PUTZ v. AUSTRIA
Doc ref: 18892/91 • ECHR ID: 001-45689
Document date: October 11, 1994
- Inbound citations: 14
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- Cited paragraphs: 1
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- Outbound citations: 1
EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 18892/91
Wilhelm Putz
against
Austria
REPORT OF THE COMMISSION
(adopted on 11 October 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-12) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 13-17). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 18-35) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 18-26). . . . . . . . . . . . . . . . . . .3
B. The relevant domestic law
(paras. 27-35). . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 36-77) . . . . . . . . . . . . . . . . . . . . .6
A. Complaints declared admissible
(para. 36). . . . . . . . . . . . . . . . . . . . .6
B. Points at issue
(para. 37). . . . . . . . . . . . . . . . . . . . .6
C. Article 6 of the Convention
(paras. 38-70). . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 71). . . . . . . . . . . . . . . . . . . . 11
D. Article 13 of the Convention
(paras. 72-74). . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 75). . . . . . . . . . . . . . . . . . . . 11
E. Recapitulation
(paras. 76-77). . . . . . . . . . . . . . . . . . . . . 12
DISSENTING OPINION OF MR. C.A. NØRGAARD joined by
MR. S. TRECHSEL, MRS. G.H. THUNE, MM. F. MARTINEZ,
M.P. PELLONPÄÄ and I. BÉKÉS. . . . . . . . . . . . . . . . . 13
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 14
APPENDIX II : 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, born in 1936, is an Austrian national and resident
Loading citations...in Bad Goisern. He is a civil engineer and businessman by profession.
As from January 1993 he was represented by Mr. C. Schwab, a lawyer
practising in Wels.
3. The application is directed against Austria. The respondent
Government were represented by their Agent, Mr. F. Cede, Ambassador,
Head of the International Law Department at the Federal Ministry of
Foreign Affairs.
4. The case concerns the applicant's complaints that he did not have
a fair hearing by an impartial tribunal in respect of the Wels Regional
Court's decisions of 2 and 8 April 1991 and the Linz Court of Appeal's
decision of 17 July 1991, imposing penalties upon him for "offences
against the order in court", and that he had no effective remedy in
respect of these court decisions.
B. The proceedings
5. The application was introduced on 23 September and registered on
3 October 1991.
6. On 11 March 1992 the Commission decided to communicate the
application to the respondent Government for written observations on
its admissibility and merits.
7. Observations were submitted by the Government on
13 November 1992. The applicant submitted observations in reply on
20 December 1992, and amended them on 9 February 1993.
8. On 11 December 1992 the Commission decided to grant the applicant
legal aid.
9. On 11 May 1993 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application regarding
the applicant's complaints under Article 6 para. 1 and Article 10 of
the Convention and Article 2 of Protocol No. 7 to the Convention that,
in the course of criminal proceedings against him, fines were imposed
upon him for "offences against the good order in court proceedings".
10. The hearing took place on 3 December 1993. The respondent
Government were represented by Mr. Okresek, Head of International
Affairs Division, Constitutional Service, Federal Chancellery, Agent,
as well as Mr. Schmidt, Human Rights Division, International Law
Department, Federal Ministry for Foreign Affairs, and Ms. Gartner,
Public Prosecutor, Criminal and Clemency Cases Department, Federal
Ministry of Justice, Advisers. The applicant was represented by
Mr. Schwab, counsel, and attended the hearing in person.
11. On 3 December 1993 the Commission declared admissible the
applicant's complaints, as mentioned above (para. 4).
12. 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
13. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present :
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
14. The text of this Report was adopted on 11 October 1994 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.
15. 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.
16. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
17. 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
a. Factual background
18. In 1985 criminal proceedings were instituted before the Wels
Regional Court against the applicant and others on the suspicion of
fraud and bankruptcy offences. In the course of these proceedings,
various penalties (Ordnungsstrafen) were imposed upon the applicant for
"offences against the good order in court proceedings".
b. The first fine
19. On 2 April 1991, in the course of the trial against the
applicant, the Wels Regional Court (Kreisgericht), referring to S. 235
of the Code of Criminal Procedure (Strafprozeßordnung), imposed a fine
of AS 5,000 upon the applicant for an offence against the good order
in court proceedings. The Court noted that, in accordance with S. 237
para. 1 of the Code of Criminal Procedure, there was no appeal against
this decision.
