Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20517/92

by C. and E. F.

against Austria

The European Commission of Human Rights (First Chamber)

sitting in private on 13 April 1994, the following members being

present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 6 August 1992

by C. and E. F. against Austria and registered on 21 August 1992

under file No. 20517/92;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, born in 1933 and 1955, respectively, are

German citizens, residing in Güglingen, Germany. In the

proceedings before the Commission, they are represented by Mr.

A. Haslinger, a lawyer practising in Linz.

A. Particular circumstances of the case

In 1989 the applicants, joint owners of a piece of land in

Upper Austria, filed an application with the Windischgarsten

District Court (Bezirksgericht) for the rectification of their

land's frontier. This application was dismissed on 7 August 1991.

On 23 August 1991 the applicants, represented by counsel,

lodged an appeal (Rekurs) with the Steyr Regional Court

(Kreisgericht). Their counsel especially challenged the

assessment of the facts in the District Court's decision and

complained of an alleged bias of the District Court towards the

applicants.

On 23 September 1991 the Steyr Regional Court dismissed the

applicants' appeal. Furthermore, referring to S. 85 para. 1 of

the Court Organisation Act (Gerichtsorganisationsgesetz), the

Regional Court imposed a fine of 10,000 AS upon them.

The Regional Court found that the written appeal contained

various passages alleging that the District Court's establishment

of the facts and its conclusions were obviously wrong and

resulted from bias to the advantage of the defendant, e.g. that

the District Court had acted "with the obvious intention to help

the arguments of the defendant on the road to success" ("bei der

unverkennbaren Absicht ... dem Rechtsstandpunkt der

Antragsgegnerin zum Durchbruch zu verhelfen"); that the District

Court's obviously wrong findings and deliberate disregard of some

evidence before it proved "the incomprehensible and arbitrary

partiality towards the defendant" ("die völlig unverständ-liche

und sachlich nicht gerechtfertigte Einseitigkeit ... zugunsten

der Antragsgegnerin").

The Regional Court found that these remarks contained in the

written submissions upon appeal, filed by the applicant's counsel

were of an insulting nature and amounted to an offence within the

meaning of S. 85 para. 1 of the Court Organisation Act. The Court

further considered that, while the submissions upon appeal had

been filed by the applicants' counsel, the contents thereof must

have been known to and approved by the applicants. It regarded

a fine of 10,000 ATS as appropriate with regard to the serious

nature of these insults and the applicants' financial situation.

On 9 October 1991 the applicants lodged an appeal on points

of law (Revisionsrekurs) with the Austrian Supreme Court

(Oberster Gerichtshof) against the Regional Court's decision

dismissing their appeal in the main proceedings. They further

filed an appeal (Rekurs) against the penalty imposed under S. 85

of the Court Organisation Act, complaining in particular about

the lack of an oral hearing and, thus, an opportunity to

challenge the Regional Court's assertions, inter alia, as to

their prior consent to these remarks.

On 23 March 1992 the Steyr Regional Court decided not to

forward the applicants' remedies to the Supreme Court on the

ground that they were inadmissible. The Regional Court considered

that the Supreme Court could only decide upon an appeal against

a penalty imposed under S. 85 of the Court Organisation Act, if

it could be seized with an appeal in the main case. However, in

the applicants' case, there was no further appeal against the

appellate court's decision on the main issue of the rectification

of their land's frontier. Thus the Supreme Court did not have

competence to deal with their appeal against the penalty imposed

upon them.

On 21 May 1992 the Supreme Court dismissed the applicants'

appeal (Rekurs) against the decision of the Regional Court of 23

March 1992. The Supreme Court held that the decision in the main

proceedings was already final and, thus, no appeal could be filed

against any of the Regional Court's decisions concerning the

conduct of the proceedings.

