EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 27783/95

R. T.

against

Austria

REPORT OF THE COMMISSION

(adopted on 8 September 1999)

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. 16-58)              3

A. The particular circumstances of the case

(paras. 16-54)              3

B. Relevant domestic law

(paras.  55-58) 7

III. OPINION OF THE COMMISSION

(paras. 59-92)              8

A. Complaints declared admissible

(para. 59) 8

B. Points at issue

(para. 60) 8

C. As to Article 6 § 1 of the Convention relating to the proceedings                                        between

the applicant and a bank

(paras. 61-70)              8

CONCLUSION

(para. 71) 10

D. As to Article 6 §§ 1 and 3 of the Convention relating to the proceedings concerning the imposition of a fine for abuse of process on the              applicant

(paras. 72-89)              10

a.    Applicability of Article 6 of the Convention

       (paras. 74-85) 10

b.     Compliance with Article 6 §§ 1 and 3 of the Convention

       (paras. 86-89) 12

CONCLUSION

(para. 90) 13

E. Recapitulation

(paras. 91-92)              13

DISSENTING OPINION OF MR. K. HERNDL JOINED BY

MM. M. PELLONPÄÄ, B. MARXER AND R. NICOLINI 14

APPENDIX: DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 15

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, born in 1929 and resident in Vienna.

3.  The application is directed against Austria.  The respondent Government were represented by their Agent, Mr Franz Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

4.  The case concerns the applicant’s complaints about the length of civil proceedings between him and a bank and about a lack of defence rights in proceedings leading to the imposition of a fine for abuse of process. The applicant invokes Article 6 §§ 1 and 3 of the Convention.

B. The proceedings

5.  The application was introduced on 16 May 1995 and registered on 4 July 1995.

6.  On 10 April 1997 the Commission (First Chamber) decided, pursuant to Rule 48 § 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 complaints about the length of civil proceedings between him and a bank, about the issue of access to court in these proceedings and about a lack of defence rights in the proceedings leading to the imposition of a fine for the abuse of process.

7.  The Government's observations were submitted on 11 July 1997 after an extension of the time-limit fixed for this purpose.  The applicant replied on 28 September 1997.

8.  On 16 April 1998 the Commission declared admissible the applicant's complaints under Article 6 of the Convention about the length of civil proceedings between him and a bank and his complaint about a lack of defence rights in proceedings leading to the imposition of a fine for abuse of process. It declared inadmissible the remainder of the application.

9.  The text of the Commission's decision on admissibility was sent to the parties on 24 April 1998 and they were invited to submit such further information or observations on the merits as they wished.  The parties did not submit further observations.

10.  After declaring the case admissible, the Commission, acting in accordance with former (1) Article 28 § 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'

-------------------------

(1) The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

reaction, the Commission now finds that there is no basis on which such a settlement can be effected. Pursuant to the entry into force of Protocol No 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in Plenary.

C. The present Report

11.  The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12.  The text of this Report was adopted on 8 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.

13.  The purpose of the Report, pursuant to former 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 decision on the admissibility of the application is 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

A.    The particular circumstances of the case

16.  On 27 June 1988 the C-Bank filed an action for payment of Austrian schillings (ATS) 8,497 against the applicant on the ground that, following termination of their contractual relationship, the applicant's current account showed a debit balance in the above amount.

17.  On 18 July 1988 the Hietzing District Court ( Bezirksgericht ), in summary proceedings, issued an order for payment of the above debt ( Zahlungsbefehl ) against the applicant. The applicant, represented by Mr K., filed an objection ( Einspruch ) which the District Court received on 5 August 1988.

18.  On 15 November 1988 judge D. at the District Court held a hearing.

19.  On 30 November 1988 the District Court received notice that Mr K. no longer represented the applicant. On 2 February 1989 a hearing which had been scheduled for 9 February 1989 was cancelled. The Government submit that this was due to the fact that the applicant's representative had withdrawn from the case, while the applicant submits that the court was prevented from holding the hearing. Subsequently, 22 December 1989 was set as a date for the next hearing.

