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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PRAMSTALLER v. AUSTRIA - 16713/90 [1995] ECHR 39 (23 October 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/39.html
Cite as: [1995] ECHR 39
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In the case of Pramstaller v. Austria (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr S.K. Martens,
Mr I. Foighel,
Mr J.M. Morenilla,
Sir John Freeland,
Mr J. Makarczyk,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 28 April and 28 September 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 35/1994/482/564. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 9 September 1994, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 16713/90) against the Republic of Austria lodged with
the Commission under Article 25 (art. 25) by an Austrian national,
Mr Johann Pramstaller, on 18 May 1990.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Austria recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).
3. On 24 September 1994, the President of the Court decided, under
Rule 21 para. 6 and in the interests of the proper administration of
justice, that a single Chamber should be constituted to consider the
instant case and the cases of Schmautzer, Umlauft, Gradinger, Palaoro
and Pfarrmeier v. Austria (1).
_______________
1. Cases nos. 31/1994/478/560, 32/1994/479/561, 33/1994/480/562,
36/1994/483/565 and 37/1994/484/566.
_______________
4. The Chamber to be constituted for this purpose included ex
officio Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On the same day, in the
presence of the Registrar, the President drew by lot the names of the
other seven members, namely Mr L.-E. Pettiti, Mr R. Macdonald,
Mr S.K. Martens, Mr I. Foighel, Mr J.M. Morenilla, Sir John Freeland
and Mr J. Makarczyk (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
5. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Austrian Government
("the Government"), the applicant and the Delegate of the Commission
on the organisation of the proceedings (Rules 37 para. 1 and 38).
Pursuant to the order made in consequence, the Registrar received the
Government's memorial on 24 January 1995 and the applicant's memorial
on 30 January 1995.
6. On 3 February 1995 the Commission produced various documents in
the proceedings before it, as requested by the Registrar on the
President's instructions.
7. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
26 April 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr F. Cede, Ambassador, Head of the International
Law Department, Federal Ministry of
Foreign Affairs, Agent,
Ms I. Sieß, Constitutional Department,
Federal Chancellery,
Ms E. Bertagnoli, International Law Department,
Federal Ministry of Foreign Affairs, Advisers;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicant
Mr W.L. Weh, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Weitzel, Mr Weh and Mr Cede.
AS TO THE FACTS
I. Circumstances of the case
8. Mr Johann Pramstaller lives at Debant, near Lienz.
9. On 17 March 1987 Nußdorf-Debant municipal council granted
Mr Pramstaller planning permission for the construction of new
commercial premises, subject to various detailed conditions: two
groceries should be built, each with appropriate commercial and
sanitary amenities and separate entrances; and a dividing wall was to
be erected between the two shops.
At a later stage the applicant informed the council that he was
envisaging opening a supermarket on the premises, whereupon the council
drew his attention to the specifications in the planning permission,
which allowed only for two different smaller shops to be built, with
separate entrances and divided by a party wall. They further warned
the applicant that failure to comply with these specifications would
result in the works being immediately halted.
10. On 23 July 1987 the council ordered the applicant to suspend the
works. An inspection of the site had shown that, contrary to the terms
of the planning permission, only one larger shop was being built
instead of the two smaller ones. The applicant had thus disregarded
several conditions of the planning permission.
11. On 10 November 1987 the Lienz district authority
(Bezirkshauptmannschaft) served a "sentence order" (Straferkenntnis)
on the applicant pursuant to sections 53(1)(a) and 53(2) of the Tyrol
Building Regulations Act (Tiroler Bauordnung - see paragraph 15 below).
According to the order, it had been established that the applicant had
not only failed to erect the party wall as well as certain amenities,
but had also opened an additional entrance, considerably enlarged the
premises, built an additional wall and created one large shop instead
of the two smaller ones originally planned. In so doing, the applicant
had carried out works without planning permission.
Mr Pramstaller was ordered to pay a fine of 50,000 Austrian
schillings (ATS) with fifty days' imprisonment in default of payment,
plus costs. An appeal by him to the Tyrol regional government (Amt der
Landesregierung) was dismissed on 22 March 1988 on the ground, among
others, that the works carried out by the applicant not only failed to
comply with the permission granted but were in part illegal.
