Application No. 10802/84

Heinrich PFEIFER and Margit PLANKL

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 11 October 1990)

                        TABLE OF CONTENTS

                                                                  Page

I.      INTRODUCTION

        (paras. 1 - 23) ........................................    1

        A.      The application

                (paras. 2 - 8) .................................    1

        B.      The proceedings

                (paras. 9 - 18) ................................    2

        C.      The present Report

                (paras. 19 - 23) ...............................    3

II.     ESTABLISHMENT OF THE FACTS

        (paras. 24 - 57) .......................................    4

        A.      The criminal proceedings against the first

                applicant

                (paras. 24 - 43) ...............................    4

                1.  The investigation

                    (paras. 24 - 31) ...........................    4

                2.  The trial

                    (paras. 32 - 39) ...........................    5

                3.  The appeal proceedings

                    (paras. 40 - 43) ...........................    6

        B.      Censorship of correspondence between the

                two applicants (paras. 44 - 57) ................    6

                1.  The measure taken by the investigating judge

                    (paras. 44 - 45) ...........................    6

                2.  The complaints procedure before the Review

                    Chamber

                    (paras. 46 - 48) ...........................    7

                3.  The Attorney General's plea of nullity for

                    safeguarding the law

                    (paras. 49 - 51) ...........................    8

                4.  The Supreme Court's decision on the plea of

                    nullity

                    (paras. 52 - 57) ...........................    8

III.    OPINION OF THE COMMISSION

        (paras. 58 - 114) ......................................   10

        A.      Complaints declared admissible (para. 58) ......   10

        B.      Points at issue (para. 59) .....................   10

        C.      As to the alleged violation of Article 6 para. 1

                of the Convention in the first applicant's case

                (paras. 60 - 88) ...............................   10

                1.  "Tribunal established by law"

                    (paras. 62 - 80) ...........................   10

                2.  "Impartial tribunal"

                    (paras. 81 - 87) ...........................   13

                    Conclusion

                    (para. 88) .................................   14

        D.      As to the alleged violation of Article 8 of the

                Convention by the censorship of the applicants'

                correspondence

                (paras. 89 - 112) ..............................   14

                1.  Scope of the interference

                    (Article 8 para. 1)

                    (paras. 91 - 93) ...........................   14

                2.  Justification of the interference

                    (Article 8 para. 2)

                    (paras. 94 - 111) ..........................   15

                    a)  "In accordance with the law"

                        (paras. 95 - 100) ......................   15

                    b)  Legitimate purpose

                        (paras. 101 - 103) .....................   16

                    c)  "Necessary in a democratic society"

                        (paras. 104 - 111) .....................   17

                    Conclusion

                    (para. 112) ................................   18

        E.      Recapitulation

                (paras. 113 - 114) .............................   18

APPENDIX I      :  HISTORY OF THE PROCEEDINGS ..................   19

APPENDIX II     :  FIRST PARTIAL DECISION ON ADMISSIBILITY

                   (14 May 1987) ...............................   20

APPENDIX III    :  SECOND PARTIAL DECISION ON ADMISSIBILITY

                   (15 December 1988) ..........................   31

APPENDIX IV     :  FINAL DECISION ON ADMISSIBILITY

                   (8 May 1989) ................................   50

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 1945 and 1952

respectively.  Both are represented by Mr.  Reinhard Peters, a German

citizen residing in Munich, Federal Republic of Germany.

3.      The application is directed against Austria.  The Austrian

Government are represented by their Agent, Ambassador Dr.  Helmut

Türk, Legal Adviser of the Federal Ministry of Foreign Affairs.

4.      The case concerns criminal proceedings against the first

applicant and censorship of correspondence between the second and the

first applicant.

5.      The first applicant was tried by the Regional Court of

Klagenfurt in 1983.  He claims that the Court was neither "impartial"

nor "established by law", as required by Article 6 para. 1 of the

Convention.  Two judges had acted as investigating judges in the same

case.  They were therefore disqualified under Austrian law.  The

applicant's waiver of a remedy was invalid.

6.      The first applicant further submits that he should not have been

tried until his challenge of all judges of the Regional Court had been

determined in a case concerning accusations by the applicant against a

third investigating judge who had acted in his case.  The judges

trying the present case had declared themselves biased in the parallel

case, the investigating judge accused in that case being their

colleague.  The applicant submits that they must therefore have been

biased in the present case, too.  He invokes Article 6 para. 1 of the

Convention also in this respect.

7.      Both applicants complain of censorship by the investigating

judge of a letter which the second applicant addressed to the first

applicant when both were detained in the remand prison of the Regional

Court of Klagenfurt.  The investigating judge made certain passages of

the letter illegible on the ground that they contained "jokes of an

insulting nature against prison officers" and thus defamed officials

on duty.  In subsequent proceedings the contents of the deleted

passages were established on the basis of a report by the

investigating judge.  The Supreme Court held that the method of

censorship had been unlawful, but that censorship had as such been

justified as the second applicant could rightly be suspected of having

committed the offence of insulting officials on duty.  It observed

that in the forwarding procedure for the submission of the letter to

the investigating judge its contents would necessarily become known to

several prison or court officers on duty.

8.      The applicants complain that, having regard to its contents,

the censorship of the letter was not necessary in a democratic society

and thus could not be justified under Article 8 of the Convention.

They see a further violation of Article 8 in the forwarding procedure,

as described by the Supreme Court, in that it allowed the mail of

remand prisoners to be read by prison officers.