20.  On 13 December 1989 the applicant, represented by Mrs O., filed a counterclaim ( Widerklage ) requesting compensation of a total amount of ATS 89,543 for loss of interest which had allegedly been caused by negligent conduct of the bank. He submitted in particular that he had acted as representative for a certain E., who had taken a loan with the C-Bank, for which he had mortgaged his property. To avoid the forced sale of the said property he, the applicant, had taken a loan with the S-Bank, part of which he used to cover E.'s debt. The C-Bank, however, had informed him that a permit of the Austrian National Bank ( Nationalbank ) was necessary for the transfer. The sum had meanwhile been deposited in a fiduciary account of a lawyer, who had assigned his rights as regards interest to the applicant. The applicant alleged that the C-Bank had failed to request the permit speedily thereby causing the interest on E.'s debt to increase, which then had to be covered by the interest accrued on the fiduciary account. Further, he requested a declaratory decision to the effect that a guarantee he had given to the C-Bank in relation to E.'s debt was null and void.

21.  On 21 December 1989, the bank filed preparatory submissions ( vorbereitender Schriftsatz ) in reply. It denied in particular that there was a link between the two claims at issue.

22.  On 22 December 1989 judge G. at the District Court held a hearing.

23.  On 30 March, 24 April and 25 June 1990 judge P. at the District Court held hearings. The parties presented documentary evidence and the court heard N. and W., two employees of the C-Bank and K., the lawyer involved in the case, as witnesses. At the last of these hearings the Court decided to join the proceedings concerning the bank's claim and the applicant's counterclaim. It also noted that the C-Bank had extended their claim, requesting additional payment of ATS 14,180 for which the applicant was allegedly liable on account of his guarantee for the debt of E.

24.  On 29 June 1990 the District Court decided to adjourn the proceedings until the judgment in another set of proceedings between the applicant and E., which was pending before the Vienna Regional Civil Court ( Landesgericht ), became final. The applicant filed a request for reinstatement and an appeal against the above decision. His request for reinstatement was granted.

25.  On 16 October 1990 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision to adjourn on the ground that, according to the relevant procedural rules, it had to be taken in the course of an oral hearing.

26.  On 16 January 1991 Mrs O. informed the District Court that she no longer represented the applicant. The applicant was subsequently represented by Mr R.

27.  On 11 April 1991 and 10 October 1991 judge Ed. at the District Court held further hearings. The applicant was heard as a party and W. was again heard as a witness. At the latter hearing the Court again decided to adjourn the proceedings until the judgment of the Vienna Regional Civil Court in the proceedings between the applicant and E. became final.

28.  On 4 February 1992 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision and ordered the District Court to continue the proceedings. It found that the District Court had wrongly assumed that the proceedings between the applicant and E. would resolve a preliminary incidental question ( Vorfrage ). The District Court received the Regional Court's decision on 10 March 1992.

29.  On 1 September 1992 the applicant extended his counterclaim to a total amount of ATS 213,440.

30.  On 6 October 1992 judge Ed. at the District Court, upon the claimant's request, adjourned a hearing which had been scheduled for 15 October 1992 to 26 January 1993.

31.  On 2 November 1992 the applicant informed the District Court that he had revoked Mr R.'s power of attorney.

32.  On 18 January 1993 judge Ed. made a request to be replaced as she considered herself to be biased  on account of accusations which the applicant had made against her. On the same day the President of the District Court granted her request and assigned the case to judge A. A hearing which had been scheduled for 26 January 1993 was cancelled. The applicant was at that time represented by Mrs W.

33.  On 23 February 1993 the District Court received notice that Mrs W. no longer represented the applicant.

34.  The next hearing was scheduled for 21 June 1993 but had to be postponed to 12 July 1993 upon the claimant's request.

35.  On 17 June 1993 the applicant requested legal aid. Upon the District Court's request he supplemented his application on 1 July 1993.