12. Mr Pramstaller then applied to the Constitutional Court
(Verfassungsgerichtshof), alleging, inter alia, a violation of
Article 6 (art. 6) of the Convention in that he had not been able to
bring his case, or have an oral hearing held, before a tribunal which
conformed with that provision (art. 6). On 16 September 1988 the
Constitutional Court declined to accept the case for adjudication under
Article 144 para. 2 of the Federal Constitution (Bundes-
Verfassungsgesetz - see paragraph 18 below) as raising questions
concerning the application of ordinary law (einfaches Gesetz); in so
far as the complaint did raise issues of constitutional law, the
Constitutional Court found that the application did not have sufficient
prospects of success.
13. The applicant then requested to have his case transferred to the
Administrative Court (Verwaltungsgerichtshof), with which grounds of
appeal against the administrative authorities' decision were
subsequently lodged.
14. On 14 September 1989 the applicant's appeal was dismissed by the
Administrative Court pursuant to section 42(1) of the Administrative
Court Act (Verwaltungsgerichtshofsgesetz - see paragraph 22 below).
With regard to the complaints concerning Article 6 (art. 6) of the
Convention, the court pointed out that the Administrative Criminal
Justice Act (Verwaltungsstrafgesetz) did not confer a general right to
a hearing before the administrative authorities. Only in special
circumstances was a hearing to be held.
The Administrative Court then dealt with the remaining complaints
as follows:
"The applicant further submitted that the impugned decision dealt
only with the obligation, noted in the decision at first
instance, to obtain permission not to erect the dividing wall,
and not with the obligation to obtain permission for the other -
in his view minimal - failures to comply with the plan. But as,
he maintained, the question whether these other failures to
comply with the plan might lead to the applicant's being punished
was of importance if the failure to erect the wall was not
punishable, the reasoning was inadequate. This submission is
inaccurate, because the respondent authority did in fact, as it
was entitled to do, take it for granted that planning permission
was necessary for all the measures mentioned in the original
decision. The major building works undertaken by the applicant
were, as the file shows, not covered by permission from the
planning authorities. There was also clearly a consistent
intention to go ahead and build in disregard of the planning
regulations. The applicant further overlooks that, quite apart
from the principle that planning permission was necessary for
such a building project, permission could never have been given
for a shopping centre such as was built in the instant case,
having regard to the provision in section 16(b) of the Tyrol Town
and Country Planning Act, which was declared constitutional by
the Constitutional Court in a decision (B 816/86) of
2 March 1988.
During the planning-application proceedings Mr Pramstaller acted
as the applicant for planning permission and as the owner of the
land and the building on it. The [Z.] firm put itself forward
as the future user of the building. The applicant never disputed
during the administrative criminal proceedings that he was the
person for whom the building was being constructed and that he
was thus liable in administrative criminal law. His submission
that the dividing wall was not built not on his orders but on
those of the [Z.] firm that was using the commercial premises can
therefore not exonerate him as he bore the responsibility for
accepting and carrying out the orders of the future occupier.
The suggestion set out for the first time in the statement of
facts in the supplementary application that the building was
being constructed for another firm is a new submission that is
inadmissible in administrative proceedings by virtue of
section 41(1) of the Administrative Court Act.
It was further submitted that the suspension of the building
works that had been ordered had made it impossible to erect the
dividing wall, although this could have been done without
substantial expenditure even after the building work had stopped,
so that there had been no negligence.
This submission likewise cannot assist the applicant. As the
evidence and the applicant's submission clearly show, there had
been no intention to build the dividing wall even before building
work was suspended; on the contrary, the applicant deliberately
refrained from doing so in order to secure a review of section
16(b) of the Tyrol Town and Country Planning Act by the
Constitutional Court. Furthermore, at the time when the building
works were suspended, there were other important failures to
comply with the planning permission for which approval would have
been needed (see in the statement of facts the details of the
findings made by the authority on 6 July 1987 during an
inspection of the works). The subsequent suspension of building
work is accordingly of no legal significance in the present
context.
The respondent authority also rightly noted that the very fact
of the repeatedly expressed intention not to erect the dividing
wall and to maintain the building in issue in a state that did
not comply with the planning permission and for which no approval
had been given showed that there had been culpable intent.
