Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22541/93

by Bernhard MARTE and Walter ACHBERGER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 August 1993 by

Bernhard MARTE and Walter ACHBERGER against Austria and registered on

27 August 1993 under file No. 22541/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

1 February 1995, and the observations in reply submitted by the

applicants on 5 October 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Austrian citizens born in 1970. The first

lives in Wolfurt and the second lives in Lauterach. They are

represented before the Commission by Mr. Wilfried Ludwig Weh, a lawyer

practising in Bregenz.

The facts of the case as submitted by the parties may be

summarised as follows.

On 23 August 1990 the applicants were convicted by the Feldkirch

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

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

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

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

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

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

Administrative criminal proceedings were brought against both

applicants. On 13 September 1990 the first applicant was fined AS

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

the peace by conduct likely to cause annoyance, contrary to Section IX

(1)(1) of the Introductory Law of the Administrative Procedure Laws,

by his behaviour before his arrival of the police at the summer

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

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

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

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

persons.

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

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

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

the Introductory Law of the Administrative Procedure Laws, by his

behaviour before the arrival of the police at the summer festival, (ii)

offending public decency by insulting the policemen, contrary to

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

named policeman in the presence of other persons, contrary to

Section IX (1)(1).

The applicants appealed to the Vorarlberg Security Authority

(Landessicherheitsdirektion) in respect of the penal orders under the

Introductory Law, and to the Vorarlberg Regional Government

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

(Policing) Act.

The applicants' appeals to the Vorarlberg Security Authority in

respect of the penal orders under the Introductory Law were dismissed

on 5 August 1991 and the penal orders were confirmed.

The Constitutional Court (Verfassungsgerichtshof) declined to

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

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

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

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

Court referred to the declaration made by Austria on ratifying that

Protocol. It noted that the declaration had the force of

constitutional law, and found that the constitutional complaint had no

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

excluded from the jurisdiction of the Administrative Court

(Verwaltungsgerichtshof).

The Administrative Court dismissed the second applicant's

administrative complaint on 25 January 1993 (received by the

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

administrative law provided that one offence should not be prosecuted

twice in administrative proceedings, but continued that no provision

of law excluded the prosecution of administrative offences where

criminal proceedings had taken place. The first applicant's

administrative complaint was dismissed on 22 March 1993 (received by

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

Court referred to its decision of 25 January 1993.

The applicants' appeals to the Vorarlberg Regional Government in

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

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

slightly.

The applicants' constitutional complaints against the decisions

of the Vorarlberg Regional Government were included in the

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

constitutional complaints.

The Administrative Court dismissed the second applicant's

administrative complaints on 22 February 1993 (received by the

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

administrative law provided that one offence should not be prosecuted

twice in administrative proceedings, but continued that no provision

of law excluded the prosecution of administrative offences where

criminal proceedings had taken place. It considered that the

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

different judgment of human behaviour from Articles 115 (insult:

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

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

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

first applicant's administrative complaint was dismissed on

22 March 1993 (received by the applicants' representative on

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

22 February 1993.

COMPLAINTS

The applicants allege that the scope of review by the

Administrative and Constitutional Courts of the decisions of the

administrative authorities was so narrow that it did not comply with

Article 6 para. 1 of the Convention. They also consider that the

refusal of the Constitutional Court to deal with their constitutional

complaints itself violates Article 6 of the Convention.

The applicants also allege a violation of Article 4 of Protocol

No. 7 to the Convention in that they were convicted in ordinary

criminal proceedings of resisting the forces of the State, and were

then subsequently convicted of administrative offences which alleged

substantially the same misbehaviour.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 August 1993 and registered

on 27 August 1993.

The Government's observations were submitted on 1 February 1995

and the applicants' observations in reply on 5 October 1995.

THE LAW

1. The applicants allege a violation of Article 6 (Art. 6) of the

Convention. The Government consider that the case does not disclose

a violation of Article 6 (Art. 6). They also contest the admissibility

of the whole application for non-observance of the six months time

limit contained in Article 26 (Art. 26) of the Convention.

As to the Government's contention that the application may be

inadmissible for non-compliance with the six months rule, the

Commission notes that the final decisions in the case were

25 January 1993 (in respect of the second applicant's conviction under

the Introductory Law), 22 February 1993 (in respect of the second

applicant's conviction under the Morals (Policing) Act, 22 March 1993

(two decisions, one in respect of the first applicant's conviction

under the Introductory Law, and one in respect of the first applicant's

conviction under the Morals (Policing) Act). The decisions were

received by the applicants' representative on 1 March 1993,

17 March 1993 and 29 April 1993 (two) respectively.

The application was introduced on 23 August 1993, that is less

than six months after the applicants' representative received the first

of the decisions. Accordingly, the Commission is not prevented by the

six months rule from dealing with the case.

The applicants also allege a violation of Article 4 of Protocol

No. 7 (P7-4) to the Convention in that they were convicted twice, that

is, once before the criminal courts and once before the administrative

authorities, in respect of the same behaviour.

In connection with this complaint, the Government do not contest

the admissibility and merits of the application to the extent that it

is on all fours with the case of Gradinger (see now, Eur. Court H.R.,

Gradinger judgment of 23 October 1995, to be published in Series A

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

Introductory Act were concerned with a disturbance of public order,

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

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

is not the same as an outrage on public decency.

The Commission has had regard to the facts of the application,

to the parties' observations, and to the case-law of the European Court

of Human Rights. It finds that the application raises questions under

the Convention which cannot at this stage be rejected as being

manifestly ill-founded, and which require to be determined on the

merits. No other ground of inadmissibility has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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MARTE AND ACHBERGER v. AUSTRIA

MARTE AND ACHBERGER v. AUSTRIA

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