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URL: http://www.bailii.org/eu/cases/ECHR/2008/1841.html
Cite as: [2008] ECHR 1841

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FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15746/06
by Eduard DEURING
against Austria

The European Court of Human Rights (First Section), sitting on 11 December 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 3 April 2006,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Eduard Deuring, is an Austrian national living in Hörbranz (Austria). He was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was, at the relevant time, the owner of K. Deuring & Co, a company producing starch from corn and sugar. Due to ongoing ecological problems with effluents emitted by his company, he installed an in-house sewerage plant.

On 30 June 1998 the Bregenz District Administrative Authority granted an operating permit.

On 21 July 1999 it requested the applicant to comment on charges concerning non-compliance with environmental regulations as set out in the operating permit.

On 31 August 1999 the applicant filed his comments. He submitted that the reason for temporarily exceeding environmental limits was the fact that the sewerage system was still in its early stages. As proof he requested that H.S., the Regional Governor (Landeshauptmann), H.G., a Member of the Regional Government (Landesrat), and B.G., the head of the competent Administrative Authority (Bezirkshauptmann) as well as D.D. and K.D. be summoned.

On 22 November 2000 the Bregenz District Administrative Authority convicted the applicant under Section 366 (1) of the Trade Act (Gewerbeordnung) and issued a fine in the amount of 16, 500 Austrian schillings (ATS). It found him guilty of having repeatedly and continuously overstretched the capacity of the sewerage plant at issue, by exceeding the maximum admissible amount of inflow as set out in the operating permit.

On 12 December 2000 the applicant lodged an appeal.

Having held an oral hearing in which it had heard K. and S., two experts, the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat), on 11 May 2001, discontinued proceedings. It found that the pollution was due to technical problems which were outside the applicant's sphere.

On 16 January 2002 the Vorarlberg Regional Governor lodged a complaint with the Administrative Court (Amtsbeschwerde). The applicant did not comment on the Governor's appeal.

By a decision of 25 February 2004 the Administrative Court quashed the decision and remitted the case to the IAP. It found that the significant breach of the inflow limits constituted sufficient reason to believe that the actual deviation from the operating licence's limits was apt to constitute an environmental risk which the regulations under the Trade Act aimed to keep to a minimum. This was tantamount to an unlawful change to the operation of the plant. Following the Administrative Court's decision the applicant did not lodge another request for taking of evidence.

Thereupon the IAP, on 17 May 2004, partially allowed the applicant's appeal. While, following the legal opinion of the Administrative Court, it upheld the applicant's conviction by the District Administrative Authority, it reduced the fine imposed on the applicant to 600 Euros (EUR) (ATS 8,256). As a reason for this reduction the IAP, referring explicitly to Article 6 of the Convention, found that the proceedings had lasted an unreasonably long time.

On 7 July 2004 the applicant lodged a complaint with the Constitutional Court.

By a decision of 19 November 2004 the Constitutional Court refused to deal with the case for lack of prospect of success and, upon the applicant's request, remitted the case to the Administrative Court.

On 4 July 2005 the latter dismissed the applicant's complaint, the judgment being served on the applicant's counsel on 3 October 2005.

B. Relevant domestic law

Section 366 § 1 of the Trade Act, in so far as relevant, reads as follows:

“The following constitutes an administrative criminal offence, subject to a maximum fine of EUR 3,600:

(...)

(3) Any change to an existing operation of a plant for which an operating permit had been granted or operation thereof.”

COMPLAINTS

The applicant complained under Article 6 of the Convention that the length of proceedings was unreasonable.

He complained further under Article 6 that the Austrian courts had failed to examine five persons as witnesses, even though he had repeatedly requested that they be summoned.

Under Article 6 the applicant also complained that no prosecuting authority participated in the proceedings before the Independent Administrative Panel and that therefore the member of the Independent Administrative Panel acted both as judge and prosecutor.

Lastly, the applicant complained under Article 7 of the Convention that an excessive inflow to the sewerage plant at issue causing poor effluent quality was interpreted as an illegal change to the plant. Therefore the Administrative Court's decision was arbitrary and unforeseeable.

THE LAW

The applicant complained that the administrative criminal proceedings instituted against him under the Trade Act have lasted an unreasonably long time. He relies on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government submitted in the first place that in their view the applicant has not, most probably, complied with the six-month time-limit. While the last domestic decision taken by the Administrative Court on 14 September 2005 was served on the applicant's lawyer on 3 October 2005, the application was only received by the Court's registry on 7 April 2006, which is after the expiry of the six-month time-limit.