Similarly, as the respondent authority rightly recognised, the
theoretical possibility that the Constitutional Court might
declare section 16(b) of the Tyrol Town and Country Planning Act
unconstitutional cannot be prayed in aid as a mitigating
circumstance. Contrary to the applicant's submissions, this
purpose could have been achieved other than through failing to
comply with the planning permission by not erecting the dividing
wall and carrying out unauthorised works. It was open to the
applicant at the outset to make an application for planning
permission to build large-scale commercial premises, a shopping
centre, and in this way challenge section 16(b) of the Tyrol Town
and Country Planning Act in the Constitutional Court. The
submission on this point therefore fails.
As to the submission that, contrary to what was stated in the
impugned decision, the authority (municipal council) had agreed
to the dividing wall not being built after a report had been made
by a fire-safety expert, the applicant is referred to the
evidence given by the chairman of the municipal council and to
the note for the file made by him on the day of the meeting, from
which it is quite clear that there was disagreement between the
participants over the question whether authorisation was needed
not to build the dividing wall and that the applicant was
expressly warned by the municipal council that under section 31
of the Tyrol Building Regulations Act read together with
section 16(b) of the Tyrol Town and Country Planning Act, a
building scheme that was altered in this way could not be
authorised. The applicant is mistaken in suggesting that the
statement made by the legal representative of the [Z.] firm, who
was also present at the meeting, constitutes a ground for
excluding his guilt. From the observations filed by counsel for
the applicant on the evidence given by the chairman of the
municipal council it appears that the whole question of
suspending the building works and the issue of the
constitutionality of section 16(b) of the Tyrol Town and Country
Planning Act were discussed and the possibility of challenging
that provision in the Constitutional Court envisaged. The
municipal council was allegedly made aware of this 'outcome of
the negotiations'. The applicant himself, however, states in his
application that there was disagreement among those taking part
in the discussions as to the question of the need for
authorisation not to build the dividing wall, with the municipal
council assuming that such authorisation was necessary whereas
the representative of the [Z.] firm assumed it was sufficient
merely to report the fact. The applicant thus himself admits
that, contrary to later statements in the application and in the
observations on the evidence given by the chairman of the
municipal council, no agreement was reached between the municipal
council and the applicant, so that the assumption that there was
a ground here for excluding the applicant's guilt is invalid on
this ground alone. Nor can the Administrative Court find that
the respondent authority committed any significant procedural
irregularities in this respect in the reasons given for the
impugned decision. The submission on this point is accordingly
unfounded.
The respondent authority dealt at length and accurately with the
grounds for the assessment of punishment and with the assessment
of punishment in general, so that it cannot be criticised in this
respect either.
..."
II. Relevant domestic law and practice
A. Legislation on building
15. Section 53(1)(a) of the Tyrol Building Regulations Act (Tiroler
Landesbauordnung) 1978 provides:
"It shall be an administrative offence (Verwaltungsübertretung)
(a) to carry out without planning permission a building project
that requires planning permission ..."
Section 53(2) provides:
"The administrative offences set out in paragraph 1 shall be
punishable with a fine not exceeding ATS 100,000 or with
imprisonment for up to three months ..."
16. Section 25 of the same Act provides:
"The authorities' permission is required in the following cases:
(a) new building, extensions and conversions; and
(b) alterations to buildings or parts of buildings in so far as
they affect the building's structural soundness, its safety in
the event of fire, its plumbing or its external aspect ..."
B. Procedure
17. Article 90 para. 1 of the Federal Constitution
(Bundes-Verfassungsgesetz) provides:
"Hearings by trial courts in civil and criminal cases shall be
oral and public. Exceptions may be prescribed by law."
1. Proceedings in the Constitutional Court
18. By Article 144 para. 1 of the Federal Constitution, the
Constitutional Court, when an application (Beschwerde) is made to it,
has to determine whether an administrative decision (Bescheid) has
infringed a right guaranteed by the Constitution or has applied
regulations (Verordnung) contrary to the law, a law contrary to the
Constitution or an international treaty incompatible with Austrian law.
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by
means of a decision (Beschluß) decline to accept a case for
adjudication if it does not have sufficient prospects of success
or if it cannot be expected that the judgment will clarify an
issue of constitutional law. The court may not decline to accept
for adjudication a case excluded from the jurisdiction of the
Administrative Court by Article 133."
2. Proceedings in the Administrative Court
19. By Article 130 para. 1 of the Federal Constitution, the
Administrative Court has jurisdiction to hear, inter alia, applications
alleging that an administrative decision is unlawful.