B.      The proceedings

9.      The application was introduced on 23 September 1983 and

registered on 31 January 1984.

10.     On 13 May 1987 the Commission rejected certain complaints of

the first applicant by a partial decision.  As to his remaining

complaints, the Commission decided to give notice of the application

to the respondent Government and to invite them, in accordance with

Rule 42 para. 2 (b) of the Rules of Procedure, to submit observations

in writing, inter alia, on the first applicant's complaint that two

professional judges had taken part in his trial who previously had

acted as investigating judges and on the complaint of both applicants

relating to the censorship of their correspondence.

11.     The Government submitted their observations on 27 July 1987.

The applicants submitted observations in reply on 23 September 1987.

12.     On 16 December 1987 the Government submitted further

information concerning the Supreme Court's decision of 20 October 1987

on the Attorney General's plea of nullity for safeguarding the law.

On 3 February 1988 the applicant submitted comments on this decision.

13.     On 15 December 1988 the Commission rejected certain further

complaints of both applicants by a partial decision while reserving the

decision concerning the first applicant's complaints relating to the

criminal proceedings against him and his subsequent detention, and the

complaints of both applicants concerning the censorship of a letter.

In this respect the Commission decided to invite the parties, in

accordance with Rule 42 para. 3 (b) of its Rules of Procedure, to

submit further observations orally at a hearing.

14.     At the hearing on 8 May 1989 the Government were represented

by their Agent, Ambassador Helmut Türk, assisted by Mr.  Wolf Okresek,

Federal Chancellery, and Ms.  Irene Gartner, Federal Ministry of

Justice, Advisers.  The applicants were represented by Mr.  Reinhard

Peters, assisted by Ms.  Anne Marie Schwarz, Adviser.

15.     At the close of the hearing, the Commission declared the

complaints summarised in paragraphs 5 - 8 above admissible while

rejecting the remaining complaints.

16.     The text of the final decision on admissibility was approved

by the Commission on 13 July 1989 and communicated to the parties on

29 August 1989.  They were invited to submit supplementary observations

on the merits before 16 October 1989.

17.     The Government submitted such observations on 16 October 1989

and the applicants on 7 November 1989.

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

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement.  Negotiations were conducted on this issue between August 1989

and April 1990.  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

19.     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.  S. TRECHSEL, Acting President

                  F. ERMACORA

                  E. BUSUTTIL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             Mr.  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

20.     The text of this Report was adopted on 11 October 1990 and

is now transmitted to the Committee of Ministers of the Council of

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

21.     The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(1)     to establish the facts, and

(2)     to state an opinion as to whether the facts found

        disclose a breach by the State concerned of its

        obligations under the Convention.

22.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decisions on the admissibility of the application are attached as

Appendices II - IV.

23.     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 criminal proceedings against the first applicant

        1.  The investigation

24.     On the basis of a warrant of arrest issued by the Regional

Court (Landesgericht) of Klagenfurt on 12 November 1982, the first

applicant was arrested in Klagenfurt on 20 November 1982.  The warrant

was based on the suspicion of his having committed various criminal

offences (aggravated fraud, professional burglary, forgery and

suppression of documents, professional receiving of stolen goods, and

illegal possession of firearms) and it referred to a danger of

absconding, of collusion and of repetition under Section 175 para. 1,

sub-paras. 2-4 of the Code of Criminal Procedure (Strafprozessordnung).

25.     On 21 November 1982 the first applicant was brought before an

investigating judge in accordance with Section 179 para. 1 of the Code

of Criminal Procedure, i.e. the judge on duty (Journalrichter) Dr.  A.

He informed the first applicant of the reasons for the arrest.  The

first applicant denied having committed the above criminal offences,

except the offence of illegal possession of firearms.  The merits of

the case were not discussed.

26.     Also on 21 November 1982 the investigating judge competent for

the first applicant's case, Dr.  K., ordered the transfer of the first

applicant to the Vienna Regional Court for Criminal Affairs

(Landesgericht für Strafsachen) which had issued a warrant of arrest

against this applicant on 20 November 1982, on the suspicion of his

having participated in an armed robbery in Vienna.   The Klagenfurt

proceedings were joined to those of the Regional Court of Vienna.

However, on 20 January 1983 they were severed again and referred back

to the Regional Court of Klagenfurt.  The first applicant was detained

in the remand prison of the Vienna Regional Court from 22 November 1982

until 24 February 1983.

27.     On 25 February 1983 the investigating judge of the Regional

Court of Klagenfurt who was now competent, Dr.  St., opened a judicial

investigation (Voruntersuchung) against the first applicant and

ordered his detention on remand.  The warrant of arrest based on

Section 180 para. 1 and para. 2 sub-paras. 1 - 3 (danger of absconding,

collusion and repetition) was notified to the applicant by judge

Dr.  St. on the same day.

28.     On 23 May 1983 the first applicant challenged judge Dr.  St.

on the ground of bias.  On 26 May 1983 the President of the Regional

Court of Klagenfurt rejected this challenge as being unsubstantiated.

29.     On 10 June 1983 the investigating judge made a request under

Section 193 para. 2 of the Code of Criminal Procedure for the

prolongation of the first applicant's detention on remand beyond the

statutory time-limit of six months.  On 16 June 1983 the Graz Court of

Appeal (Oberlandesgericht) acceded to the request, authorising

detention for a maximum period of nine months, having regard to the

volume and complexity of the judicial investigation.  On 7 July 1983

the Review Chamber (Ratskammer) of the Regional Court of Klagenfurt

ordered the first applicant's continued detention, on the grounds of

danger of absconding and repetition.  The first applicant lodged an

appeal against this decision.