36.  On 5 July 1993 the District Court dismissed the applicant's request for legal aid.

37.  On 9 July 1993 Mr H., who had been appointed as the applicant's representative by the Lawyer's Chamber under section 10 § 3 of the Lawyer's Act ( Rechtsanwaltsordnung ), (applicable in a case where a litigant who is not indigent is unable to find a lawyer willing to represent him), requested that the hearing scheduled for 12 July 1993 be postponed. The applicant claims that he had only requested the appointment of counsel for this specific request, while the Lawyer's Chamber appointed Mr H. to represent him in the further proceedings.

38.  On 16 November 1993 the District Court upon the request of Mr H. postponed the next hearing which had been scheduled for 3 December 1993 to 21 January 1994.

39.  On 18 January 1994 Mr H. requested that the hearing again be postponed as he had been unable to obtain the necessary information from the applicant. The District Court dismissed the request. The applicant submits that he was unaware that Mr H. acted as his counsel and that the latter had tried to contact him at a wrong address. He further claims that the summons to appear personally at the hearing of 21 January 1994 was not correctly served on him.

40.  On 21 January 1994 judge A. at the District Court held a further hearing and admitted the extension of the applicant's counterclaim.

41.  On 25 February 1994 the District Court received notice that Mr H. no longer represented the applicant.

42.  On 8 April 1994 the applicant requested legal aid. He submitted a declaration of means ( Vermögensbekenntnis ). In Section II "Housing conditions", ( Wohnverhältnisse ) he stated that he had to pay a monthly rent of ATS 1,234 for his apartment. In Section III "Income" ( Einkommen ), he stated that he had no income. According to Section IV "Assets" ( Vermögen ) he had no property, no business, ATS 347 in cash, no savings accounts, a current account with a debit balance, and no other assets. According to Section V "Debts" ( Schulden ) he had debts with the S-Bank of ATS 850,000 and ATS 495,000 with the Sch . limited company. Finally, under Section VI "Maintenance" ( Unterhaltsansprüche und - pflichten ) he declared that he did not have any maintenance obligations or claims. The standard form for this declaration contained a warning that, in case legal aid was obtained improperly by making false or incomplete statements, a fine for abuse of process ( Mutwillensstrafe ) could be imposed.

43.  In his accompanying submissions the applicant stated inter alia that until September 1993 he had received ATS 15,000 per month from the Sch . Company. As of 1 October 1993 he was without income and was moreover obliged to pay back any payments he had received from the said company. His old-age pension was only due as of 1 September 1994. Further the applicant stated that he had no relatives and received support from a few acquaintances.

44.  On 11 April 1994 judge Er . at the District Court ordered the applicant to provide further information. He was requested, inter alia , to submit the names and addresses of the persons supporting him, and to specify the amounts, intervals and means of their payments. Further, the applicant was requested to submit a number of supporting documents.

45.  On 15 April 1994 the applicant submitted inter alia that he received ATS 200 per week from a certain Mrs F. He also submitted a number of documents.

46.  On 18 April 1994 the District Court cancelled the date for the next hearing which had been set for 22 April 1994. It noted that, in the proceedings at issue, the parties were obliged to be represented by a lawyer ( Anwaltszwang ). As the applicant had requested legal aid and was currently not represented the hearing could not take place.

47.  On 5 May 1994 the District Court, without having held a hearing, dismissed the applicant's request for legal aid and imposed a fine of ATS 30,000 for abuse of process on him. Referring to the applicant's declaration of means and his further submissions, it found that the applicant had made incomplete or false statements. In particular he had declared that he was without income since 1 October 1993 and only received ATS 200 per week. However, the documents submitted by him showed that he had paid his rent of ATS 1,234 from October 1993 to January 1994. As the total income which he claimed per month was less than this sum, it could not be deduced from his submissions how he had been able to pay his rent. Finally, the Court noted that it had fixed the fine in a relatively modest amount as the applicant had only attempted to improperly obtain legal aid.