20. In its written decision, the Regional Court stated that, in the
course of the criminal proceedings against him, the applicant had
already been repeatedly warned about disciplinary measures under S. 235
of the Code of Criminal Procedure in view of his behaviour and
constant, untenable reproaches against the Presiding Judge in
particular. At the trial on 2 April 1991, the applicant had partly
repeated these reproaches, i.e. misconduct of the committal proceedings
(Zwischenverfahren) by the Presiding Judge and alleged bias in the
performance of his functions in the proceedings, even though the Linz
Court of Appeal, in various decisions, had tried to explain to him that
his reproaches were unfounded. The applicant had also reproached the
Presiding Judge with the violation of an oath, the continued violation
of the law, and the exercise of influence over other officials to the
effect that the applicant would be deprived of all his defence rights
by means of deception, untruth and lies. The last mentioned statement
related to an alleged withholding of the records of the trial. Having
regard to the statements of the Presiding Judge in this respect, the
Regional Court found that the applicant's reproaches were totally
untenable and incorrect. The applicant, therefore, had to be
disciplined in an appropriate manner.
21. On 16 April 1991 the applicant received the written version of
the decision of 2 April 1991. On 21 April 1991 the Wels Regional Court
issued a payment order against the applicant regarding the above fine.
The fine was subsequently transformed into a term of three days'
imprisonment in default of payment. On 3 December 1991 the Wels
Regional Court summoned the applicant to serve the prison term. The
fine was thereupon paid.
c. The second fine
22. At the trial on 8 April 1991, the Wels Regional Court imposed a
further fine of AS 7,500 upon the applicant. The Court referred to its
earlier decision of 2 April 1991. It noted that in the course of the
trial the applicant had again brought obviously unfounded reproaches
against the Presiding Judge. The applicant had stated in particular
that the Presiding Judge had violated an oath, had deliberately
violated the law and conducted an unfair trial in order, inter alia,
to further his career, and that he had already arranged for the
judgment before the conclusion of the trial.
23. On 17 April 1991 a payment order concerning the fine of
8 April was issued against the applicant. He received the written
version of the decision of 8 April 1991 on 20 April 1991. In default
of payment, this fine was subsequently transformed into a term of five
days' imprisonment. On 3 December 1991 the Wels Regional Court
summoned the applicant to serve the prison term. The fine was
thereupon paid.
d. The third fine
24. On 17 July 1991 the Linz Court of Appeal (Oberlandesgericht),
referring to S. 85 para. 1 and S. 97 of the Court Organisation Act, in
conjunction with S. 220 para. 1 of the Code of Civil Procedure
(Zivilprozeßordnung), imposed a fine of AS 10,000 upon the applicant.
It noted that there was no appeal against this decision.
25. The Linz Court of Appeal found that the applicant, in submissions
dated 20 June 1991 to the President of the Court of Appeal and to one
of its judges relating to the criminal proceedings against the
applicant, had made insulting remarks and thereby undermined the
authority of the judiciary. He had in particular stated that the
Presiding Judge at the Wels Regional Court prevented the finding of the
truth, this being the typical method of proceeding under the Nazi
regime and in the Eastern bloc. The Court of Appeal considered that
the applicant had exceeded the limits of objectivity and decency in
comparing the judiciary in the proceedings concerned with the typical
methods of the Nazi and Eastern bloc regimes, and qualifying them as
criminal, like the judiciary under Hitler and Stalin. Anyone could
complain about alleged misuse of official powers in a lawful manner.
26. On 18 March 1992 a payment order concerning the fine of
8 April was issued against the applicant. The fine was paid on
26 March 1992.
B. The relevant domestic law
27. SS. 232 to 238 of the Austrian Code of Criminal Procedure
(Strafprozeßordnung) concern the powers of the presiding judge and of
the court for maintaining order in the court at the trial.