30.     On 19 July 1983 the competent public prosecutor submitted an

indictment charging the first applicant with the offences of receiving

stolen goods and illegal possession of firearms.  He requested that

the remaining charges be severed for further investigation (two of

those charges - suppression of documents and one case of fraud - were

subsequently not pursued).  The first applicant raised an objection

(Einspruch) against the indictment.

31.     Pending the decision on this objection, the investigating

judge requested a further prolongation of the first applicant's

detention on remand.  The Graz Court of Appeal decided on 18 August 1983

to authorise the applicant's detention on remand for a maximum period

of ten months and to reject his appeal against his continued detention

and his objection against the indictment.

        2.  The trial

32.     The trial opened on 14 September 1983 before the Regional

Court of Klagenfurt, sitting with two professional judges (Drs.  K.

and A.) and two lay assessors (Schöffengericht).

33.     The presiding judge, Dr.  K., had previously, on 31 August and

1 September 1983, raised with the first applicant the fact that the

two professional judges had acted as investigating judges (Dr.  K. had

been the competent investigating judge until 31 December 1982, Dr.  A.

had been the judge on duty at the applicant's first hearing on

21 November 1982).  Dr.  K. informed the first applicant that the two

judges were disqualified from participating in the trial by virtue of

Section 68 para. 2 under sanction of nullity as provided for in

Section 281 para. 1 No. 1 of the Code of Criminal Procedure.

34.     Following Dr.  K.'s suggestion the first applicant declared

that he would not lodge a plea of nullity on this account; he further

observed that he did not consider it necessary to consult his defence

counsel on this question.

35.     The trial was held with the participation of the above two

professional judges on 14 September and 7 October 1983.

36.     The defence did not object to the composition of the Court.

In particular, it did not invoke Section 68 para. 2 of the Code of

Criminal Procedure on the ground that the judges, Drs.  K. and A., had

previously acted as investigating judges.

37.     Nor did the defence draw the Court's attention to the fact that

the first applicant had in the meantime requested the institution of

criminal proceedings against the third investigating judge Dr.  St.,

accusing him of abuse of public power in connection with the

investigation of his case.  In those proceedings the applicant had, on

23 September 1983, challenged all judges of the Regional Court as

being biased.  At the trial on 7 October 1983 the defence did not

mention that the challenge, which also concerned Drs.  K. and A., had

not yet been determined.

38.     A decision on that challenge was only taken on 10 November

1983 by the Graz Court of Appeal.  As all judges of the Regional Court

of Klagenfurt, being colleagues of Dr.  St., had declared themselves to

be biased in the proceedings against the latter judge, the challenge

was allowed and the case referred to the Regional Court of Leoben.  The

Review Chamber of that Court later refused the opening of criminal

proceedings against Dr.  St.

39.     On 7 October 1983, the Regional Court of Klagenfurt convicted

the first applicant of qualified receiving of stolen goods under

Section 164 para. 3 of the Penal Code (Strafgesetzbuch) and of illegal

possession of firearms under Section 36 of the Firearms Act

(Waffengesetz).  It sentenced him to three years' imprisonment.

        3.  The appeal proceedings

40.     The first applicant lodged a plea of nullity (Nichtigkeits-

beschwerde) against his conviction and appealed from the sentence

(Berufung).  These remedies were rejected by the Supreme Court

(Oberster Gerichtshof) on 29 February 1984.

41.     The Supreme Court, dismissing the plea of nullity, held

that the judgment was not attended with nullity because of the

participation of biased judges.  Insofar as the first applicant had

referred to his undetermined challenge of all judges of the Regional

Court prior to the trial, the Supreme Court observed that he had not

requested a decision at the trial in which case the Regional Court

would have been obliged to take an interim decision.  The fact that

the challenge of the whole Regional Court of Klagenfurt was

subsequently allowed in the criminal proceedings against the third

investigating judge, Dr.  St., did not justify the conclusion that the

judges of the Regional Court were also biased in the criminal

proceedings against the applicant.

42.     In the Supreme Court's view the first applicant could not

invoke the fact that the two professional judges, Drs.  K. and A.,

should, in principle, have been excluded from the trial by virtue of

Section 68 para. 2 of the Code of Criminal Procedure because they had

been involved in the investigation, since he had prior to the trial

expressly renounced challenging these judges.

43.     The Supreme Court further rejected the first applicant's

complaints concerning alleged inconsistencies of the judgment.  It

also confirmed the first applicant's sentence, rejecting his appeal

(Berufung).

B.      Censorship of correspondence between the two applicants

        1.  The measure taken by the investigating judge

44.     During their detention on remand the applicants corresponded

with each other.  At some time in the early summer of 1983 the

investigating judge censored a letter addressed by the second

applicant to the first applicant by crossing out and making illegible

certain passages.

45.     These passages were not reconstructed in the subsequent

proceedings, but according to the applicants they contained critical

remarks on prison officers in the following terms:

(German)

        "Ich frage mich, ob in diesem Affenhaus noch jemand

        normal ist ....  Im Leben sind es Würstchen, hier sind

        sie, glauben sie, Götter.  Einige von den Beamten sind

        ja Gäste wie wir.  Dauernd wird hier spioniert bei den

        Frauen, züchtige Spanner, dieses Affenpack!  Ich hasse

        es so!"

(Translation)

        "I ask myself whether there is anybody left in this

        ape house who is still normal ...  In normal life they

        are miserable creatures, here they think they are gods.