20. Section 39(1) of the Administrative Court Act provides that at
the end of the preliminary proceedings (Vorverfahren) the
Administrative Court must hold a hearing where the applicant makes a
request to that effect.
Section 39(2) reads as follows:
"Notwithstanding a party's application under subsection (1), the
Administrative Court may decide not to hold a hearing where
1. the proceedings must be stayed (section 33) or the
application dismissed (section 34);
2. the impugned decision must be quashed as unlawful because
the respondent authority lacked jurisdiction (section 42(2)(2));
3. the impugned decision must be quashed as unlawful on
account of a breach of procedural rules (section 42(2)(3));
4. the impugned decision must be quashed because its content
is unlawful according to the established case-law of the
Administrative Court;
5. neither the respondent authority nor any other party before
the court has filed pleadings in reply and the impugned decision
is to be quashed;
6. it is apparent to the court from the pleadings of the
parties to the proceedings before it and from the files relating
to the earlier administrative proceedings that a hearing is not
likely to clarify the case further."
Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958;
sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in
1982.
21. Section 41(1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any
unlawfulness deriving from the respondent authority's lack of
jurisdiction or from breaches of procedural rules
(section 42(2)(2) and (3)) ..., it must examine the impugned
decision on the basis of the facts found by the respondent
authority and with reference to the complaints put forward ...
If it considers that reasons which have not yet been notified to
one of the parties might be decisive for ruling on [one of these
complaints] ..., it must hear the parties on this point and
adjourn the proceedings if necessary."
22. Section 42(1) of the same Act states that, save as otherwise
provided, the Administrative Court must either dismiss an application
as ill-founded or quash the impugned decision.
By section 42(2):
"The Administrative Court shall quash the impugned decision if
it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which
are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important
point, or
(c) procedural rules have been disregarded, compliance with
which could have led to a different decision by the respondent
authority."
23. If the Administrative Court quashes the impugned decision, "the
administrative authorities [are] under a duty ... to take immediate
steps, using the legal means available to them, to bring about in the
specific case the legal situation which corresponds to the
Administrative Court's view of the law (Rechtsanschauung)"
(section 63(1)).
24. In a judgment of 14 October 1987 (G 181/86) the Constitutional
Court held:
"From the fact that it has been necessary to extend the
reservation in respect of Article 5 (art. 5) of the Convention
to cover the procedural safeguards of Article 6 (art. 6) of the
Convention, because of the connection between those two
provisions (art. 5, art. 6), it follows that, conversely, the
limited review (die (bloß) nachprüfende Kontrolle) carried out
by the Administrative Court or the Constitutional Court is
insufficient in respect of criminal penalties within the meaning
of the Convention that are not covered by the reservation."
3. The "independent administrative tribunals"
25. Pursuant to Article 129 of the Federal Constitution,
administrative courts called "independent administrative tribunals"
(Unabhängige Verwaltungssenate) were set up in the Länder with effect
from 1 January 1991. The functions of these tribunals include
determining both the factual and the legal issues arising in cases
concerning administrative offences (Verwaltungsübertretungen).
III. Austria's reservation in respect of Article 5 (art. 5) of the
Convention
26. The instrument of ratification of the Convention deposited by the
Austrian Government on 3 September 1958 contains, inter alia, a
reservation worded as follows:
"The provisions of Article 5 (art. 5) of the Convention shall be
so applied that there shall be no interference with the measures
for the deprivation of liberty prescribed in the laws on
administrative procedure, BGBl [Federal Official Gazette]
No. 172/1950, subject to review by the Administrative Court or
the Constitutional Court as provided for in the Austrian Federal
Constitution."
PROCEEDINGS BEFORE THE COMMISSION
27. Mr Pramstaller applied to the Commission on 18 May 1990. He
relied on Article 6 paras. 1, 2 and 3 (art. 6-1, art. 6-2, art. 6-3)
of the Convention, complaining (a) that he had been unable to bring his
case before a tribunal for the determination of a criminal charge
against him and (b) that he had not had a fair trial in that the burden
of proof had been on him, the accused.
28. On 10 May 1993 the Commission declared the application
(no. 16713/90) admissible in so far as it concerned the complaint that
the applicant had not been able to bring his case before a tribunal
within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.