28. According to S. 233 para. 1, the presiding judge ensures the
peace and order in court as well as the good behaviour corresponding
to the dignity of the court. Paragraph 3 of this provision prohibits
signs of approval or disapproval, and entitles the presiding judge to
admonish persons disturbing the proceedings by making such signs or
otherwise, or to order, if necessary, that some or all listeners be
removed from the court room. Furthermore, if the admonished person
disobeys or if the disturbances are repeated, the presiding judge may
impose a penalty (Ordnungsstrafe) not exceeding AS 10,000, or, if
indispensable for maintaining the order, imprisonment for a period not
exceeding eight days.
29. S. 235 relates to "offences against the good order in court
proceedings" and reads as follows:
"The presiding judge shall ensure that no one is exposed to
insulting remarks or obviously unfounded and irrelevant
accusations. Where the accused or the private prosecutor, the
private party to the proceedings, a witness or an expert have
taken the liberty of making such remarks, the court, upon the
request of the insulted person or of the public prosecutor or ex
officio, may impose a penalty (Ordnungsstrafe) not exceeding
AS 10,000, or, if indispensable for maintaining the order,
imprisonment for a period not exceeding eight days."
30. S. 237 para. 1 of the Code of Criminal Procedure provides that
decisions under S. 235 are immediately enforceable, and that no appeal
lies against them. Paragraph 2 of S. 237, in conjunction with S. 278,
regulate the procedure regarding criminal offence committed in court
when the perpetrator is apprehended in the act. Thus the court may,
upon the request of the public prosecutor and having heard the person
charged and the witnesses present, determine this charge immediately,
either after having interrupted the trial or at its end.
31. S. 7 para. 1 of the Code of Criminal Procedure provides that the
court, if a fine (Geldstrafe) imposed under this Code cannot be
collected, may reassess the fine in case of a change in the situation
of the person concerned, or, otherwise has to convert it into a term
of imprisonment in default of payment (Ersatzfreiheitsstrafe) not
exceeding eight days. According to paragraph 2, the execution of this
term of imprisonment is governed by the provisions of the Execution of
Sentences Act (Strafvollzugsgesetz) regarding terms of imprisonment not
exceeding three months. As regards decisions to convert a fine into
a term of imprisonment in default of payment, an appeal may be lodged
in accordance with S. 114 para. 1 of the Code of Criminal Procedure.
32. According to S. 85 para. 1 of the Court Organisation Act
(Gerichtsorganisationsgesetz), a penalty within the meaning of S. 220
of the Code of Civil Procedure (Zivilprozeßordnung) may be imposed upon
a party to non-contentious proceedings (Angelegenheiten der Gerichts-
barkeit in Außerstreitsachen), who, in written submissions to the
court, makes insulting remarks, thereby disregarding the authority of
the court. S. 97 of the Court Organisation Act provides that the
provisions of the Court Organisation Act apply to matters of criminal
jurisdiction to the extent that they are suitable and that there are
no special provisions concerning criminal proceedings; no appeal lies
against decisions imposing penalties in such context.
33. According to S. 220 para. 1 of the Code of Civil Procedure, a
penalty (Ordnungsstrafe) may not exceed the amount of AS 20,000.
S. 220 para. 3 provides that imprisonment may be ordered in default of
payment of a fine (Geldstrafe). The term of imprisonment shall be
determined by the court, but may not exceed ten days.
34. According to S. 18 of the Austrian Penal Code (Strafgesetzbuch),
terms of imprisonment range between one day and twenty years, or life
imprisonment. S. 19 paras. 1 and 2 of the Penal Code provide that
fines have to be determined on the basis of daily rates, taking into
account the personal and financial situation of the offender. The
minimum fine is two daily rates, the range of one daily rate is from
AS 30 to AS 4,500.
35. S. 67 of the Austrian Code of Criminal Procedure provides, inter
alia, that a judge is disqualified from carrying out judicial acts in
criminal proceedings if he is the victim of the offence in question.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
36. The Commission has declared admissible the applicant's complaints
- that he did not have a fair hearing by an impartial tribunal in
respect of the Wels Regional Court's decisions of 2 and
8 April 1991 and the Linz Court of Appeal's decision of
17 July 1991 imposing penalties upon him for offences against the
good order in court proceedings;
- that he did not have an effective remedy in respect of the above
court decisions.