        Some of the officers are guests like us.  They are for

        ever spying on the women, these apes are proper peeping

        toms!  I hate it!"

        2.  The complaints procedure before the Review Chamber

46.     The second applicant complained to the Review Chamber of the

Regional Court.  She claimed that the form of censorship was unlawful as

Section 187 para. 2 of the Code of Criminal Procedure provided only

for the stopping of letters but not for making them illegible.  She

further submitted that censorship was permissible only in respect of

letters likely to endanger the aim of the detention, or letters

suspected of involving a criminal offence except an offence liable to

prosecution only at the request of the injured person.  In the

applicant's view the relevant passages in the letter neither

endangered the aim of her detention nor did they constitute a public

prosecution offence.

47.     The Review Chamber, after having heard the prosecution and

having obtained a report of the investigating judge, rejected the

second applicant's complaint on 26 July 1983.  The second applicant

did not participate in these proceedings which were conducted in

camera.

48.     In its decision, the Review Chamber observed that the

crossing out of certain passages in the letter was a less severe

measure than its stopping to which the investigating judge was

entitled by virtue of Section 187 para. 2 of the Code of Criminal

Procedure.  This measure was therefore implied in the investigating

judge's powers and did not infringe the second applicant's rights.

The censorship had been justified as the passages in question, being

described by the investigating judge in her report on the incident

as "jokes of an insulting nature against prison officers", had

constituted the offence of defamation (üble Nachrede) of officials on

duty (Section 111 para. 1 in conjunction with Section 117 para. 2 of

the Penal Code), an offence which could be taken as the basis for a

measure under Section 187 para. 2 of the Code of Criminal Procedure.

        3.  The Attorney General's plea of nullity for

           safeguarding the law

49.     Following the communication of the present application to the

respondent Government, the Attorney General's office (Generalprokuratur)

lodged a plea of nullity for safeguarding the law (Nichtigkeits-

beschwerde zur Wahrung des Gesetzes) in respect of the above decision

of the Review Chamber of the Regional Court of Klagenfurt.

50.     It was claimed that the decision was unlawful because the

applicant's remarks could not possibly have constituted an offence

against the honour of prison officers "on duty" ("während der Ausübung

seines Amtes oder Dienstes"), i.e. a public prosecution offence to be

prosecuted with the consent of the officials concerned (Section 117

para. 2 of the Code of Criminal Procedure), because such an offence

could only be committed "from person to person" and not in a letter.

If there was an offence against the honour of prison officers, it was

liable to prosecution only at the request of the injured persons and

thus did not justify a measure of censorship under Section 187 para. 2

of the Code of Criminal Procedure.

51.     Unlawfulness of the measure was further claimed on the ground

that the latter provision merely authorised the stopping of a letter,

but not the crossing out of certain passages therein.

        4.  The Supreme Court's decision on the plea of nullity

52.     On 20 October 1987 the Supreme Court, after having held a

public hearing in the presence of a representative of the Attorney

General's office, but in the absence of the second applicant, rejected

the argument that there was no public prosecution offence, but found a

violation of the law as to the form of censorship.

53.     Assuming that the crossed-out passages actually contained

"jokes of an insulting nature against prison officers" as stated by

the investigating judge, the Supreme Court found it justified to

suspect the second applicant of an offence, namely the offence of

insult (Beleidigung) under Section 115 of the Penal Code (rather than

defamation under Section 111).  If committed against an official on

duty this offence was to be prosecuted ex officio (with the consent of

the official in question) under Section 117 para. 2 of the Penal Code.

54.     In the present case the possible offence would have been

committed against prison officers "on duty" because the offence would

have been completed by handing the letter to a prison officer for the

purpose of submitting it to the investigating judge and this

forwarding procedure would necessarily have created the possibility

of the insulting contents of the letter becoming known to several

prison or court officers on duty.  This implied that Section 117

para. 2 of the Penal Code was applicable and the measure therefore was

covered by Section 187 para. 2 of the Code of Criminal Procedure.

55.     However, this provision only authorised the investigating

judge to stop a letter, but not to cross out passages.  In this latter

respect the investigating judge and the Review Chamber had acted

against the ratio legis.

56.     The investigating judge had not taken a "less severe measure"

implied in her powers under Section 187 para. 2, but a different

measure which interfered with the interests of the prosecution

authorities and of the officials concerned to have criminal proceedings

instituted against the second applicant on account of her remarks in

the letter.

57.     The Supreme Court concluded that it was therefore sufficient

to state that the law had been violated.  The second applicant was not

aggrieved and therefore could not complain of the rejection of her

appeal by the Review Chamber.

III.  OPINION OF THE COMMISSION

A.      Complaints declared admissible

58.     The following complaints were declared admissible:

        a) the complaint of the first applicant that the Regional

           Court which tried his case was not an "impartial tribunal

           established by law";

        b) the complaint of both applicants that the censorship of the

           letter addressed by the second applicant to the first

           applicant and its reading by prison officers were unjustified.

B.      Points at issue

59.     The Commission must therefore examine:

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

(Art. 6-1) of the Convention in that at the first applicant's trial

the Regional Court was not "established by law" and not "impartial";

        b) whether there has been a violation of Article 8 (Art. 8)

of the Convention in that there was an unjustified interference with

the   applicants' right to respect for their correspondence by the

censorship of the second applicant's letter to the first applicant

and the absence of safeguards against its being read by other persons

than the investigating judge.

