AS TO THE ADMISSIBILITY OF

                      Application No. 18892/91

                      by Wilhelm PUTZ

                      against Austria

      The European Commission of Human Rights sitting in private on

3 December 1993, 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

           B. MARXER

           G.B. REFFI

           M.A. NOWICKI

           I. CABRAL BARRETO

           B. CONFORTI

           N. BRATZA

           I. BÉKÉS

      Mr.  M. de SALVIA, Deputy 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 23 September 1991

by Wilhelm PUTZ against Austria and registered on 3 October 1991 under

file No. 18892/91;

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

parties, may be summarised as follows.

      The applicant, born in 1936, is an Austrian national and resident

in Bad Goisern. He is a civil engineer and businessman by profession.

His previous application No. 15095/89 relating to bankruptcy and

criminal proceedings was declared inadmissible on 9 October 1991.

A.    Particular circumstances of the case

a.    Background

      In 1985 bankruptcy proceedings were opened before the Wels

Regional Court (Kreisgericht) concerning the assets of several private

companies managed by the applicant, and his private assets.

      Moreover, criminal proceedings were instituted before the Wels

Regional Court against the applicant and others on the suspicion of

fraud and bankruptcy offences. On 21 November 1991 the Wels Regional

Court convicted the applicant of ordinary bankruptcy (fahrlässige

Krida), of fraudulent conversion, of defamation, of having defrauded

social security contributions and of tax evasion. He was sentenced to

eighteen months' imprisonment on probation, and, as regards the tax

offences, a fine amounting to AS 59 million was imposed and a sentence

of six months' imprisonment pronounced. The period of his detention on

remand of almost six months was to be counted towards these sentences.

On 27 May 1993 the Austrian Supreme Court (Oberster Gerichtshof), upon

the applicant's plea of nullity (Nichtigkeitsbeschwerde), quashed the

Wels Regional Court's judgment regarding his conviction of ordinary

bankruptcy, of having defrauded social security contributions and of

tax evasion. To this extent, the Supreme Court referred the case to the

Innsbruck Regional Court. The remainder of the applicant's plea of

nullity was dismissed. The proceedings have not yet terminated.

      Furthermore, the applicant was involved in custody proceedings

concerning his children which were pending before the Bad Ischl

District Court (Bezirksgericht).

      In the course of these proceedings, various penalties (Ordnungs-

strafen) were imposed upon the applicant, or his imprisonment was

ordered, for "offences against the order in court".

b.    The criminal proceedings against the applicant

(1)   On 11 February 1986 the Wels Regional Court imposed a fine of

AS 5,000 upon the applicant for an "offence against the order in court"

under S. 85 para. 1 and S. 97 of the Court Organisation Act (Gerichts-

organisationsgesetz), in view of insulting remarks towards the Court

in his submissions of 4 February 1986. On 6 March 1986 the Wels

Regional Court imposed a further fine of AS 15,000 in view of insulting

remarks towards the Investigating Judge in his submissions of 3 March

1986.      On 1 July 1986 the Judges' Chamber (Ratskammer) at the Wels

Regional Court dismissed the applicant's appeal against the decision

of 11 February 1986. Upon his appeal against the decision of 6 March

1986, the fine was reduced to AS 10,000.

      On 1 October 1986 the Linz Court of Appeal (Oberlandesgericht)

rejected the applicant's further appeal.

      On 30 March 1991 the Wels Regional Court sent the applicant

payment orders in respect of these fines.

      On 14 March 1991 the Wels Regional Court ordered the applicant's

imprisonment for terms of three and five days, respectively, in default

of payment of the above fines. The applicant's appeal was dismissed by

the Linz Court of Appeal on 14 November 1991.

(2)   On 24 January 1991, in the course of the trial against him, the

Wels Regional Court imposed a fine of AS 3,000 upon the applicant under

SS. 85 and 97 of the Court Organisation Act. The Court found that the

insulting remarks in his written submissions of 2 January 1991 amounted

to an "offence against the order in court". His appeal was declared

inadmissible on 3 May 1991.

(3)   On 2 April 1991 the Wels Regional Court, referring to S. 235 of

the Code of Criminal Procedure (Strafprozeßordnung), imposed a further

fine of AS 5,000 upon the applicant. The Court noted that, in

accordance with S. 237 para. 1 of the Code of Criminal Procedure, there

was no appeal against this decision.

      In its written decision, the Regional Court found that, in the

course of the criminal proceedings against him, the applicant, having

regard to his behaviour and constant reproaches against the Presiding

Judge in particular, had already been repeatedly warned about

disciplinary measures under S. 235 of the Code of Criminal Procedure.

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.

      On 2 April 1991 a payment order concerning the fine of the same

date was issued against the applicant. On 16 April 1991 the applicant

received the written version of the decision of 2 April 1991.

(4)   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.

      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 above decision on 20 April 1991.