B. Relevant domestic law

According to S. 85 para. 1 of the Court Organisation Act

(Gerichtsorganisationsgesetz), a penalty (Ordnungsstrafe) within

the meaning of S. 220 of the Code of Civil Procedure

(Zivilprozeßordnung), i.e. not exceeding the amount of 20,000 AS,

may be imposed upon a party to non-contentious proceedings

(Angelegenheiten der Gerichtsbarkeit in Außerstreitsachen), who,

in written submissions to the court, makes insulting remarks,

thereby disregarding the authority of the court. There is, in

principle, an appeal to the higher court in accordance with the

provision of the Code of Civil Procedure (Zivilprozeßordnung).

S. 220 para. 3 of the Code of Civil Procedure further provides

that, in case of default of payment, the fine may be converted

into a term of imprisonment. The period of imprisonment is to be

fixed by the court having imposed the fine, and may not exceed

ten days.

COMPLAINTS

1. The applicants complain under Article 6 of the Convention

that they did not have a fair hearing by an impartial tribunal,

and could not exercise their defence rights, in respect of the

Regional Court's decision of 23 September 1991, imposing upon

them a penalty under S. 85 para. 1 of the Court Organisation Act.

2. They further consider that, taking into account the contents

of their counsel's submissions on appeal, the imposition of the

above-mentioned penalty violated their right of freedom of

expression under Article 10 of the Convention.

THE LAW

1. The applicants complain under Article 6 (Art. 6) of the

Convention that they did not have a fair hearing as regards the

Steyr Regional Court's decision imposing upon them, in respect

of insulting submissions contained in their appeal, a fine of

10,000 AS.

In order to determine whether Article 6 para. 1 (Art. 6-1)

of the Convention is applicable to this procedure under its

criminal "head", regard must be had to the relevant criteria

established in the case-law, namely the classification of the

offence under domestic law, the very nature of the offence and

the nature and the degree of severity of the penalty which may

be incurred (see, Eur. Court H.R., Weber judgment of 22 May 1990,

Series A no. 177, pp. 17-18, paras. 30-34; Ravnsborg judgment of

23 March 1994, para. 30, to be published in Series A no. 283-B).

The fine was imposed upon the applicants under S. 220 of the

Code of Civil Procedure and S. 85 of the Court Organisation Act

relating to offences against the order in court. According to the

Austrian legal system, such offences do not belong to criminal

law.

Moreover, as regards the nature of the offence in question,

such measures ordered by courts under rules aimed at ensuring the

proper and orderly functioning of its own proceedings are more

akin to the exercise of disciplinary powers than to the

imposition of a punishment of a criminal offence (see, Eur. Court

H.R., Ravnsborg v. Sweden judgment of 23 March 1994, para. 34,

to be published in Series A no. 283-B). The Commission therefore

considers that the kind of proscribed conduct for which the

applicants were fined in principle falls outside the ambit of

Article 6 (Art. 6).

Furthermore, with regard to the third criterion, the nature

and degree of severity of the penalty, the Commission notes that

the fine which may be imposed under S. 220 of the Code of Civil

Procedure only could amount to 20.000 AS. Furthermore, the court

having imposed the fine may only exceptionally, in case of

default of payment, decide to convert it into a term of

imprisonment not exceeding 10 days. The Commission therefore

considers that the penalty at stake for the applicant was not

sufficiently important to warrant classifying the offences as

"criminal".

Consequently, Article 6 (Art. 6) of the Convention did not

apply to the proceedings in question.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

2. The applicants further complain under Article 10 (Art. 10)

of the Convention about an alleged restriction of their right to

freedom of expression.

In this respect, the Commission finds that the interference

complained of was justified under Article 10 para. 2 (Art. 10-2)

of the Convention. In particular, the Regional Court's decision

imposing a fine upon the applicants for an offence against the

order in court was prescribed by law and necessary in a

democratic society for the protection of the rights of others and

for maintaining the authority of the judiciary.

It follows this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First

Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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C. AND E.F. v. AUSTRIA

C. AND E.F. v. AUSTRIA

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