C.      As to the alleged violation of Article 6 para. 1 (Art. 6-1)

        of the Convention in the first applicant's case

60.     The first sentence of Article 6 para. 1 (Art. 6-1) reads as

        follows:

"   In the determination 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."

61.     The first applicant claims that at his trial before the Regional

Court of Klagenfurt this provision was violated on essentially three

grounds: the tribunal was not "established by law" because the two

professional judges, having acted as investigating judges, were

disqualified by virtue of Section 68 para. 2 of the Austrian Code of

Criminal Procedure; for the same reason the tribunal furthermore was

not "impartial"; in addition, it was not "impartial" because the

professional judges had been challenged in a criminal case brought by

the first applicant against the third investigating judge and had

declared themselves biased in that case, which, in the first applicant's

submission, meant that they were also biased in his own case.

        1. "Tribunal established by law"

62.     The Commission must first deal with the applicant's claim that

at his trial the Regional Court was not "established by law".

63.     The words "established by law" primarily refer back to the

national law on the organisation of the courts of justice.  In principle,

a court cannot be regarded as being "established by law" if in a

particular case the provisions as to its lawful composition have not

been complied with.

64.     Section 68 para. 2 of the Austrian Code of Criminal Procedure

stipulates inter alia that a judge who has acted as an investigating

judge in the same case shall be disqualified from participating in the

trial and judgment.

65.     It is not disputed that, by virtue of this provision, two

judges, including the presiding judge, should not have participated in

the first applicant's trial because they had previously acted as

investigating judges in this case.  Under Austrian law, the scope of

their actual involvement in the preliminary investigation was

irrelevant.  The simple fact of their having been entrusted with the

function of investigating judges at some stage of the proceedings

disqualified them.  This, in principle, entailed the sanction of

nullity of the proceedings under Section 281 para. 1 (1) of the Code

of Criminal Procedure.

66.     Under this provision a plea of nullity may be filed, inter

alia, if a disqualified judge has participated in the trial;  however,

in cases where the disqualification has become known to the party

before or at the trial, this circumstance must have been raised

immediately at the trial.

67.     The first applicant had been informed before the trial by the

presiding judge that both the presiding judge and another judge were

disqualified.  On the suggestion of the presiding judge he waived his

right to lodge a plea of nullity on this account.  He did not raise

this issue of disqualification at the trial nor subsequently in his

plea of nullity.  The Supreme Court noted that it could not deal with

the matter in view of the above waiver.

68.     The Government argue that in these circumstances the wrongful

composition of the Regional Court must be regarded as remedied under

Austrian law.  They claim that the Regional Court was "established by

law", the applicant having accepted its composition.

69.     The first applicant claims that he can still invoke the

unlawful composition of the Court as the waiver of his right to lodge

a plea of nullity was obtained in an unlawful and unfair procedure.

70.     The first applicant regards the procedure followed by the

presiding judge of the Regional Court as unlawful because he should

primarily have recognised his disqualification of his own motion in

the procedure under Section 70 of the Code of Criminal Procedure,

informing the president of the Regional Court thereof, and refraining

from any further acts in the case by virtue of Section 71.  A further

unlawfulness is seen in the fact that the presiding judge discussed

the matter with the first applicant in person, in the absence of the

latter's defence counsel.

71.     The first applicant also considers the procedure followed by

the presiding judge as unfair.  The suggestion that a plea of nullity

be waived on the ground of disqualification was allegedly made to the

applicant in a situation where he could hardly contradict the

presiding judge.  Moreover, undue pressure was allegedly exercised on

the applicant by his being told that the trial would have to be

postponed (and his detention on remand prolonged) if he did not accept

the Court's composition.  Finally, he claims that he was misled about

the available remedies by not being told that it would still have been

open to him to raise the disqualification of the judges at the trial

and, having done so, subsequently in a plea of nullity.

72.     In its final decision on admissibility (Appendix IV, at p. 58),

the Commission recalled that a person may validly waive invoking the

guarantees under Article 6 of the Convention, but reserved its

position concerning the validity of the waiver in the present case.

73.     It now notes that the Supreme Court had no doubts concerning

the validity of this waiver under Austrian law.  However, it dealt

with this issue only by way of an obiter dictum and did not examine in

detail the procedure followed by the Regional Court's presiding judge

on 31 August and 1 September 1983 (cf. paras. 33 - 34 above).  It also

appears that before the Supreme Court the applicant was not heard on

this question.  It therefore remains open to doubt whether the Supreme

Court's decision can be seen as a full confirmation of the lawfulness

under Austrian law of the presiding judge's procedure.

74.     In any event the Commission considers that insofar as the

waiver also affected the first applicant's right under Article 6

para. 1 (Art. 6-1) of the Convention to a "tribunal established by

law", it cannot be judged exclusively by reference to the legal

situation in Austria.  In order to be effective for Convention

purposes, a waiver of procedural rights requires minimum guarantees

commensurate to its importance.

75.     In the present case, the presiding judge, when discussing his

own and another judge's disqualification with the first applicant,

disregarded important procedural principles which are also reflected

in Austrian law.

76.     First, he acted himself although he was, according to his own

admission, in principle disqualified from doing so.  Under Section 71

of the Code of Criminal Procedure he should have refrained from any

acts except acts of such urgency that they could not be postponed and

carried out by a different judge.  It has not been shown that in the

present case there existed such an urgency.

77.     Secondly, the presiding judge failed to inform the president

of the Court immediately of his disqualification as required under

Section 70 of the above Code.  Instead of taking measures aimed at

giving effect to his and his colleague's disqualification, he took the

opposite course with a view to ensuring their participation in the

trial despite their disqualification.

