Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22541/93

Bernhard Marte and Walter Achberger

against

Austria

REPORT OF THE COMMISSION

(adopted on 9 April 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-26) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 27-45) . . . . . . . . . . . . . . . . . . . . .5

A. Complaints declared admissible

(para. 27). . . . . . . . . . . . . . . . . . . . .5

B. Points at issue

(para. 28). . . . . . . . . . . . . . . . . . . . .5

C. As regards Article 6 of the Convention

(paras. 29-34). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 34). . . . . . . . . . . . . . . . . . . . .6

D. As regards Article 4 of Protocol No. 7 to the Convention

(paras. 35-43). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 43). . . . . . . . . . . . . . . . . . . . .7

E. Recapitulation

(paras. 44-45). . . . . . . . . . . . . . . . . . .7

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . .8

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 applicants are Austrian citizens born in 1970. The first

lives in Wolfurt and the second in Lauterach. They were represented

before the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.

3. The application is directed against Austria. The respondent

Government were represented by Mr. F. Cede, Agent of the Austrian

Federal Government.

4. The case concerns administrative criminal proceedings for public

order offences, and their interaction with criminal proceedings which

were also brought against the applicants.

B. The proceedings

5. The application was introduced on 23 August 1993 and registered

on 27 August 1993.

6. On 11 May 1994 the Commission (First Chamber) decided, pursuant

to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government without inviting the parties,

at that stage of the proceedings, to submit written observations on the

admissibility and merits of the application.

7. On 18 October 1994 the Commission (First Chamber) resumed its

examination of the case and decided to request the Government whether,

in the light of the Article 31 Reports adopted on 19 May 1994 in

similar cases, they wished to waive the possibility of submitting

observations on the admissibility and merits of the application and,

if they did not, to request the parties to submit their observations

on the admissibility and merits of the case.

8. The Government submitted their observations on 1 February 1995.

The applicant replied on 5 October 1995.

9. On 17 January 1996 the Commission declared the application

admissible.

10. The text of the Commission's decision on admissibility was sent

to the parties on 29 January 1996 and they were invited to submit such

further information or observations on the merits as they wished. No

such observations were submitted.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 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' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

13. The text of this Report was adopted on 9 April 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to 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.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. 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

17. On 23 August 1990 the applicants were convicted by the Feldkirch

Regional Court (Landesgericht) of resisting the forces of the State.

Both had confessed. They had been accused in the charge (Strafanzeige)

of 3 July 1990 of insulting policemen who had come to remove them from

the bar at a summer festival ("Arschlöcher, Scheiß Bullen, Ihr könnt

uns am Arsch lecken"), of attempting to pull themselves away from the

policemen, and of injuring the policemen in the ensuing scuffle.

18. Administrative criminal proceedings were brought against both

applicants. On 13 September 1990 the first applicant was fined

AS 6,000 with nine days' detention in default for (i) causing a breach

of the peace by conduct likely to cause annoyance, contrary to

Section IX (1)(1) of the Introductory Law of the Administrative

Procedure Laws, by his behaviour before the arrival of the police at

the summer festival, (ii) offending public decency by insulting the

policemen, contrary to Section 18 (2) of the Morals (Policing) Act

(Sittenpolizeigesetz), and (iii) offending public decency, contrary to

the same provision, by insulting the policemen in the presence of other

persons.

19. On the same day the second applicant was fined AS 11,000 with

nine days' detention in default for (i) causing a breach of the peace

by conduct likely to cause annoyance, contrary to Section IX (1)(1) of

the Introductory Law of the Administrative Procedure Laws, by his

behaviour before the arrival of the police at the summer festival,

(ii) offending public decency by insulting the policemen, contrary to

Section 18 (2) of the Morals (Policing) Act, and (iii) attacking a

named policeman in the presence of other persons, contrary to

Section IX (1)(1).

20. The applicants appealed to the Vorarlberg Security Authority

(Landessicherheitsdirektion) in respect of the penal orders under the

Introductory Law, and to the Vorarlberg Regional Government

(Landesregierung) in respect of the penal orders under the Morals

(Policing) Act.

