented by Mr. F. Cede, Agent of the Austrian Federal Government.   4.   The case concerns administrative criminal proceedings for refusal by the applicant to remove excavated material from a plot of land of which he is the leaseholder.   B.   The proceedings   5.   The application was introduced on 5 January 1994 and registered on 4 February 1994.   6.   On 24 October 1995 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 6.   It declared the remainder of the application inadmissible.   7.   By a letter of 26 March 1996 the Government stated that they waived objections on the application if the Commission decided to declare it admissible.   8.   On 16 April 1996 the Commission declared the remainder of the application admissible.   9.   The text of the Commission's decision on admissibility was sent to the parties on 29 January 1996 and they were invited to submit such further information or observations on the merits as they wished.   No such observations were submitted.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:         Mrs.   J. LIDDY, President     MM.   M.P. PELLONPÄÄ       E. BUSUTTIL       A. WEITZEL       C.L. ROZAKIS       L. LOUCAIDES       B. MARXER       B. CONFORTI       I. BÉKÉS       G. RESS       A. PERENI?       C. BÎRSAN       K. HERNDL       M. VILA AMIGÓ     Mrs.   M. HION     Mr.   R. NICOLINI     12.   The text of this Report was adopted on 9 April 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   14.   The Commission's decisions on the admissibility of the application are annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   16.   The applicant is the leaseholder of a plot of land, on which he deposited excavated material.   17.   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.   18.   On 7 March 1990 the Dornbirn District Administrative Authority, in administrative criminal proceedings, ordered the applicant to pay a fine of AS 20,000.00 with 20 days' imprisonment in default. The authority referred to Section 34 (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.   19.   On 26 April 1993 the Administrative Court, on 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 an 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.   20.   On 15 September 1993 the Vorarlberg Provincial Government, in renewed proceedings, ordered the applicant to pay a fine of AS 15,000.00 with 15 days' imprisonment in default. The authority, referring to Section 34 (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 metres around the telegraph pole and within five metres of the adjacent road.   21.   On 30 November 1993 the Constitutional Court rejected the applicant's constitutional complaint for lack of sufficient prospects of success.   22.   On 30 May 1994 the Administrative Court dismissed the applicant's administrative 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.   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible   23.   The Commission has declared admissible the applicant's complaint that his conviction in administrative criminal proceedings was not accompanied by the requisite procedural guarantees, in particular that the Administrative Court was not a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and that he did not have an oral hearing before the Administrative Court.   B.   Point at issue   24.   The only point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.   As regards Article 6 (Art. 6) of the Convention   25.   Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:       "1.   In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... "   26.   The applicant claims that he did not have the benefit of a "tribunal" in the administrative criminal proceedings against him.   27.   The Government do not wish to make observations on the case.   28.   The Commission recalls that in a series of judgments (Eur. Court HR, Schmautzer v. Austria, Umlauft v. Austria and Gradinger v. Austria judgments of 23 October 1995, Series A no. 328-A, 328-B and 328-C, and Pramstaller v. Austria, Palaoro v. Austria and Pfarrmeier v. Austria, Series A no. 329-A, 329-B and 329-C), the European Court of Human Rights found that the proceedings determined a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6- 1) of the Convention, that the Austrian reservation to Article 5 (Art. 5) did not apply to the criminal administrative proceedings at issue, and that neither the Constitutional Court (Verfassungsgerichtshof) nor the Administrative Court (Verwaltungsgerichtshof) had the "full jurisdiction" required by Article 6 (Art. 6) in criminal cases.   29.   In the present case, too, the administrative criminal proceedings were considered by the Constitutional Court and the Administrative Court, and those courts had the same jurisdiction as they had in the cases of Schmautzer and others.   30.   The Commission therefore finds that the applicant did not have access to a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.     CONCLUSION   31.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     M.F. BUQUICCHIO             J. LIDDY      Secretary             President    to the First Chamber         of the First Chamber