78.     Thirdly, in order to achieve this aim, the presiding judge

incited the applicant to waive his right to a remedy which would

otherwise have been available to him.  It may be left open whether in

this context undue pressure was exerted on the first applicant or

whether he was led into error about the legal situation.  It suffices

to note that the applicant was put into a difficult psychological

situation when he was called to appear before the presiding judge

without the assistance of his legal defence counsel, and required to

give a reply immediately.  In order to preserve his rights, he would

have had to tell the presiding judge that he did not agree with him

that the disqualification was merely a formal matter and did not

justify a fear of substantive bias.

79.     It may well be that a waiver declared by the applicant in the

presence of his lawyer before a judge who was not himself disqualified

would have to be regarded as binding also for the purposes of the

Convention law.  The Commission considers, however, that having regard

to the particular circumstances in which the applicant declared his

waiver, it cannot be held to be effective for the purposes of the

Convention.

80.     Since the composition of the Regional Court at the trial was

uncontestedly unlawful, and as the applicant's waiver of his right to

contest this unlawfulness was ineffective for the above-mentioned

reasons, it follows that he did not enjoy the guarantee of a "tribunal

established by law" provided for by Article 6 para. 1 (Art. 6-1) of the

Convention.

        2. "Impartial tribunal"

81.     The first applicant further claims that because of the

participation of the disqualified judges the Regional Court was not

"impartial".

82.     The Government contest this, claiming that the impartiality of

the judges in question could not be impaired having regard to the very

limited functions which they exercised as investigating judges in the

first applicant's case.  They could not have given the applicant the

impression that they had "a pre-formed opinion which [was] liable to

weigh heavily in the balance at the moment of the decision" (Eur.

Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86,

p. 16 para. 29).

83.     The Commission recalls that, according to the De Cubber judgment,

in determining impartiality "a distinction should be drawn 'between a

subjective approach, that is endeavouring to ascertain the personal

conviction of a given judge in a given case, and an objective

approach, that is determining whether he offered guarantees sufficient

to exclude any legitimate doubt in this respect'" (ibid. p. 13, para.

24, with a reference to the Piersack judgment of 1 October 1982,

Series A no. 53, p. 14 para. 30).  While the personal impartiality of

a judge is to be presumed until there is proof to the contrary (ibid.

p. 14, para. 25), the objective approach can be reflected, inter alia,

in the applicable provisions of the national law disqualifying a judge

from exercising certain functions: they manifest the law-makers'

"concern to make ... courts free of any legitimate suspicion of

partiality" (ibid. p. 16 para. 29).

84.     It appears from the Court's De Cubber judgment that where a

judge who has previously acted as investigating judge later

participates in the judgment legitimate doubts may arise as to his

impartiality.  The same view is reflected in Section 68 para. 2 of the

Austrian Code of Criminal Procedure which disqualifies a judge from

acting as a trial judge in such circumstances.

85.     The Commission is therefore of the opinion that in the

present case the Regional Court, as a result of the participation of

the two disqualified judges, must be considered to have lacked

impartiality within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.  It is irrelevant in this context whether, subjectively,

the two judges concerned actually had pre-formed opinions concerning

the case as the first applicant claims (cf. mutatis mutandis,

No. 11662/85, Oberschlick v. Austria, Comm.  Report 14.12.89,

paras. 100 - 103).

86.     The applicant has further claimed that the Regional Court was

not "impartial" because the trial took place although he had

previously challenged the judges for bias in the criminal case which

he had brought against the investigating judge St. and that challenge

was still to be determined.  The judges had declared themselves biased

in the case against their colleague, and the applicant submits that,

for the same reason, they must also have been biased in his own case.

87.     Having regard to its above finding that the Court was not

impartial for a different reason (cf. para. 85), the Commission

considers that it is not necessary to examine this additional issue of

bias.

        Conclusion

88.     The Commission concludes, by a unanimous vote, that there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in

that at the  first applicant's trial the Regional Court was not

"established by  law" and not "impartial".

D.      As to the alleged violation of Article 8 (Art. 8) of the

        Convention by the censorship of the applicants' correspondence

89.     Article 8 (Art. 8) of the Convention reads as follows:

"1.      Everyone has the right to respect for his private

and family life, his home and his correspondence.

2.      There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

90.     The applicants claim that this provision has been violated by

the censorship of a letter which the second applicant addressed to the

first applicant in the summer of 1983 when both were detained on

remand in the prison of the Regional Court of Klagenfurt.

        1.  Scope of the interference (Article 8 para. 1) (Art. 8-1)

91.     It is not contested that Article 8 (Art. 8) of the Convention is

applicable and that there has been an interference with both

applicants' right to respect for their correspondence, as guaranteed

by paragraph 1 (Art. 8-1) of this Article.  In fact, the letter in

question was subjected to a measure of censorship by the investigating

judge which was subsequently confirmed by the Review Chamber and the

Supreme Court.  In addition, there was an interference with the

confidentiality of the letter in that it was apparently read not only

by the investigating judge entrusted with the function of carrying out

the censorship of the applicants' correspondence, but also by other

court or prison officials on duty.  At least this was assumed in the

Supreme Court's decision of 20 October 1987.

92.     Insofar as the applicants had also originally complained of

the form of the censorship, claiming that the deletion of passages was

not in accordance with the law, they obtained redress by the said Supreme

Court decision.  It established that the deletion of passages was

unlawful and that the letter should instead have been retained by the

investigating judge.  As the Commission observed in the final decision

on admissibility (Appendix IV, at p. 61) the applicants can no longer

claim to be victims of a violation of their Convention rights as

regards the particular form of censorship exercised in their case.