48.  On 8 May 1994 the applicant appealed against this decision.

49.  On 28 February 1995 the Vienna Regional Civil Court, sitting in private, dismissed the applicant's appeal. It referred to section 63 § 1 of the Code of Civil Procedure ( Zivil-prozeßordnung ), according to which legal aid had to be granted to a party whose necessary means of livelihood would be endangered if he or she had to bear the costs of the proceedings. According to section 66 § 2 of the said Code the party's declaration of means formed the basis for the court's decision. In case of doubt the court had to examine the said declaration for instance by requesting the party to provide further information and supporting documents.

50.  In the present case, the District Court had rightly rejected the applicant's request for legal aid. The applicant's submissions that he had savings which allowed him to pay his rent from October 1993 onwards, constituted new facts, which were inadmissible in the appeal proceedings. In his request for legal aid he had stated that he had received no income since 1 October 1993 and depended on the support of acquaintances. Upon the Court's request to supplement his submissions, the applicant had specified that he received ATS 200 per week as support. He had not, however, stated that he had any savings to cover his maintenance. The District Court had rightly concluded that he had made incomplete or false statements and had, thus, failed to show that the costs of the proceedings would endanger his means of livelihood. It had also correctly imposed a fine for abuse of process in accordance with section 69 of the Code of Civil Procedure.

51.  On 28 March 1995 the District Court issued an order for payment of the fine for abuse of process.

52.  On 16 August 1995 the District Court, referring to section 220 § 3 of the Code of Civil Procedure, noted that an attempt to collect the fine had been futile and converted the fine into ten days of imprisonment. The applicant was informed that he could lodge an appeal against this decision. It appears that the applicant did not appeal.

53.  On 11 October 1996 judge Z. at the District Court set 30 October 1996 as a date for the next hearing. In the summons the applicant was informed that he had to be represented by counsel at the hearing. Should he not be represented he would be considered as being in default. Upon the claimant's request the hearing was postponed to 2 December 1996.

54.  On 2 December 1996 neither of the parties appeared at the hearing. Consequently, the proceedings were stayed ( Ruhen des Verfahrens ). So far, none of the parties has requested their continuation.

B. Relevant domestic law

       Code of Civil Procedure

55.  Section 69 of the Code of Civil Procedure ( Zivilprozeßordnung ) provides that a court shall impose a fine for abuse of process of up to ten times the amount provided for in S. 220 § 1 of the same Code (namely ATS 400,000) on a litigant who obtains legal aid improperly by making false or incomplete statements.

56.  Section 220 of the Code of Civil Procedure provides inter alia that a fine for abuse of process may not exceed ATS 40,000 (paragraph 1). In the event of inability to pay, a fine shall be converted into imprisonment. The length of imprisonment shall be determined by the court, but may not exceed ten days (paragraph 3).

57.  According to section 514 of the Code of Civil Procedure an appeal ( Rekurs ) lies against any decision of a court, unless it is explicitly excluded.

       Penal Code

58.  Section 19 of the Penal Code ( Strafgesetzbuch ) deals with fines ( Geldstrafen ). It provides that fines shall be expressed as day-fines. They shall not amount to less than two day-fines (paragraph 1). Day-fines shall be fixed according to the offender’s means and personal circumstances at the time of the judgment at first instance. However, they shall not amount to less than ATS 30 or more than ATS 4,500 (paragraph 2). If a fine proves to be irrecoverable, a sentence of imprisonment in default shall be passed. One day’s imprisonment in default shall correspond to two day-fines (paragraph 3).

III.   OPINION OF THE COMMISSION

A.    Complaints declared admissible

59.  The Commission declared admissible the applicant’s complaints:

-      that the proceedings between him and a bank lasted unreasonably long;

-     that the District Court, before imposing a fine for abuse of process on him, did not inform him of its suspicion that he had made false or incomplete statements in his request for legal aid and that he could not duly defend himself.