B. Points at issue
37. Accordingly, the issues to be determined are
- whether there has been a violation of Article 6 paras. 1 and 3
(Art. 6-1,3) of the Convention;
- whether there has been a violation of Article 13 of the
Convention.
C. Article 6 (Art. 6) of the Convention
38. Article 6 (Art. 6) of the Convention, so far as relevant,
provides as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ...
...
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;
c. to defend himself in person or through legal assistance of his
own choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require;
d. to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him; ...
..."
a. Applicability of Article 6 (Art. 6)
39. The applicant submits that the decisions imposing the penalties
upon him involved a determination of a criminal charge against him
within the meaning of the above provision.
40. The Government contend that Article 6 (Art. 6) of the Convention
does not apply. They consider that the Austrian court decisions to
impose fines upon the applicant for contempt of court within the
meaning of S. 233 of the Austrian Code of Criminal Procedure and S. 220
of the Code of Civil Procedure did not relate to a punishment for
criminal behaviour, but were of a disciplinary nature. Referring to
the case-law of the Convention organs, in particular the Court's
Campbell and Fell judgment of 28 June 1984 (Series A no. 80), the
Government submit that, in order to maintain the authority of the
court, cases of contempt of court must not be disregarded. However,
they did not require criminal prosecution.
41. The Commission has considered whether the proceedings complained
of related to a "criminal charge" against the applicant within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the
applicant's "civil rights and obligations" not being at issue in the
present case.
42. The Commission has examined this question in the light of the
criteria established in the case-law of the European Court of Human
Rights (Eur. Court H.R., Engel and Others judgment of 8 June 1976,
Series A no. 22, p. 35, para. 82; Öztürk judgment of 21 February 1984,
Series A no. 73, pp. 18-20, paras. 50-53; Lutz judgment of
25 August 1987, Series A no. 123, p. 23, para. 55; Weber judgment of
22 May 1990, Series A no. 177, pp. 17-18, paras. 30-35; Demicoli
judgment of 27 August 1991, Series A no. 210, pp. 15-17, paras. 31-35;
Ravnsborg judgment of 23 March 1994, Series A no. 283-B,
pp. 28-31, paras. 30-35). The Commission also recalls that Article 6
(art. 6) was previously applied to criminal proceedings regarding
offences of "contempt of court" (No. 8083/77, X. v. United Kingdom,
D.R. 19 p. 223).
43. The Commission thus has to ascertain first whether the provisions
defining the offence charged belong, according to the legal system of
the respondent State, to criminal law, disciplinary law or both
concurrently. This factor is of relative weight, but serves as a
starting point.
44. In the Austrian legal system, the applicant's penalties were
based on S. 235 of the Code of Criminal Procedure and on S. 85 para. 1
and S. 97 of the Court Organisation Act, in conjunction with S. 220 of
the Code of Civil Procedure, not on provisions of the Penal Code. The
provisions at issue are found in the context of the powers of the
presiding judge or the court to maintain the order in court, and it is
for the presiding judge or the court sitting in a particular case to
apply the said provisions on its own motion. Regarding criminal
offences committed in court, S. 237 para. 2, in conjunction with
S. 278, regulate a specific procedure. The expressions "penalty"
("Ordnungsstrafe"), "fine" ("Geldstrafe") or "imprisonment" ("Haft"),
or "imprisonment in default of payment of a fine" ("Ersatzfreiheits-
strafe") used in the provisions concerned give an indication towards
a criminal classification. However, there is no clear indication that
the provisions concerning offences against the good order in court
proceedings belong to criminal law under Austrian legislation.
45. As regards the second, weightier criterion, namely the very
nature of the offence, the Commission recalls that disciplinary
sanctions are generally designed to ensure that members of particular
groups comply with the specific rules governing their conduct, or
relate to acts in breach of the internal regulations or impairing the
orderly functioning of a legal body, whereas the parties only take part
in court proceedings as people subject to the jurisdiction of the
courts and do not, therefore, normally come within the disciplinary
sphere of the judicial system (cf. Weber judgment, loc. cit., para. 33;
Demicoli judgment, loc. cit., p. 17, para. 33). However, rules
ordering a court to sanction disorderly conduct in proceedings before
it, a common feature of legal systems of the Contracting States, derive
from the indispensable power of a court to ensure the proper and
orderly functioning of its own proceedings. Measures ordered by a
court under such rules are more akin to the exercise of disciplinary
powers than to the imposition of a punishment for commission of a
criminal offence (cf. Ravnsborg judgment, loc. cit, para. 34).