The Government submitted further that the applicant could no longer claim to be a victim of an alleged violation of the Convention as regards his complaint about the length of the proceedings, because the IAP, in its decision of 17 May 2004, considerably reduced the sentence imposed on the applicant and acknowledged that the reasonable time requirement had been breached, . The Government also maintained that after this decision of the Independent Administrative Panel the proceedings were terminated without any delay.

This is disputed by the applicant. As regards the Government's objection that he had not complied with the six-month time-limit, he submitted that the application form was dated 2 February 2006 and was sent off by his lawyer on 3 April 2006 by registered mail. Thus the time-limit had been complied with.

As regards the Government's further objection that he was no longer a victim of an alleged breach of the Convention, the applicant submitted that before deciding again on his appeal the IAP should have held an oral hearing. In such a hearing he would have explained that he had sold the factory in the meantime, an event which fundamentally changed his responsibility and his financial means which should have brought about a much more significant reduction of the fine than the one made by the IAP, with express reference to the length of the proceedings. Thus, he should still be considered a victim of a breach of the Convention. As regards the merits of the complaint the applicant submitted that there has been a breach of Article 6 as the Austrian authorities have clearly not complied with the reasonable time requirement under Article 6 § 1 of the Convention.

The Court need not determine whether the applicant has actually complied with the six-month time-limit because, even assuming that this is so, the application is, in any event, inadmissible for the following reasons.

As regards the question whether the applicant may still claim to be a victim the Court reiterates that the mitigation of a sentence on the ground of excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged sufficiently clearly a failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Karg v. Austria (dec.), no. 29749/04, ECHR 6 May 2008; Beck v. Norway, judgment of 26 June 2001, § 27; and Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66).

Applying these principles in the present case, the Court notes in the first place that the IAP, referring to Article 6 § 1 of the Convention, expressly held that the proceedings had exceeded a reasonable time. Further, the Court is satisfied that the applicant was afforded adequate redress for the alleged violation. On this point it should be recalled that the fine was reduced by approximately half.

Against this background, the Court finds that the applicant was afforded adequate redress by the national authorities and can thus no longer claim to be a victim. This part of the application is accordingly inadmissible and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicant complained further under Article 6 about the failure of the Austrian courts to examine five persons as witnesses, even though he had repeatedly requested that they be summoned.

However, the Court observes that the applicant only made a request for these witnesses to be summoned in the first set of appeal proceedings, in the course of which the IAP granted his appeal. The applicant left this point uncontested when the Government lodged a complaint with the Administrative Court. The Administrative Court quashed the IAP's decision and remitted the case to the IAP. In the second round of proceedings however the applicant failed to lodge another request for evidence. Since he failed to do so the Court concludes that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court reiterates that if an appeal is lodged with an independent administrative panel against a penal order, the authority which issued the impugned decision assumes the function of the prosecuting authority in appeal proceedings before the panel. Furthermore, the absence of a representative of that authority from the hearing does not give rise to objectively justified fears as regards impartiality of the panel (see Weh and Weh v. Austria (dec.), no. 38544/97, 4 July 2002).

Therefore, the Court concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Lastly, the applicant complained under Article 7 of the Convention that an excessive inflow to the sewerage plant at issue causing poor effluent quality was interpreted as an illegal change to the operation of the plant which rendered the Administrative Court's decision arbitrary and unforeseeable.

Article 7 of the Convention, in so far as relevant, reads as follows:

“1. 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. ...”

The applicant submitted that the non-compliance with environmental standards (disregarding the limits for polluted water) was interpreted as a change to the operation of the plant without a corresponding amendment to the operating licence, thus to operating a plant without a permit.

The Court reiterates, however, that Article 7 cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided the result is consistent with the essence of the offence and could be reasonably foreseen (see, for instance, S.W. v. the United Kingdom, judgment of 22 November 1995, Series A no. 335 B, § 36).

The Court finds that in the present case the application of Section 366 (1) of the Trade Act to the applicant's case (operation of a business contrary to the environmental standards as set out in the operating licence), as explained by the Administrative Court with reference to its previous case-law, must still be considered to fall within the acceptable limits of interpretation of law. Thus, there is no appearance of a violation of Article 7 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President