B.   Points at issue

60.  Accordingly the points at issue are:

-     whether there has been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings between the applicant and a bank;

- whether there has been a violation of Article 6 §§ 1 and 3 of the Convention as regards the proceedings relating to the imposition of a fine for abuse of process on the applicant.

C.   As to Article 6 § 1 of the Convention relating to the proceedings between the applicant and a bank

61.  The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings between him and a bank.

62.  Article 6 § 1, so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ... .“

63.  The applicant submits that the proceedings between him and a bank lasted unreasonably long. He considers in particular that the various changes of his representatives did not cause any substantial delays. In particular, he claims that the hearing which had been set for 9 February 1989 was cancelled because the court was prevented from holding it and not on account of Mr K.’s withdrawal from the case. As regards Mr H.’s lack of information, it was due to the latter’s failure to contact him. Finally, the applicant argues that the court failed to set a date for a hearing between 22 April 1994 and 30 October 1996.

64.  The Government submit that the duration of the proceedings, which lasted from 27 June 1988 until 2 December 1996, has to be regarded as reasonable in the circumstances of the case. They argue that the proceedings were complex, as they involved the bank's claim and the applicant's counterclaim, relating to events which had taken place a long time ago and necessitating extensive taking of evidence. Moreover, the Government submit that the applicant did not take any steps to expedite the proceedings but, on the contrary, caused substantial delays in particular in that he frequently changed his representative, and in the case of Mr H. also failed to inform him of the background of the case, requested several times that hearings be postponed, extended his counterclaim and submitted evidence belatedly. Finally, the applicant displayed a lack of interest in the proceedings in that he failed to appear at the hearing of 2 December 1996. As the claimant equally failed to appear, the proceedings were stayed.

65.  The Commission notes that the proceedings at issue were started on 27 June 1988 before the Hietzing District Court. They have not yet terminated, but were stayed on 2 December 1996, as both parties failed to appear at a hearing and have not requested that the proceedings be resumed. Thus, the proceedings lasted almost eight and a half years at one level of jurisdiction before they were stayed.

66.  The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (Eur. Court HR, Ciricosta and Viola v. Italy judgment of 4 December 1995, Series A no. 337-A, p. 9, § 24).

67.  The Commission considers that the proceedings were of some complexity, as they concerned a bank’s claim against the applicant as well as his counterclaim, which were both extended in the course of the proceedings. However, they did not necessitate the hearing of a large number of witnesses or the taking of expert opinions.

68.  Moreover, considerable delays are imputable to the District Court. First, following cancellation of a hearing in February 1989, the reason for which is in dispute between the parties, there was a period of inactivity of ten months until December 1989. Further, the District Court caused delays of nine and a half months (June 1990 to April 1991) and one year (October 1991 to October 1992), respectively, by two decisions to adjourn the proceedings pending the final judgment in civil proceedings between the applicant and a third party. Both decisions were quashed by the appellate court upon the applicant’s appeal. Finally, following the refusal of the applicant’s legal aid request, which was confirmed by the appellate court in February 1995, the District Court only set the date for the next hearing for October 1996, thus causing a further delay of one year and eight months. In all, the delays attributable to the court amount to roughly four years and three months.

69.  As to the applicant’s conduct, it is true that he changed his representative frequently, but the Commission does not share the Government’s view that these changes caused considerable delays.  It is also true that, apart from his appeals against the adjournment of the proceedings, he did not ask for the proceedings to be expedited and twice requested that a hearing be postponed (hearings of 12 July and 3 December 1993), thereby causing delays of altogether six and a half months. A further hearing (of 22 April 1994) had to be postponed on account of the applicant’s legal aid request. Finally, he did not appear at the hearing of 2 December 1996 which, as the opposite party also failed to appear, resulted in the proceedings being stayed.

70.  Having regard to all the circumstances of the case, the Commission finds that an overall duration of eight and a half years which elapsed before the proceedings were stayed, cannot be regarded as “reasonable” within the meaning of Article 6 § 1 of the Convention, given that there was only one level of jurisdiction and that delays of about four years and three months are attributable to the District Court.

