CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1994

.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. 21213/93                       by T.H.                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              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 27 August 1992 by T.H against Austria and registered on 21 January 1993 under file No. 21213/93;         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 citizen born in 1954.   She lives in Tribuswinkel and is represented before the Commission by Mr. E. Proksch, a lawyer practising in Vienna.   This is her second application to the Commission.   The first application, No. 19116/91, which also related to the imposition of administrative fines for failure to ensure compliance with the Working Hours Act 1969 (Arbeitszeitgesetz), was declared inadmissible on 13 October 1993.   The facts of the case as submitted by the applicant's representative may be summarised as follows.         On 4 January 1991, the Baden District Authority (Bezirkshauptmannschaft) issued 6 penal orders (Straferkenntnisse) against the applicant, fining her a total of AS 38,500 with a total of 42 days' detention in default, for permitting excessive driving times contrary to the Working Hours Act.   Two further penal orders were issued on 7 January 1991, fining the applicant a total of AS 15,500 with 16 days' detention in default, and a ninth penal order was issued on 8 January 1991, fining the applicant AS 2,500 with 72 hours' detention in default The convictions were variously under Sections 12, 14 and 16 of the Working Hours Act.   The applicant appealed to the Lower Austrian Regional Government (Landesregierung).         On 18 March 1991 the Regional Government accepted the applicant's appeal to the extent that it related to one of the penal orders issued on 4 January, and reduced the fine by AS 1,000 and the period of detention in default by 24 hours.   It dismissed the remainder of the appeal.   The applicant made a constitutional complaint to the Constitutional Court (Verfassungsgerichtshof) in which she alleged, inter alia, violation of the principle of "equality".         The Constitutional Court declined to deal with the complaint on 11 June 1991.   It found that the constitutional matters had no adequate prospect of success, and that the case was not excluded from the jurisdiction of the Administrative Court (Verwaltungsgerichtshof).         The Administrative Court dismissed the applicant's administrative complaint on 20 July 1992.   In connection with a complaint that the applicant had not, herself, driven in contravention of the Working Hours Act, the Administrative Court, referring to its case-law (decision of 9.6.88, Zl. 88/08/0123), pointed out that Section 28 (1) does not require "active behaviour" (tätiges Verhalten).   It noted that there was no dispute as to the times driven.   The Court, recalling that a person would only be exonerated under administrative criminal law where he could show that permitted times had not been observed notwithstanding an appropriate control system and without his knowledge or consent, did not accept that the applicant had established an adequate system.   The Administrative Court declined to hold the hearing which the applicant had requested.   Relevant domestic law         According to Section 1 (1) of the Working Hours Act, the Act applies to employees over the age of 18.   Section 1 (2) excludes a series of types of employees from the ambit of the Act, including employees who have a contract with local or other regional authorities (Gebietskörperschaften), certain foundations, and other specified categories.         Section 12 (1) of the Working Hours Act provides that an uninterrupted rest period of 11 hours is to be granted after a day's work.   Section 14 (2) provides, so far as relevant, that the maximum driving time between two rest periods must not exceed eight hours, and the maximum driving time per week is 48 hours.   Section 16 (2) provides that the maximum time "on the road" (driving time and rest periods together) is 12 hours.         Section 28 (1) of the Working Hours Act provides that employers who contravene the provisions of the Act shall be fined between AS 300 and AS 6,000, or sentenced to three days' to six weeks' detention. Section 28 (2) states that Section 28 (1) does not apply when the employer is a local or other regional authority.   COMPLAINTS         The applicant alleges a violation of Article 6 para. 1 of the Convention in that her case was not heard by an independent and impartial tribunal.         She also alleges a violation of Article 1 of Protocol No. 1 to the Convention, taken alone and, on the ground that the regulations on working times do not apply to the public sector, in conjunction with Article 14 of the Convention.   She also alleges a violation of Article 6 para. 2 of the Convention in that she was required to prove her innocence, rather than the State being required to prove her guilt.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 27 August 1992 and registered on 21 January 1993.         On 11 May 1994 the Commission (First Chamber) decided to bring the application to the notice of the respondent Government without requesting observations.       THE LAW   1.     The applicant alleges violation of Article 6 para. 2 (Art. 6-2) of the Convention.   In particular, she considers that she was required to prove her innocence, rather than the State being required to prove her guilt, and that the provisions of the Working Hours Act in any event do not refer to employers, but merely to the times which are to be worked.   She points out that there is no question in the case of her having personally contravened the provisions of the Working Hours Act, and states that it is unreasonable then to assume that she is guilty: she regards this as absolute liability.         The Commission recalls that it has already dealt with an application from the applicant concerning contraventions of the Working Hours Act, in Application No. 19116/91.   In that case the Commission found as follows:       "The Commission notes that the applicant, in her position as       employer, was fined under the Working Hours Act on the grounds       that one of the employees had exceeded the maximum of working       hours on several occasions.   