DEURING v. AUSTRIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
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. 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. 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.”