Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19360/92

by Ludwig REINTHALER

against Austria

The European Commission of Human Rights sitting in private on

20 January 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

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 April 1991 by

Ludwig REINTHALER against Austria and registered on 16 January 1992

under file No. 19360/92;

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

of Procedure of the Commission;

Having regard to :

- the Commission's decision of 11 March 1992 to communicate the

application;

- the observations submitted by the respondent Government on

25 September 1992 and the observations in reply submitted by the

applicant on 1 December 1992;

- the Commission's decision to adjourn the present case pending the

further proceedings in Applications No. 18892/91 and No. 19362/92

(hearings on 3 December 1993);

- the Commission's decision on the admissibility of Application

No. 18892/91;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

The applicant, born in 1952, is an Austrian national and resident

in Wels. He is a driving instructor by profession.

A. Particular circumstances of the case

In March 1991 the applicant attended as a spectator a trial

before the Wels Regional Court (Landesgericht) against third persons.

On 21 March 1991 the Wels Regional Court, referring to S. 233

para. 3 of the Code of Criminal Procedure (Strafprozeßordnung), imposed

a fine (Ordnungsstrafe) of AS 2,000 upon the applicant. It also stated

that, in accordance with S. 237 para. 1 of the Code of Criminal

Procedure, there was no appeal against this decision.

The Wels Regional Court considered in particular that the

applicant had attended the trial as a spectator on other previous days,

e.g. on 18 March 1991. Already on the last-mentioned date, it had been

necessary for the Presiding Judge, after applause in the audience, to

admonish the persons present and warn them that, in case of continuing

disturbances, spectators would individually or in general be excluded

from the trial. On 21 March 1991 the applicant had, without

authorisation by the Presiding Judge under S. 228 of the Code of

Criminal Procedure, recorded the trial with a private tape recorder

which he had kept on his upper thigh where it could not be seen by the

Presiding Judge. This behaviour constituted a further disturbance

within the meaning of S. 233 para. 3 of the Code of Criminal Procedure.

Thereupon the applicant was excluded from the trial. He first complied

with this order, but entered the court room again after the lunch

break. Despite the Presiding Judge's order to leave the court room and

warning about a penalty, he refused to do so.

A payment order concerning this fine was issued against the

applicant on the same date.

On 10 April 1991 the Linz Court of Appeal (Oberlandesgericht)

declared the applicant's appeal (Beschwerde) against the Regional

Court's decision of 21 March 1991 inadmissible, in accordance with

S. 237 para. 1 of the Code of Criminal Procedure. As regards the

applicant's hierarchical complaint under S. 15 of the Code of Criminal

Procedure, the Court of Appeal observed that such a complaint was not

a general or subsidiary remedy in respect of individual court

decisions.

The applicant paid the fine on 4 September 1991.

B. Relevant domestic law

SS. 232 to 238 of the Austrian Code of Criminal Procedure concern

the powers of the presiding judge and of the court for maintaining

order in the court in the course of the trial.

S. 233 relates to "offences against the order in court" and, so

far as relevant, reads as follows:

"1. The presiding judge shall ensure the maintenance of peace and

order as well as good conduct in the court room as befitting the

dignity of the court. ...

3. Signs of approval or disapproval are prohibited. The presiding

judge is entitled to call persons to order who disturb the trial

by making such signs or otherwise, and, if necessary, to exclude

spectators individually or in general. If anybody disobeys or if

the disturbances are repeated, the presiding judge may impose

upon the person concerned a penalty (Ordnungsstrafe) not

exceeding AS 10,000, or, if indispensable for maintaining the

order, imprisonment for a period not exceeding eight days."

S. 237 para. 1 of the Code of Criminal Procedure provides that

decisions under S. 233 are immediately enforceable, and that there is

no appeal against them.

S. 7 para. 1 of the Code of Criminal Procedure provides that a

fine (Geldstrafe) imposed under the Code may be transformed into a

sentence of imprisonment in default of payment (Ersatzfreiheitsstrafe)

not exceeding a term of eight days, if the fine is partly or fully

irrecoverable and does not call for a reassessment.

COMPLAINTS

1. The applicant complains in general that the trial which he

attended was unfair and that the defence rights of the accused were

violated. He invokes Articles 6 and 17 of the Convention.

2. The applicant further complains about the penalty imposed upon

him by the Wels Regional Court on 21 March 1991. He submits in

particular that he had offered to hand over his tape recorder.