The authorities found that she had       failed to show that there had been an effective control in the       company as to compliance with the Working Hours Act.         The Commission recalls that Article 6 para. 2 (Art. 6-2) of the       Convention requires States to confine presumptions of fact or of       law within reasonable limits which take into account the       importance of what is at stake and maintain the rights of the       defence (cf., Eur. Court H.R., Salabiaku judgment of       7 October 1988, Series A no. 141, p. 16, para. 28).         The Commission considers that the applicant, as an employer, was       not held responsible for the offences under the Working Hours       Act, irrespective of personal guilt, but taking into account the       fact that there had been a lack of sufficient control, which made       the offences imputable to her on account of personal negligence.         The Commission considers that, in the circumstances of the       present case, there is no appearance that the application of the       Working Time Act having regard to Article 5 para. 1 (Art. 5-1)       of the Code of Administrative Offences conflicted with the       presumption of innocence, as guaranteed by Article 6 para. 2       (Art. 6-2) of the Convention".         The Commission adopts its reasoning in its previous case in the present case.         To the extent that the applicant complains that she was held personally liable for an offence which she did not commit, the Commission considers that such a complaint would fall to be considered under Article 7 (Art. 7) of the Convention, rather than under Article 6 para. 2 (Art. 6-2).   Article 7 (Art. 7) of the Convention provides 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 Commission considers that where a person has been accused of an offence, and the facts alleged do not correspond with the offence, the effect of a conviction could be to find the person guilty of, effectively, an "offence" which was not known to national law at the time. However, in the present case, that the applicant was well aware that the liability under Section 28 (1) was hers is apparent from the wording of that provision and from the fact that she had already been convicted under it.   That no "active behaviour" is required of the employer for his conviction of an offence under Sections 14 and 16 is less apparent from the wording of that offence, but again the applicant had previously been convicted of the same offences, and the Administrative Court referred, in its decision in the present case, to its case-law from 1988.   Section 12 refers to a rest period being "granted", and the only person in a position to "grant" such a rest period is the employer.   Moreover, the Working Hours Act in any event provides only for employers' liability.         There is thus no indication in the present case that the applicant was convicted, even in effect, of an offence which was not known to domestic law at the time it was committed.         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 alleges violation of Article 1 of Protocol No. 1 (P1-1) to the Convention, taken alone and in connection with Article 14 (P1-1+Art. 14) of the Convention.   These provisions provide 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 enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       such as sex, race, colour, language, religion, political or other       opinion, national or social origin, association with a national       minority, property, birth or other status."         In the light of its above findings as to the compatibility with Articles 6 para. 2 and 7 (Art. 6-2, 7) of the Convention of Section 28 (1) of the Working Hours Act, the Commission finds that the fines imposed on the applicant were the normal operation of the criminal administrative law, and cannot be seen to be arbitrary within the meaning of Article 1 of Protocol No. 1 (P1-1).         In connection with Article 14 (Art. 14) of the Convention, the applicant considers it discriminatory for Section 28 (1) to apply to private sector employers but not, because of the provisions of Section 28 (2), to public sector employers.         The Commission first notes in this respect that it is for the legislator to decide in first instance to which categories of persons legislation should apply, but that, to the extent that substantive provisions of the Convention are at issue, that decision must not be taken in a way which will give rise to discrimination contrary to Article 14 (Art. 14) of the Convention.         The mere fact that the legislation at issue in the present case is not applicable to the public sector does not mean that it is discriminatory within the meaning of Article 14 (Art. 14).   Even assuming that there was a difference in treatment in the present case, the Commission considers that the application of the legislation at issue to the private sector alone is rather based on the fact the social mischief which the legislation is designed to address is the imposition of excessively long working hours on employees, and this social mischief is more prevalent in the private sector, where commercial considerations tend to predominate, than in the public sector.         Accordingly, the Commission finds that any difference in treatment between the applicant on the basis that she was involved in the private sector rather than the public sector was not based on grounds which are prohibited by Article 14 (Art. 14) of the Convention.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant also alleges violation of Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission has already given notice of the application to the respondent Government but has not requested the parties to submit their observations.   The Commission has now adopted its Report in cases similar to the present one (cf., for example, No. 15523/90, Schmautzer v. Austria, Comm. Rep. 19.5.94), and finds it appropriate now to resume the proceedings.         For these reasons, the Commission         unanimously       DECIDES TO ADJOURN its examination of the complaints under       Article 6 para. 1 (Art. 6-1) of the Convention;         by a majority       DECLARES INADMISSIBLE the complaint relating to the presumption       of innocence, and         unanimously       DECLARES INADMISSIBLE the remainder of the application.     Secretary to the First Chamber     President of the First Chamber           (M.F. BUQUICCHIO)                    (A. WEITZEL)