93.     The issues which remain before the Commission are therefore

the question whether the censorship of the letter was in substance

justified, and the further question whether the reading of the letter

by prison officials was justified.  These issues must be determined

under Article 8 para. 2 (Art. 8-2) of the Convention.

        2.  Justification of the interference (Article 8 para. 2)

            (Art. 8-2)

94.     In order to be justified under Article 8 para. 2 (Art. 8-2)

of the Convention, any interference with the exercise of the rights

guaranteed by paragraph 1 of this Article must

        - be "in accordance with the law";

        - pursue one or more of the legitimate purposes

          enumerated in Article 8 para. 2 (Art. 8-2) ;  and

        - be "necessary in a democratic society" in order

          to achieve the purpose(s) in question.

        a) "In accordance with the law"

95.     The measure of censorship complained of was based on

Section 187 para. 2 of the Austrian Code of Criminal Procedure which

stipulates inter alia that letters of remand prisoners shall be

withheld if they are likely to prejudice the purpose of detention, or

if they give rise to the suspicion that through them an offence is

being committed which is not an offence to be investigated solely at

the request of the injured party.

96.     Austrian criminal law provides for three types of offences:

private prosecution offences (Privatanklagedelikte) which clearly come

within the exception stipulated in Section 187 para. 2 and in respect

of which censorship is therefore inadmissible; public prosecution

offences (Offizialdelikte) to which the exception in Section 187 para. 2

clearly does not apply and which therefore may give rise to a measure of

censorship; and offences liable to public prosecution with the

consent of the injured party (Ermächtigungsdelikte) in respect of

which it was disputed in the domestic proceedings whether or not they

come within the scope of the exception.  The latter question was

decided by the Supreme Court in the sense that the exception did not

apply.  Having regard to this interpretation of the law by the highest

Austrian jurisdiction, the Commission accepts that it is "in

accordance with the law" to impose censorship in such cases.

97.     The question nevertheless remains whether or not the Austrian

authorities rightly assumed the existence of an offence liable to

public prosecution with the consent of the injured party.  Offences

against the reputation of a person are generally private prosecution

offences (Section 117 para. 1 of the Penal Code) and liable to public

prosecution with the consent of the injured party only if committed

against officials on duty (Section 117 para. 2 of the Penal Code).  In

the present case the Supreme Court assumed that the offence of insult

had been committed against officials on duty (Section 115 in

conjunction with Section 117 para. 2 of the Penal Code) because the

contents of the second applicant's letter must have become known to

several prison or court officers during the procedure in which the

letter was forwarded to the investigating judge.

98.     The applicants contest that it was lawful for the prison or

court officers concerned to read the letter.  They refer to the

practice endorsed by the Federal Ministry of Justice since 1982

according to which the censorship of letters of remand prisoners is

the exclusive task of the investigating judge (Section 188 of the Code

of Criminal Procedure) and the reading of such letters by other

persons is inadmissible.

99.     There may indeed be doubts concerning the lawfulness of the

application of Section 115 in conjunction with Section 117 para. 2 of

the Penal Code in the present case.  The reading of the second

applicant's letter by prison and court officers, as assumed in the

Supreme Court's decision, may have been an unlawful measure in itself

and may also have affected the lawfulness of the censorship of the

letter, because this would only have been possible if several officers

had read the letter.

100.    Ultimately, the Commission may leave this point undecided

because the possibility for the prison or court officers other than

the investigating judge to read the letter, and its subsequent

censorship by the investigating judge, were unjustified for the

reasons stated below.

        b) Legitimate purpose

101.    The Government claim that the censorship of the second

applicant's letter pursued legitimate purposes recognised in Article 8

para. 2 (Art. 8-2) of the Convention, namely "the prevention of

disorder or crime", and "the protection of the reputation and rights

of others", i.e. of the prison officers concerned.

102.    The Commission notes that the aim of the censorship was the

prevention of a criminal offence against the reputation of prison

officers.  It therefore accepts that it pursued the purposes of "the

prevention of crime" and "the protection of the reputation and the

rights of others".  The "prevention of disorder" in the prison could

also be relevant but, having regard to the structure of Section 187

para. 2 of the Code of Criminal Procedure, this was apparently not the

specific purpose invoked by the competent domestic authorities.

103.    The Commission further notes that the Government did not

explain the purpose of authorising other persons than the

investigating judge to read the second applicant's letter.  In this

respect it finds none of the purposes enumerated in Article 8 para. 2

(Art. 8-2) applicable.  Insofar as prison officers were entrusted with

the function of controlling the mail as to the enclosure of

unauthorised objects, for the "prevention of disorder" in the prison,

this could be effected without reading the letter.  Reading therefore

did not pursue a legitimate purpose.

        c) "Necessary in a democratic society"

104.    The Government claim that the censorship of the second

applicant's letter was "necessary in a democratic society" in

order to achieve the above aims, in particular that it was not

disproportionate to those aims.  They invoke the State's margin of

appreciation in this respect.  The applicants contest the Government's

submissions.

105.    The Commission recalls that in the domestic proceedings the

contents of the letter were not reconstructed.  The Supreme Court's

legal qualification of the offence allegedly committed by the second

applicant was merely based on the information provided by the

investigating judge that the letter had contained "jokes of an

insulting nature against prison officers".  The Supreme Court

furthermore merely assumed, without taking any evidence in this

respect, that the contents of the letter had come to the knowledge of

several prison or court officers on duty.  The second applicant was

not heard throughout the procedure before the investigating judge, the

Review Chamber and the Supreme Court.