21. The applicants' appeals to the Vorarlberg Security Authority in

respect of the penal orders under the Introductory Law were dismissed

on 5 August 1991 and the penal orders were confirmed.

22. The Constitutional Court (Verfassungsgerichtshof) declined to

deal with the applicants' constitutional complaints on 17 June 1992.

In connection with the complaints under Article 6 of the Convention,

it referred to the Austrian reservation to Article 5 of the Convention.

In connection with Article 4 of Protocol No. 7, the Constitutional

Court referred to the declaration made by Austria on ratifying that

Protocol. It noted that the declaration had the force of

constitutional law, and found that the constitutional complaint had no

reasonable prospect of success. It also noted that the case was not

excluded from the jurisdiction of the Administrative Court

(Verwaltungsgerichtshof).

23. The Administrative Court dismissed the second applicant's

administrative complaint on 25 January 1993 (received by the

applicants' representative on 1 March 1993). It noted that

administrative law provided that one offence should not be prosecuted

twice in administrative proceedings, but continued that no provision

of law excluded the prosecution of administrative offences where

criminal proceedings had taken place. The first applicant's

administrative complaint was dismissed on 22 March 1993 (received by

the applicants' representative on 29 April 1993). The Administrative

Court referred to its decision of 25 January 1993.

* * *

24. The applicants' appeals to the Vorarlberg Regional Government in

respect of the offence under the Morals (Policing) Act were largely

dismissed on 13 and 11 June 1991. The fines imposed were reduced

slightly.

25. The applicants' constitutional complaints against the decisions

of the Vorarlberg Regional Government were included in the

Constitutional Court's decision of 17 June 1992 not to deal with the

constitutional complaints.

26. The Administrative Court dismissed the second applicant's

administrative complaints on 22 February 1993 (received by the

applicants' representative on 17 March 1993). It again noted that

administrative law provided that one offence should not be prosecuted

twice in administrative proceedings, but continued that no provision

of law excluded the prosecution of administrative offences where

criminal proceedings had taken place. It considered that the

provisions of Section 18 of the Morals (Policing) Act called for a

different judgment of human behaviour from Articles 115 (insult:

Beleidigung) or 267 (resisting the forces of the State: Widerstand

gegen die Staatsgewalt) of the Criminal Code (Strafgesetzbuch), so that

the principle of the separation of powers had not been breached. The

first applicant's administrative complaint was dismissed on

22 March 1993 (received by the applicants' representative on

29 March 1993). The Administrative Court referred to its decision of

22 February 1993.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

27. The Commission has declared admissible the applicants' complaints

concerning the review of the administrative decisions by the

Constitutional and Administrative Courts, and the complaints that the

applicants were convicted twice in respect of the same behaviour.

B. Points at issue

28. The points at issue in the present case are as follows:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention;

- whether there has been a violation of Article 4 of Protocol No. 7

(P7-4) to the Convention.

C. As regards Article 6 (Art. 6) of the Convention

29. Article 6 (Art. 6) of the Convention provides, so far as

relevant, as follows:

"1. In the determination of ... any criminal charge

against him, everyone is entitled to a fair and public

hearing ... by an independent and impartial tribunal ... "

30. The applicants claim that they did not have the benefit of a

"tribunal" in the administrative criminal proceedings against them.

31. The Government do not contest the merits of the application to

the extent that it is on all fours with the case of Gradinger (Eur.

Court HR, Gradinger v. Austria judgment of 23 October 1995, Series A

no. 328-C).