46. In the present case, the Austrian courts applied S. 235 of the
Code of Criminal Procedure, and S. 85 para. 1 and S. 97 of the Court
Organisation Act, in conjunction with S. 220 of the Code of Civil
Procedure. The Commission notes that, while S. 233 of the Code of
Criminal Procedure generally provides for means to ensure peace, order
and good behaviour in court, including penalties for improper conduct
of listeners, the behaviour defined in S. 235 may have some features
of the criminal offences of insult and defamation. However, it remains
decisive that the Austrian courts took their decisions against the
applicant with the intention to discipline him for a behaviour at the
trial against him or in the course of appeal proceedings, respectively,
namely for remarks which they regarded as improper and disturbing.
47. The kind of proscribed conduct for which the applicant was
repeatedly fined has, therefore, rather the appearance of a
"disciplinary nature" and falls in principle outside the ambit of
Article 6 (Art. 6).
48. Notwithstanding the non-criminal character of the proscribed
misconduct, the nature and degree of severity of the penalty that the
person concerned incurring - the third criterion - may bring the matter
into the criminal sphere (cf. Ravnsborg judgment, loc. cit., p. 11,
para. 35).
49. The Commission notes that, in accordance with S. 235 of the
Austrian Code of Criminal Procedure, the fine for an offence against
the good order in court proceedings provides for a maximum fine of
AS 10,000, and, if indispensable to maintain the order, a term of
imprisonment not exceeding eight days could be imposed. Moreover,
S. 220 of the Code of Civil Procedure provides for a maximum fine of
AS 20,000. Fines which cannot be collected may be converted into a
term of imprisonment not exceeding eight or ten days, respectively.
The courts imposed fines amounting to AS 5,000, AS 7,000 and AS 10,000
upon the applicant; two of these were converted into terms of
imprisonment, but following payment, the applicant did not have to
serve them.
50. The Commission finds the range of penalties for offences against
the good order in court proceedings more serious than those examined
in the above-mentioned Ravnsborg judgment, where the penalty for an
offence against the good order in court proceedings was a fine
amounting to 1,000 Swedish kronor, which was convertible into a term
of imprisonment only following further court proceedings in which the
offender had to be summoned for an oral hearing (cf. Ravnsborg
judgment, loc. cit.).
51. The Commission considers that the maximum penalty involving a
deprivation of liberty up to eight or ten days, respectively, though
only applicable in aggravating circumstances not existing in the
present case, should be taken into account when assessing the nature
and degree of severity of the penalty for the offence at issue.
52. The Commission recalls that in a society subscribing to the rule
of law, there belong to the "criminal" sphere deprivations of liberty
liable to be imposed as a punishment, except those, which by their
nature, duration or manner of execution cannot be appreciably
detrimental. The seriousness of what is at stake, the traditions of
the Contracting States and the importance attached by the Convention
to respect for the physical liberty of the person all require that this
should be so (cf. Engel judgment, loc. cit., p. 35, para. 82).
53. The Commission finds that deprivation of liberty for a period up
to eight or ten days is of a considerable duration. In this context,
the Commission observes that according to S. 18 of the Austrian Penal
Code, the minimum term of imprisonment is one day. Moreover, such
terms of imprisonment imposed under S. 235 were to be executed under
the provisions of the Execution of Sentences Act like a term of
imprisonment imposed for an offence prescribed in the Penal Code.
54. Furthermore, the Commission observes that the maximum fines for
offences against the good order in court proceedings come within the
range of fines provided for under the Penal Code. Decisions to convert
a fine are, pursuant to the S. 7 of the Austrian Code of Criminal
Procedure and S. 220 of the Code of Civil Procedure, taken by a court;
however, there are no provisions ensuring that the person concerned has
to be heard by the court in the context of such proceedings.