       CONCLUSION

71.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 § 1 of the Convention.

D.   As to Article 6 §§ 1 and 3 of the Convention relating to the proceedings concerning the imposition of a fine for abuse of process on the applicant

72.  The applicant complains under Article 6 §§ 1 and 3 (a) and (b) of the Convention that the District Court, before imposing a fine for abuse of process on him, did not inform him of its suspicion that he had made false or incomplete statements in his legal aid request and that he could, therefore, not duly defend himself.

73.  Article 6 of the Convention, so far as relevant, reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

a.  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b.  to have adequate time and facilities for the preparation of his defence ;

...”

a.    Applicability of Article 6 of the Convention

74.  The applicant has not forwarded any specific argument on this issue. However, it follows from his submissions that he considers the “criminal head” of Article 6 to be applicable.

75.  The Government submit that the proceedings relating to the imposition of a fine for abuse of process do not involve the determination of a “criminal charge” within the meaning of Article 6. Referring to the case-law of the Convention organs, they argue that the offence laid down in section 69 of the Code of Civil Procedure does not belong to the criminal sphere under Austrian law. Moreover, it only applies to a limited circle of people, namely litigants who apply for legal aid. As to the nature and severity of the sanction at stake, the Government argue that although the maximum penalty provided for in section 69 in conjunction with section 220 § 1 of the Code of Civil Procedure may be up to ATS 400,000, only a penalty of ATS 30,000 was imposed and the prison sentence in case of default may, in any event, not exceed ten days. Such penalties are not entered in the criminal record. Conversion into a term of imprisonment will only be ordered were the fine is irrecoverable and is subject to an appeal.

76.  The Commission will consider whether the proceedings complained of related to a “criminal charge” against the applicant within the meaning of Article 6 § 1 of the Convention, the applicant’s “civil rights and obligations” not being at issue in the present case.

77.  The Commission recalls that the question whether the “criminal head” of Article 6 applies has to be assessed in the light of the three alternative criteria laid down in the Court’s case-law, namely the classification of the offence in domestic law, the nature of the offence and the nature and severity of the penalty (see Eur. Court HR, Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 34-35, § 82; Weber v. Switzerland judgment of  22 May 1990, Series A no. 177, pp. 17-18, §§ 31-34; Ravnsborg v. Sweden judgment of 23 March 1994, Series A no. 283-B, p. 28, § 30; Putz v. Austria judgment of  22 February 1996, Reports of Judgments and Decisions 1996-I, p. 324, § 31).

78.   In the present case, the fine imposed on the applicant was based on section 69 and section 220 § 1 of the Code of Civil Procedure and not on provisions of the Criminal Code. These provisions confer powers on the court to sanction an abuse of legal aid. Moreover, the penalties imposed under the above provisions are not entered in the criminal record and their amount does not depend on income as in criminal law. These features tend to show that Austrian law does not regard them as criminal penalties (see mutatis mutandis , Putz v. Austria judgment, op. cit., p. 324, § 32).

79.  The provisions at issue are designed to prevent litigants from dishonestly obtaining legal aid. Like rules enabling a court to sanction disorderly conduct in proceedings before it, they derive from the inherent power of a court to ensure the proper and orderly conduct of its own proceedings and are, thus, more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence ( Ravnsborg v. Sweden judgment, op. cit., p. 30, § 34; Putz v. Austria judgment, op. cit., p. 325, § 33). Thus, the Commission finds that the kind of proscribed conduct for which the applicant was fined falls in principle outside the ambit of Article 6.

80.  Notwithstanding the non-criminal nature of the proscribed misconduct, the nature and degree of severity of the penalty that the person concerned risked incurring may bring the matter into the “criminal” sphere ( Ravnsborg v. Sweden judgment, op. cit., p. 30, § 35; Putz v. Austria judgment, op. cit., p. 325, § 34).