In its report of 19 May 1994 (Article 31) (art. 31), it expressed
the unanimous opinion that there had been a violation of that provision
(art. 6-1). It further expressed the opinion that the lack of hearing
in the Administrative Court raised no separate issue. The full text
of the Commission's opinion and of the concurring opinion contained in
the report is reproduced as an annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 329-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
29. In their memorial the Government asked the Court to hold that
"Article 6 (art. 6) of the Convention is not applicable in the
present case; or alternatively, that Article 6 (art. 6) of the
Convention was not violated in the administrative criminal
proceedings underlying the application".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
30. The applicant complained of a violation of Article 6 para. 1
(art. 6-1) of the Convention, which provides:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal ..."
He had, he maintained, been denied the right to a "tribunal" and
to a hearing before such a body.
A. Applicability of Article 6 para. 1 (art. 6-1)
1. Whether there was a "criminal charge"
31. In Mr Pramstaller's submission, the administrative criminal
offence of which he was accused gave rise to a "criminal charge". This
was not disputed by the Government.
32. In order to determine whether an offence qualifies as "criminal"
for the purposes of the Convention, it is first necessary to ascertain
whether or not the provision (art. 6-1) defining the offence belongs,
in the legal system of the respondent State, to criminal law; next the
"very nature of the offence" and the degree of severity of the penalty
risked must be considered (see, among other authorities, the Öztürk v.
Germany judgment of 21 February 1984, Series A no. 73, p. 18, para. 50,
and the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210,
pp. 15-17, paras. 31-34).
33. Like the Commission, the Court notes that, although the offences
in issue and the procedures followed in the case fall within the
administrative sphere, they are nevertheless criminal in nature. This
is moreover reflected in the terminology employed. Thus Austrian law
refers to administrative offences (Verwaltungsstraftaten) and
administrative criminal procedure (Verwaltungsstrafverfahren). In
addition, the fine imposed on the applicant was accompanied by an order
for his committal to prison in the event of his defaulting on payment
(see paragraph 15 above).
These considerations are sufficient to establish that the offence
of which the applicant was accused may be classified as "criminal" for
the purposes of the Convention. It follows that Article 6 (art. 6)
applies.
2. Austria's reservation in respect of Article 5 (art. 5) of
the Convention
34. According to the Government, the procedure in question was
covered by Austria's reservation in respect of Article 5 (art. 5) of
the Convention. There could be no doubt that by the reference in that
reservation to "measures for the deprivation of liberty" the Austrian
Government had meant to include proceedings resulting in such measures.
Any other construction would not only lack coherence; it would also run
counter to the authorities' intention, which had been to remove from
the scope of the Convention the whole administrative system, including
the substantive and procedural provisions of administrative criminal
law. That would be so even in a case where, as in this instance, the
accused was merely fined, in so far as default on payment of that fine
would entail committal to prison.
Admittedly, the Tyrol Building Regulations Act 1978 was not one
of the four laws designated in the reservation. However, one of those
laws, the Administrative Criminal Justice Act, stated in section 10
that, except as otherwise provided, the general administrative laws
were to determine the nature and severity of sanctions. It mattered
little in this respect that section 53 of the Tyrol Building
Regulations Act, which was applied in the present case, had been
enacted after the reservation had been deposited, because that
provision merely clarified the substance of an existing obligation laid
down in the Tyrol Building Regulations Act 1901.
35. The applicant argued that the reservation could not apply in the
present case. In the first place, it failed to satisfy the
requirements of Article 64 (art. 64) of the Convention, which provides:
"1. Any State may, when signing [the] Convention or when
depositing its instrument of ratification, make a reservation in
respect of any particular provision of the Convention to the
extent that any law then in force in its territory is not in
conformity with the provision. Reservations of a general
character shall not be permitted under this Article (art. 64).
2. Any reservation made under this Article (art. 64) shall
contain a brief statement of the law concerned."
Secondly, on a strict construction, its wording precluded
extending its scope to the procedural sphere, which was in issue here.
36. The Court points out that in the Chorherr v. Austria judgment of
25 August 1993 it held that Austria's reservation in respect of
Article 5 (art. 5) of the Convention was compatible with Article 64
(art. 64) (Series A no. 266-B, p. 35, para. 21). It therefore remains
only to ascertain whether the provisions applied (art. 5, art. 64) in
the present case are covered by that reservation. They differ in
certain essential respects from those in issue in the Chorherr case.