55. In these circumstances, the Commission is of the opinion that the
penalties at stake in the applicant's case were important enough to
warrant classifying the offences as "criminal" under the Convention
(see Engel and Others judgment, loc. cit.; Weber judgment, loc. cit.,
para. 34; Demicoli judgment, loc. cit., p. 17, para. 34).
56. Consequently, Article 6 (Art. 6) of the Convention applies in the
present case.
b. Compliance with Article 6 (Art. 6)
57. As to the question of compliance with Article 6 paras. 1 and 3
(Art. 6-1,3) of the Convention, the Government submit that, regarding
the nature of the offence and proceedings in question, there was no
unfairness or undue restriction of the applicant's rights of defence.
They maintain that the courts concerned were impartial, the imposition
of a fine for an offence against the good order in court proceedings
could only be decided by the judges competent in the main proceedings,
even if the insulting remarks related to them.
58. The Commission recalls that the guarantees in paragraph 3 of
Article 6 (Art. 6-3) 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 (cf. Eur. Court
H.R., Kremzow judgment of 21 September 1993, Series A no. 268-B, p. 41,
para. 44; Isgrò judgment of 19 February 1991, Series A no. 194, p. 12,
para. 31).
59. The applicant's complaints relate to court decisions imposing
penalties upon him for offences against the good order in court
proceedings; two of them were taken by the Wels Regional Court and the
third by the Linz Court of Appeal. The Commission will examine the
issues raised by the applicant regarding the Wels Regional Court's
decisions and the Linz Court of Appeal's decision in turn.
60. The Wels Regional Court, in the course of the trial of 2 and
8 April 1991, respectively, decided to sanction the applicant for his
behaviour at the hearings, in particular for having raised untenable
accusations and reproaches against the Presiding Judge regarding the
conduct of the proceedings.
61. The Commission recalls that the existence of impartiality for the
purposes of Article 6 para. 1 (Art. 6-1) must be determined according
to a subjective test, that is on the basis of the personal conviction
of a particular judge in a given case, and also according to an
objective test, that is ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in this respect
(cf. Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A
no. 154, p. 21, para. 46; Thorgeir Thorgeirsson judgment of
25 June 1992, Series A no. 239, p. 23 para. 49; Fey judgment of
24 February 1993, Series A no. 255-A, p. 12, para. 28; Padovani
judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 25).
62. As to the subjective test, the personal impartiality of a judge
must be presumed until there is proof to the contrary (Padovani
judgment, loc. cit., para. 26). The applicant has not shown that there
was any personal bias on the part of the judges in question.
63. Under the objective test, it must be determined whether, quite
apart from the judge's personal conduct, there are ascertainable facts
which may raise doubts as to his impartiality. What is decisive is
whether the applicant's fear that a particular judge lacks impartiality
can be regarded as objectively justified (cf. Hauschildt judgment, loc.
cit., para. 48; Thorgeir Thorgeirsson judgment, loc. cit., para. 51,
Fey judgment, loc. cit., para. 30; Padovani judgment, loc. cit.,
para. 27; Nortier judgment of 24 August 1993, Series A no. 267, p. 15,
para. 33).
64. The decisions of 2 and 8 April 1991 imposing penalties upon the
applicant for offences against the good order in court proceedings were
taken by judges, including the Presiding Judge at the Wels Regional
Court, who were directly affected by the punishable behaviour in
question.
65. As regards criminal proceedings in general, S. 67 of the Austrian
Code of Criminal Procedure which lays down that a judge is disqualified
from carrying out judicial acts in criminal proceedings if he is the
victim of the offence in question, manifests the national legislature's
concern to remove all reasonable doubts as to the impartiality of a
judge in such a situation (cf., mutatis mutandis, Eur. Court H.R.,
Oberschlick judgment of 23 May 1991, Series A no. 204, p. 23,
para. 50).
66. The decisions in question were thus taken by a tribunal whose
impartiality appears open to doubt.
67. Moreover, the Wels Regional Court imposed the penalties in
question in the course of the trial against the applicant, thereby
reacting immediately to his behaviour which was found to constitute an
offence against the good order in court proceedings. While the
applicant had been repeatedly warned about disciplinary measures under
S. 235 of the Code of Criminal Procedure in view of his behaviour in
court and his reproaches against the Presiding Judge in particular, the
Regional Court did not give the applicant an opportunity to put forward
any arguments in his defence, both regarding his behaviour as such and
as to the kind and amount of a possible penalty before rendering the
decisions concerned.