81.  The Commission recalls that the Court had to examine this question in a number of cases relating to penalties imposed for misconduct in court proceedings. In the Weber case, relating to a breach of confidentiality of court investigations, a penalty of  Swiss Francs (CHF) 500 was at stake, which could under certain circumstances be converted into a prison term of  one day per CHF 30, i.e. a maximum of sixteen days. A penalty of CHF 300 was actually imposed. The Court, having regard to the nature of the offence which potentially affected the whole population, as well as to the nature and severity of the penalty, considered that the offence at issue had to be classified as “criminal” (Weber v. Switzerland judgment, op. cit., p. 18, §§ 33-34). In the Ravnsborg case, relating to offences against the good order in court proceedings, a maximum penalty of  Swedish kronor (SEK) 1,000 was at stake, convertible into a term of imprisonment between fourteen days and three months. Three fines of SEK 1,000 each were actually imposed. In the Putz case, also relating to offences against the good order in court proceedings, maximum fines of ATS 10,000 and 20,000 were at stake, convertible into prison terms not exceeding eight and ten days, respectively. Fines of ATS 5,000, 7,500 and 10,000 were actually imposed. In the latter two cases the Court found that what was at stake was not sufficiently important to warrant classifying the offences as “criminal” ( Ravnsborg v. Sweden judgment, loc. cit.; Putz v. Austria judgment, op. cit., p. 326, § 37).

82.  The Commission notes that the penalties the applicant risked incurring in the present case were considerably more serious than those at stake in the above-mentioned cases. According to section 69 in connection with section 220 § 1 of the Code of Civil Procedure, the applicant risked incurring a pecuniary penalty of up to ATS 400,000. Under section 200 § 3 of the said Code the fine can be converted into a term of imprisonment not exceeding ten days in case it is irrecoverable. The penalty  imposed on the applicant in the present case amounted to ATS 30,000, which is higher than any of the penalties imposed in the above-mentioned cases. Moreover, it was actually converted into a prison term of ten days.

83.  Although the amount of the maximum penalty as well as the amount of the penalty actually imposed may not be decisive in themselves, they are important elements to be taken into account when assessing the nature and the degree of severity of the penalty for the classification of the offence at issue. The Commission observes in particular that the fines for abuse of process in relation to surreptitiously obtaining legal aid come within the range of fines provided for under the Penal Code.

84.  As to the prison term the applicant risked incurring, that term was no longer than in the Putz case despite the great difference in the pecuniary penalty. In the Ravnsborg case, the prison term at stake was even longer, extending from fourteen days to three months. However, the Court when finding that that penalty nevertheless did not bring the offence into the criminal sphere attached particular importance to the fact that its conversion into a prison term required further court proceedings in which the offender had to be summoned to an oral hearing ( Ravnsborg v. Sweden judgment, loc. cit.). In the present case, while an appeal was possible against the decision to convert the fine into a term of imprisonment, there are no provisions ensuring that the person concerned has to be heard in the appeal proceedings.

85.  Having regard to the high amount of the pecuniary penalty at stake combined with the possibility to convert that penalty into a prison term of up to ten days without the guarantee of a hearing, the Commission finds that what was at stake for the applicant in the present case, was important enough to warrant classifying the offences as “criminal” within the meaning of Article 6 of the Convention.

b.    Compliance with Article 6 §§ 1 and 3 of the Convention

86.  The applicant complains under Article 6 §§ 1 and 3 (a) and (b) that his defence rights were violated. He submits in particular that the District Court, before imposing a fine for abuse of process on him, did not inform him of its suspicion that he had made false or incomplete statements in his legal aid request and that he could, therefore, not duly defend himself.

87. The Government contest the applicant’s view. They point out that the applicant was aware that false or incomplete statements could entail a penalty under section 69 of the Code of Civil Procedure as the form for the declaration of means he used for his legal aid request contains an explicit warning. Further, he could have made submissions in defence of his initially incomplete statements, when he was ordered to supplement his legal aid request. However, he failed to do so in his submissions of 15 April 1994. Nor did he forward arguments in his defence in his appeal against the District Court’s decision of 5 May 1994. The Government conclude that, thus, the applicant’s defence rights were not impaired by the courts but by his own conduct.