The Court notes that Mr Pramstaller based his complaints on
Article 6 (art. 6) of the Convention, whereas the wording of the
reservation invoked by the Government mentions only Article 5 (art. 5)
and makes express reference solely to measures for the deprivation of
liberty. Moreover, the reservation only comes into play where both
substantive and procedural provisions of one or more of the four
specific laws indicated in it have been applied. Here, however, the
substantive provisions of a different Act, the Tyrol Building
Regulations Act 1978, were applied.
These considerations are a sufficient basis for concluding that
the reservation in question does not apply in the instant case.
B. Compliance with Article 6 para. 1 (art. 6-1)
1. Access to a tribunal
37. Mr Pramstaller contended that none of the bodies that had dealt
with his case in the proceedings in issue could be regarded as a
"tribunal" within the meaning of Article 6 para. 1 (art. 6-1). This
was true not only of the administrative authorities, but also of the
Constitutional Court, whose review was confined to constitutional
issues, and above all of the Administrative Court. The latter was
bound by the administrative authorities' findings of fact, except where
there was a procedural defect within the meaning of section 42(2),
sub-paragraph 3, of the Administrative Court Act (see paragraph 22
above). It was therefore not empowered to take evidence itself, or to
establish the facts, or to take cognisance of new matters. Moreover,
in the event of its quashing an administrative measure, it was not
entitled to substitute its own decision for that of the authority
concerned, but had always to remit the case to that authority. In
short, its review was confined exclusively to questions of law and
therefore could not be regarded as equivalent to that of a body with
full jurisdiction.
38. The Government contested this view, whereas the Commission
accepted it.
39. The Court reiterates that decisions taken by administrative
authorities which do not themselves satisfy the requirements of
Article 6 para. 1 (art. 6-1) of the Convention - as is the case in this
instance with the district authority and the regional government (see
paragraph 11 above) - must be subject to subsequent control by a
"judicial body that has full jurisdiction" (see, inter alia and mutatis
mutandis, the following judgments: Albert and Le Compte v. Belgium of
10 February 1983, Series A no. 58, p. 16, para. 29; Öztürk, previously
cited, pp. 21-22, para. 56; and Fischer v. Austria of 26 April 1995,
Series A no. 312, p. 17, para. 28).
40. The Constitutional Court is not such a body. In the present case
it could look at the impugned proceedings only from the point of view
of their conformity with the Constitution, and this did not enable it
to examine all the relevant facts. It accordingly lacked the powers
required under Article 6 para. 1 (art. 6-1).
41. The powers of the Administrative Court must be assessed in the
light of the fact that the court in this case was sitting in
proceedings that were of a criminal nature for the purposes of the
Convention. It follows that when the compatibility of those powers
with Article 6 para. 1 (art. 6-1) is being gauged, regard must be had
to the complaints raised in that court by the applicant as well as to
the defining characteristics of a "judicial body that has full
jurisdiction". These include the power to quash in all respects, on
questions of fact and law, the decision of the body below. As the
Administrative Court lacks that power, it cannot be regarded as a
"tribunal" within the meaning of the Convention. Moreover, in a
judgment of 14 October 1987 the Constitutional Court held that in
respect of criminal penalties not covered by the reservation in respect
of Article 5 (art. 5), the review carried out by the Administrative
Court or the Constitutional Court was insufficient (see paragraph 24
above).
42. It follows that the applicant did not have access to a
"tribunal". There has accordingly been a violation of Article 6
para. 1 (art. 6-1) on this point.
2. Lack of a hearing
43. Mr Pramstaller further criticised the Administrative Court for
failing to hold a hearing.
44. Having regard to the conclusion in paragraph 42 above, the Court
does not consider it necessary to examine this complaint.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
45. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
46. The Delegate of the Commission left the matter of just
satisfaction to the discretion of the Court.
A. Damage
47. In respect of pecuniary damage, the applicant claimed repayment
of the fine imposed on him, that is to say ATS 60,000. He also claimed
ATS 20,000 for non-pecuniary damage.
48. The Government contended that the Court had no jurisdiction to
quash convictions pronounced by national courts or to order repayment
of fines. Moreover, it could not, in awarding reparation, speculate
as to what the outcome of the proceedings would have been if the
applicant had had access to a tribunal within the meaning of
Article 6 para. 1 (art. 6-1) of the Convention.