106.    The Commission, which must take the Supreme Court's decision

as the starting point of its examination, finds that this decision

rests on a weak basis as regards the relevant facts.  This is true

even if one considers that the Supreme Court was not called upon to

establish the existence of the criminal offence in question, but only

to determine whether there could be a reasonable suspicion of such an

offence.

107.    Secondly, the offence assumed by the Supreme Court involved an

element of publicity.  For the application of Section 115 in

conjunction with Section 117 para. 2 of the Penal Code it was

necessary that the insulting remarks against officials on duty had

been made publicly or before several persons.  The second applicant's

letter, however, was not addressed to the public nor intended to be

brought to the notice of other persons than the addressee.  It was a

piece of private correspondence meant to be read only by the first

applicant, being a close friend of the second applicant.  She also had

to presume that it would be read by the investigating judge entrusted

with censoring her mail, but not by anybody else.  In this context the

Commission refers to its above finding (para. 103) that the reading of

the letter by other persons than the investigating judge, even if it

should have been lawful under Austrian law, did not pursue a

legitimate purpose recognised in the Convention.  In such

circumstances the Commission cannot find that the censorship of the

letter was necessary on the ground that it justified the suspicion of

an offence which, by its nature, could only be committed in public.

108.    Even if one takes into account the text of the letter as

submitted to the Commission (cf. para. 45 above), the censorship does

not appear to have served a "pressing social need" (cf.  Eur.  Court

H.R., Silver and Others judgment of 25 March 1983, Series A no. 61,

p. 38 para. 97).  As the Court recognised (ibid. pp. 38 - 39 para. 99,

in particular sub-para. (c) read in conjunction with para. 64 on p. 26

of the judgment), it cannot be regarded as "necessary in a democratic

society" to stop a private letter containing "material deliberately

calculated to hold the prison authorities up to contempt".

109.    In the present case, the gist of the second applicant's

remarks which were found to be objectionable was a complaint about

prison conditions; in particular she complained that female inmates of

the prison were observed in their cells by male prison staff in an

indecent manner.  It is true that the second applicant used some

strong expressions ("Affenpack", "Spanner") in this context, but the

Commission recalls that "the use of strong wording may itself be a

means of disapproval of a particular behaviour and should be

restricted only where the terms used are incommensurate to the

legitimate object of the intended criticism" (cf.  No. 9815/82, Lingens

v.  Austria, Comm.  Report 11.10.84, para. 81).  The Commission

considers that this principle, formulated in relation to a restriction

of a publication (Article 10 of the Convention) (Art. 10), is all the

more valid  where the restriction of a private letter under Article 8

(Art. 8) of the Convention is concerned.  The use of the above words

can be explained by an emotional outburst of the second applicant

concerning a situation which she regarded as grave, and they were

not wholly incommensurate to the criticism intended by her.

110.    In sum the Commission finds that the censorship of the second

applicant's letter was disproportionate to its aim and therefore not

"necessary in a democratic society".

111.    The Commission is not called upon to examine whether the

reading of this letter by persons other than the investigating judge

was "necessary in a democratic society" as in any event this measure

did not pursue a legitimate purpose recognised in the Convention (cf.

para. 103 above).

        Conclusion

112.     The Commission concludes, by ten votes to one, that there

has been a violation of Article 8 (Art. 8) of the Convention in that

there was an unjustified interference with the applicants' right to

respect for their correspondence by the censorship of the second

applicant's letter to the first applicant and the absence of

safeguards against its being read by other persons than the

investigating judge.

E.      Recapitulation

113.    The Commission concludes, by a unanimous vote, that there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in

that at the  first applicant's trial the Regional Court was not

"established by law" and not "impartial" (para. 88).

114.     The Commission concludes, by ten votes to one, that there

has been a violation of Article 8 (Art. 8) of the Convention in that

there was an unjustified interference with the applicants' right to

respect for their correspondence by the censorship of the second

applicant's letter to the first applicant and the absence of

safeguards against its being read by other persons than the

investigating judge (para. 112).

Secretary to the Commission           Acting President of the Commission

     (H.C. KRÜGER)                              (S. TRECHSEL)

                                APPENDIX I

HISTORY OF PROCEEDINGS

Date                            Item

______________________________________________________________________

23 September 1983               Introduction of the application

31 January 1984                 Registration of the application

Examination of Admissibility

13 May 1987                     Commission's decision to reject

                                certain complaints and invite the

                                Government to submit observations

                                on the remaining complaints

27 July 1987                    Government's observations

23 September 1987               Applicants' observations in reply

16 December 1987                Further information submitted by

                                the Government

3 February 1988                 Applicants' comments

15 December 1988                Commission's decision to reject

                                certain further complaints and to

                                hold a hearing

8 May 1989                      Oral hearing, Commission's deliberations

                                and decision to declare the remainder

                                of the application in part admissible

                                and in part inadmissible

13 July 1989                    Commission approves text of decision

                                on admissibility

Examination of the merits

29 August 1989                  Decision on admissibility transmitted

                                to the parties

16 October 1989                 Government's observations on the merits

7 November 1989                 Applicants' observations on the merits

10 February 1990  )             Commission's consideration of the

12 May 1990       )             state of proceedings

2 October 1990                  Commission's deliberations on the

                                merits and final votes.

11 October 1990                 Adoption of the Report