32. The Commission recalls that in a series of judgments (Eur. Court

HR, Schmautzer v. Austria, Umlauft v. Austria and Gradinger v. Austria

judgments of 23 October 1995, Series A no. 328-A, 328-B and 328-C, and

Pramstaller v. Austria, Palaoro v. Austria and Pfarrmeier v. Austria,

Series A no. 329-A, 329-B and 329-C), the European Court of Human

Rights found that the proceedings determined a "criminal charge" within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, that the

Austrian reservation to Article 5 (Art. 5) did not apply to the

criminal administrative proceedings at issue, and that neither the

Constitutional Court (Verfassungsgerichtshof) nor the Administrative

Court (Verwaltungsgerichtshof) had the "full jurisdiction" required by

Article 6 (Art. 6) in criminal cases.

33. In the present case, too, the administrative criminal proceedings

were considered by the Constitutional Court and the Administrative

Court, and those courts had the same jurisdiction as they had in the

cases of Schmautzer and others.

CONCLUSION

34. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

D. As regards Article 4 of Protocol No. 7 (P7-4) to the Convention

35. Article 4 of Protocol No. 7 (P7-4) reads, so far as relevant, as

follows:

"1. No one shall be liable to be tried or punished again

in criminal proceedings under the jurisdiction of the same

State for an offence for which he has already been finally

acquitted or convicted in accordance with the law and penal

procedure of that State."

36. The applicants claim that they were convicted first in ordinary

criminal proceedings and then in administrative criminal proceedings

in respect of substantially the same behaviour.

37. The Government do not contest the merits of the application to

the extent that it is on all fours with the case of Gradinger (Eur.

Court HR, Gradinger v. Austria judgment of 23 October 1995, Series A

no. 328-C). They note, however, that while the proceedings under the

Introductory Act were concerned with a disturbance of public order,

those under the Morals (Policing) Act referred to an outrage upon

public decency. They consider that disturbing order in a public place

is not the same as an outrage on public decency.

38. The Commission recalls that in the above-mentioned Gradinger

judgment the European Court of Human Rights found (at p. 65, para. 51)

that the Austrian declaration to Article 4 of Protocol No. 7 (P7-4) did

not comply with the requirements of Article 64 (Art. 64) of the

Convention. The same applies in the present case.

39. In the above-mentioned Gradinger case, the Court was aware

(at p. 66, para. 55) that "the provisions in question differ not only

as regards the designation of the offences but also, more importantly,

as regards their nature and purpose. It further [observed] that the

offence provided for in Section 5 of the Road Traffic Act represents

only one aspect of the offence ... under Article 81 para. 2 of the

Criminal Code. Nevertheless, both impugned decisions were based on the

same conduct. Accordingly, there has been a breach of Article 4 of

Protocol No. 7 (P7-4)."

40. The Commission recalls that in Gradinger the criminal and

administrative authorities made contradictory findings on one

particular factual element, namely the amount of alcohol in the

applicant's blood. In the present case, it is not as clear as in that

case that the facts in the respective proceedings were identical. The

applicants in the present case were convicted by the Feldkirch Regional

Court of resisting the forces of the State. The factual basis for the

criminal convictions was insulting policemen who had come to remove

them from the bar at a summer festival, attempting to pull themselves

away from the policemen, and injuring the policemen in the ensuing

scuffle.

41. The factual basis of the first applicant's administrative

convictions was his behaviour before the arrival of the police at the

festival, and insulting the policemen when they arrived. The factual

basis for the second applicant's administrative convictions was his

behaviour before the arrival of the police, and attacking a policeman.

42. The Commission finds, and neither the findings of the

Administrative Court nor the pleadings of the Government contest this

finding, that the factual bases for the applicants' criminal and

administrative convictions overlapped to such an extent that in the

second proceedings they were "tried or punished again ... for an

offence for which [they had] already been finally ... convicted" in

Austria. As in the case of Gradinger, the fact that the nature and

purpose of the offences is different cannot affect the position.

CONCLUSION

43. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 4 of Protocol No. 7 (P7-4) to the

Convention.

E. Recapitulation

44. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention (para. 34).

45. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 4 of Protocol No. 7 (P7-4) to the

Convention (para. 43).

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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MARTE and ACHBERGER v. AUSTRIA

MARTE and ACHBERGER v. AUSTRIA

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