49. The Court agrees. It cannot speculate as to what the outcome of
the proceedings in issue might have been if the violation of the
Convention had not occurred (see the Hauschildt v. Denmark judgment of
24 May 1989, Series A no. 154, p. 24, para. 57; the Saïdi v. France
judgment of 20 September 1993, Series A no. 261-C, p. 58, para. 49; and
the Fischer judgment, previously cited, p. 21, para. 47). It considers
that, in the circumstances of the case, the present judgment affords
the applicant sufficient reparation.
B. Costs and expenses
50. In addition, Mr Pramstaller claimed the sum of ATS 203,763 for
the costs and expenses incurred in the proceedings first in the
domestic courts and then before the Convention institutions.
51. The Government expressed the view that only the proceedings in
the Administrative Court - which had given rise to the alleged
violations - and those in Strasbourg could be taken into account. They
also contested the quantum of the costs, but they were prepared to
reimburse a total of ATS 300,000 in respect of the Umlauft,
Pramstaller, Palaoro and Pfarrmeier cases, the applicants in all these
cases having been represented by the same lawyer.
52. Making an assessment on an equitable basis, having regard to the
information in its possession and its case-law, the Court awards
Mr Pramstaller ATS 100,000.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 (art. 6-1) of the Convention applies
in this case;
2. Holds that there has been a violation of that Article (art. 6-1)
as regards access to a court;
3. Holds that it is not necessary to examine the complaint based on
the lack of a hearing in the Administrative Court;
4. Holds that the respondent State is to pay the applicant, within
three months, 100,000 (one hundred thousand) Austrian schillings
in respect of costs and expenses;
5. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 23 October 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the separate
opinion of Mr Martens is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
SEPARATE OPINION OF JUDGE MARTENS
1. I concur in the Court's finding that Article 6 (art. 6) has been
violated, but cannot agree with its reasoning.
2. My objections concern paragraph 41 of the judgment, which starts
with the statement:
"The powers of the Administrative Court must be assessed in the
light of the fact that the court in this case was sitting in
proceedings that were of a criminal nature for the purposes of
the Convention."
3. I will refrain from a structural criticism of this paragraph.
I cannot help noting, however, that here again the Court finds it
necessary to remark that when it is being assessed whether or not the
Administrative Court is to be considered a court that affords the
safeguards of Article 6 para. 1 (art. 6-1), "regard must be had to the
complaints raised in that court". One looks in vain, however, for
evidence of this methodological principle being put into practice:
there does not follow any analysis of what the applicant argued before
the Administrative Court, nor is there any trace of "regard" to these
arguments in the assessment of the adequacy of the Administrative
Court's jurisdiction. For the rest, I refer to the methodological
objections to this "test" that I raised in paragraph 18 of my separate
opinion in the case of Fischer v. Austria (judgment of 26 April 1995,
Series A no. 312).
4. My main objection to this paragraph is the following. In the
three civil cases discussed in my aforementioned separate opinion, the
Court found that the Austrian Administrative Court met the requirements
of a tribunal within the meaning of Article 6 para. 1 (art. 6-1). In
the paragraph under discussion, however, it reaches the opposite
conclusion, stressing that in this case the Administrative Court was
sitting in proceedings of a criminal nature. One cannot but infer that
the Court is of the opinion that in a case which under national law is
an "administrative" one but under the Convention is a "criminal" one,
the safeguards afforded by the tribunal that is to review the final
decision of the administrative bodies differ from those required in a
case that under national law is an "administrative" one but under the
Convention is a "civil" one. I cannot see any justification for such
differentiation, which does not find support in the wording or the
purpose of Article 6 (art. 6) (1). Nor does the Court offer one, its
decision on this crucial point being unsupported by any argument. This
is the more to be regretted as this differentiation is contrary to the
Court's case-law (2).
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1. I refer in this context to footnote 62 of my aforementioned
separate opinion in the case of Fischer v. Austria.
2. See, inter alia, the Le Compte, Van Leuven and De Meyere v. Belgium
judgment of 23 June 1981, Series A no. 43, pp. 23-24, para. 53; the
Albert and Le Compte v. Belgium judgment of 10 February 1983,
Series A no. 58, p. 17, para. 30; see also the Diennet v. France
judgment of 26 September 1995, Series A no. 325-A, pp. 13-14, para. 28.
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