Furthermore, in the course of the lunch break on 21 March 1991,

Judge O. had allowed him to attend the trial again. He considers that

the Wels Regional Court, by imposing this penalty, found him guilty of

a criminal offence not provided for under Austrian law, contrary to

Article 7 of the Convention.

3. The applicant also complains that he did not have a remedy as

regards the decision of 21 March 1991. He invokes Article 13 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 April 1991 and registered on

16 January 1992.

On 11 March 1992 the Commission decided to communicate the

application for written observations on its admissibility and merits.

The Government's observations were submitted on

25 September 1992. The applicant submitted his observations in reply

on 1 December 1992.

On 11 May 1993 the Commission decided to adjourn the further

examination of the present application until having decided on the

admissibility of Applications No. 18892/91 and No. 19362/92 relating

to similar issues. The Commission decided upon the admissibility of the

said Applications on 3 December 1993.

THE LAW

1. The applicant complains in general that the trial which he

attended was unfair and that the defence rights of the accused were

violated. He invokes Articles 6 and 17 (Art. 6, 17) of the Convention.

The Commission finds that the trial was not conducted against the

applicant, but against third persons. The applicant's submissions in

this respect do not relate to any alleged violation of his Convention

rights. Consequently, the applicant cannot, to this extent, himself

claim to be a victim within the meaning of Article 25 para. 1

(Art. 25-1) of the Convention.

It follows that this part of the application is incompatible with

the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant further complains under Article 7 para. 1

(Art. 7-1) of the Convention about the penalty imposed upon him by the

Wels Regional Court on 21 March 1991.

Article 7 para. 1 (Art. 7-1) of the Convention, as far as

relevant, reads as follows:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national or international law at the time when it

was committed."

In the sphere of criminal law Article 7 para. 1 (Art. 7-1)

confirms the general principle that legal provisions which interfere

with individual rights must be adequately accessible, and formulated

with sufficient precision to enable the citizen to regulate his

conduct. Article 7 para. 1 (Art. 7-1) prohibits in particular that

existing offences be extended to cover facts which previously clearly

did not constitute a criminal offence (cf. No. 13079/87, Dec. 6.3.89,

D.R. 60 p. 256).

The Commission, assuming that Article 7 para. 1 (Art. 7-1)

applies to the present case, notes that the Wels Regional Court imposed

the fine concerned upon the applicant for an "offence against the order

in court" under S. 233 para. 3 of the Austrian Code of Criminal

Procedure. This provision lays down a penalty in case of insulting

remarks or other behaviour disregarding the authority of the court. The

Wels Regional Court found the applicant in breach of S. 233 of the Code

of Criminal Procedure in that he had disturbed the trial by recording

the trial with a private tape recorder without prior permission by the

Presiding Judge.

The Commission considers that the application of S. 233 para. 3

of the Code of Criminal Procedure in the present case cannot be

regarded as a violation of Article 7 para. 1 (Art. 7-1) of the

Convention.

It follows that the applicant's complaint under Article 7 para. 1

(Art. 7-1) is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3. The applicant also complains that he did not have a remedy as

regards the decision of 21 March 1991. He invokes Article 13 (Art. 13)

of the Convention.

The Commission has considered this aspect of the application

under Article 2 of Protocol No. 7 (P7-2) which, as far as relevant,

provides as follows:

"1. Everyone convicted of a criminal offence by a tribunal shall

have the right to have his conviction or sentence reviewed by a

higher tribunal. The exercise of this right, including the

grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to offences

of a minor character, as prescribed by law, ..."

The Commission, assuming that the above court decisions imposing

fines upon the applicant for an "offence against the order in court"

related to a criminal offence within the meaning of Article 2 of

Protocol No. 7, had regard to paragraph 2 (P7-2-2) of this provision,

which subjects the right to review by a higher tribunal to "exceptions

in regard to offences of a minor character, as prescribed by law".

The Commission notes that S. 235 of the Code of Criminal

Procedure envisages a fine, and, if indispensable for maintaining the

order, imprisonment not exceeding eight days. S. 7 of this Code

provides for imprisonment in default of payment.

The Commission finds that an "offence against the order in court"

within the meaning of the Code of Criminal Procedure constitutes a less

serious offence both as to its nature and to the severity of the

punishment involved. The Commission therefore considers an "offence

against the order in court" as being of a minor character. The

exception to the right to a review by a higher tribunal, pursuant to

Article 2 para. 2 of Protocol No. 7 (P7-2-2), thus applies.

It follows that 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 Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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REINTHALER v. AUSTRIA

REINTHALER v. AUSTRIA