88.  The Commission recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1, and will, therefore consider the applicant’s complaints under the two provisions taken together (see Eur. Court HR, Kremzow v. Austria judgment of 21 September 1993, Series A no. 268-B, p. 41, § 44).

89.  The Commission notes that the District Court on 11 April 1994 ordered the applicant to supplement his legal aid request. However,  there was no indication that the court suspected the applicant of  having committed the offence punishable under section 69 of the Code of Civil Procedure. On 5 May 1994 the District Court, without having held a hearing, imposed a fine for abuse of process on him finding that he had attempted to dishonestly obtain legal aid by making false or incomplete statements. Thus, the applicant only learned about the accusation levelled against him when the District Court’s decision was served on him. It is true that an appeal lay against this decision, but the shortcomings of the first instance proceedings were not remedied in the appeal proceedings, as the Regional Court confirmed the District Court’s decision on 28 February 1995 without a hearing. It found inter alia   that the applicant’s submissions constituted new facts which were inadmissible in appeal proceedings. In sum, the applicant did not have a fair hearing, ensuring him the opportunity to exercise his rights of defence , as guaranteed in Article 6 §§ 1 and 3 of the Convention.

       CONCLUSION

90.  The Commission concludes, by 21 votes to 4, that in the present case there has been a violation of Article 6 §§ 1 and 3 of the Convention.

E.    Recapitulation

91.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 § 1 of the Convention (§ 71).

92.  The Commission concludes, by 21 votes to 4 that in the present case there has been a violation of Article 6 §§ 1 and 3 of the Convention (§ 90).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF Mr. K. HERNDL JOINED BY

MM. M. PELLONPÄÄ, B. MARXER AND R. NICOLINI

We have voted against the conclusion that in the present case there has been a violation of Article 6 §§ 1 and 3 of the Convention (§ 90 of the Report). We did so for the simple reason that in our opinion Article 6 is not applicable to proceedings relating to the imposition of a fine for abuse of process on the applicant.

The present case is yet again one of those where the Commission was faced with the question whether incidental decisions of national Courts, such as the imposition of a fine for abuse of process, fall within Article 6. Here the precise question was whether the national Court’s decision to impose a fine of ATS 30.000 (approx. FF 15.000) involved the determination of a “criminal charge” within the meaning of Article 6.

In its § 77 the Report refers to the important relevant precedents in this field and subsequently proceeds to an analysis on the basis of which it concludes that on this occasion - unlike in the majority of comparable cases in the past - there was a breach of Article 6. The main reasoning given for this opinion is the “high amount of the pecuniary penalty at stake combined with the possibility to convert that penalty into a prison term of up to ten days” (§ 85).

It is, however, our view, formed on the basis of the authority of the very same precedents, that the amount of the maximum penalty alone does not suffice to bring the offence into the “criminal” sphere (see mutatis mutandis , Bendenoun v. France judgment of 24 February 1994, Series A no. 284, p. 20, § 47). In the present case the national Court found that a fine of ATS 30,000 was appropriate as the applicant had only attempted to obtain legal aid dishonestly. Apart from the maximum penalty there are no other elements to distinguish the present case from the Putz case. The fine is not entered in the criminal record. The national Court can, in accordance with applicable law, only convert the fine, in case it is irrecoverable, into a prison term not exceeding ten days, and an appeal lies against such a decision. It should also be noted that in the Ravnsborg case the national Court had the power, according to the relevant law, to convert a fine into a prison term of up to three months.

In conclusion, therefore, we cannot find that what was at stake for the applicant in the particular circumstances of the case was sufficiently important to warrant classifying the offence at issue as “criminal” within the meaning of Article 6 of the Convention. Accordingly, in our opinion, Article 6 was not applicable to the proceedings in question.