68. The Linz Court of Appeal, in its decision of 17 July 1991,
sanctioned further remarks made by the applicant in written submissions
to the Court of Appeal, which related to the judges sitting at his
trial before the Wels Regional Court. The Commission finds that this
decision was taken in a written procedure, and again the applicant did
not have a hearing where he could have presented his defence.
69. As regards all above decisions, the Commission also observes that
there was no appeal, the defects found could, therefore, not be cured
at a subsequent stage.
70. In these circumstances, the Commission finds that, with regard
to the penalties imposed by the Wels Regional Court on 2 and
8 April 1991, and by the Linz Court of Appeal on 17 July 1991, the
applicant did not have a fair hearing, ensuring him the opportunity to
exercise his rights of defence, as guaranteed in Article 6 paras. 1
and 3 (Art. 6-1,3) of the Convention.
CONCLUSION
71. The Commission concludes, by ten votes to six, that there has
been a violation of Article 6 paras. 1 and 3 (Art. 6-1,3) of the
Convention.
D. Article 13 of the Convention
72. The applicant also claimed that he was denied an effective remedy
in respect of his complaints due to the absence of an appeal against
the above decisions of 2 and 8 April and 17 July 1991.
73. Article 13 reads:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
74. In view of the Commission's finding of a violation concerning the
applicant's rights under Article 6 paras. 1 and 3 (Art. 6-1,3) of the
Convention (see para. 71 above) it does not consider it necessary to
examine the applicant's allegation under Article 13 of the Convention.
CONCLUSION
75. The Commission concludes unanimously that it is not necessary to
examine the applicant's complaint under Article 13 of the Convention.
E. Recapitulation
76. The Commission concludes by ten votes to six that there has been
a violation of Article 6 paras. 1 and 3 (Art. 6-1,3) of the Convention
(see above para. 71);
77. The Commission concludes unanimously that it is not necessary to
examine the applicant's complaint under Article 13 of the Convention
(see above para. 75).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
DISSENTING OPINION OF MR. C.A. NØRGAARD, JOINED BY MR. S. TRECHSEL,
MRS. G.H. THUNE, MM. F. MARTINEZ, M.P. PELLONPÄÄ AND I. BÉKÉS
We regret that we cannot share the opinion of the majority of the
Commission that there has been a violation of Article 6 of the
Convention.
We find that the present case cannot be distinguished from the
circumstances underlying the Court's Ravnsborg judgment of
23 March 1994.
It is true that the fines for offences against the good order in
court proceedings under Austrian law attain the range of fines provided
for under the Austrian Penal Code. They are also fairly higher than
the maximum penalty at stake in the Ravnsborg case, which amounted to
1,000 Swedish kronor and was convertible into a term of imprisonment
only following further court proceedings in which the offender had to
be summoned for an oral hearing. Moreover, there is no specific
provision under the Austrian Code of Criminal Procedure that the person
concerned has to be heard by the court before a fine is converted into
a term of imprisonment.
Nevertheless, weighing all aspects, we consider that the
penalties involved in the present case remain within the limits of what
can reasonably be considered as a sanction for an offence of a
disciplinary nature. In our opinion, there are no features important
enough to warrant classifying these offences against the good order in
court proceedings as "criminal" under the Convention, and Article 6 of
the convention does not, therefore, apply.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
23 September 1991 Introduction of application
3 October 1991 Registration of application
Examination of admissibility
11 March 1992 Commission's decision to communicate the
case to the respondent Government and to
invite the parties to submit observations
on admissibility and merits
13 November 1992 Government's observations
11 December 1992 Commission's grant of legal aid
20 October 1992 Applicant's observations in reply
9 February 1993 Applicant's observations amended
11 May 1993 Commission's decision to hold a hearing
3 December 1993 Hearing on admissibility and merits
3 December 1993 Commission's decision to declare
application in part admissible and in part
inadmissible
Examination of the merits
9 April 1994 Commission's consideration of the state of
proceedings
11 October 1994 Commission's deliberations on the merits
and final vote
11 October 1994 Adoption of the Report