(5)   On 24 June 1991, in the course of the trial, the Wels Regional

Court dismissed the applicant's motion to challenge the Presiding Judge

for bias. The Regional Court found that the applicant had already been

repeatedly informed that divergent opinions about the conduct of the

proceedings cannot justify doubts as to the impartiality of the

Presiding Judge. The Regional Court refused to consider in detail the

applicant's defamatory allegations.

      However, the Regional Court, having regard to the applicant's

remarks about "methods of the Nazi regime and the Eastern bloc" ("Nazi-

und Ostblockmethoden") imposed a fine of AS 10,000 upon him. The Court

warned the applicant about further consequences, especially those

provided under S. 235, last sentence, of the Code of Criminal

Procedure, should he continue in this manner. The applicant's request

for a written version of this decision was refused; he was referred to

the verbatim record of the trial. On 17 July 1991 a payment order

concerning the fine imposed on 24 June 1991 was issued.

      On 25 February 1992 the Supreme Court (Oberste Gerichtshof), upon

a plea of nullity for the preservation of the law (Nichtigkeits-

beschwerde zur Wahrung des Gesetzes) lodged by the Attorney General

(Generalprokurator), quashed the Regional Court's decision of 24 June

1991. The Supreme Court found that the decision contravened S. 235 of

the Code of Criminal Procedure which did not apply to insulting remarks

in written submissions. The relevant provisions of S. 85 para. 1 and

S. 97 of the Court Organisation Act had not been applied.

(6)   On 17 July 1991 the Linz Court of Appeal, 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.

      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 him, 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 misuse of official

powers in a lawful manner.

(7)   On 17 September 1991 the Wels Regional Court, referring to

SS. 235 and 237 para. 1 of the Code of Criminal Procedure, imposed a

penalty of one day's imprisonment upon the applicant. The Regional

Court had regard to statements made by the applicant in a letter to the

Austrian President complaining, inter alia, that the trial was unfair

and had been conducted by biased judges, thus preventing the

establishment of the truth. The Regional Court found that the

imposition of a penalty of imprisonment was justified on the ground

that the numerous fines had had no impact upon him. The applicant

served the sentence on 17 and 18 September 1991.

      On 4 August 1992 the Supreme Court, upon a plea of nullity for

the preservation of the law lodged by the Attorney General, quashed the

Regional Court's decision of 17 September 1991. The Supreme Court found

that the decision contravened S. 235 of the Code of Criminal Procedure

which did not apply to insulting remarks in written submissions. The

mere reference at the trial to such written submissions upon

questioning by the Presiding Judge was not sufficient. The relevant

provisions of S. 85 para. 1 and S. 97 of the Court Organisation Act had

not been applied.

      On 1 February 1993 the applicant filed compensation claims as to

his imprisonment with the Attorney General's Department (Finanz-

prokuratur).

c.    The bankruptcy proceedings

(1)   On 21 May 1987 the Linz Court of Appeal imposed a fine of

AS 10,000 upon the applicant for an "offence against the order in

court". On 10 March 1988 the Wels Regional Court ordered imprisonment

of six days and fifteen hours in default of payment of this fine, which

the applicant served from 17 until 24 November 1991.

(2)   On 17 July 1987, 4 March and 11 March 1988, in the course of the

above-mentioned bankruptcy proceedings, the Wels Regional Court imposed

three successive fines of AS 15,000 upon the applicant. The decisions

related to submissions by the applicant charging the competent judge

with having acted as accessory to various criminal offences allegedly

committed by the official receiver in the bankruptcy proceedings, and

with allegedly telling lies and committing fraud.

      On 29 November 1989 the Court ordered thirty days' imprisonment

in default of payment of these fines. The applicant's appeals were to

no avail. On account of this decision, the applicant was detained from

18 September until 18 October 1991.

(3)   On 11 November 1987 the Wels Regional Court imposed a further

fine of AS 15,000 upon the applicant. On 28 April 1989 the Regional

Court ordered ten days' imprisonment in default of payment of this

fine. The applicant's appeal in this respect was dismissed on 11 August

1989. The applicant was detained from 7 until 17 November 1991.

(4)   On 7 August 1989 the Linz Court of Appeal, in appeal proceedings,

imposed a fine of AS 15,000 upon the applicant. The Court of Appeal had

regard to the applicant's insulting remarks about the President of the

Court of Appeal. It referred to S. 85 para. 1 of the Court Organisation

Act in conjunction with S. 220 of the Code of Civil Procedure.

      On 10 January 1990 the Wels Regional Court ordered a term of ten

days' imprisonment in default of payment of this fine. The applicant's

appeal were dismissed by the Linz Court of Appeal on 17 April 1990. The

applicant was detained from 28 October until 7 November 1991.

(5)   On 23 January and 6 July 1990 the President of the Wels Regional

Court, having regard to hierarchical complaints lodged by the applicant

in respect of the judge conducting the bankruptcy proceedings, imposed

successive fines of AS 20,000 for "offences against the order in

court". Following successful proceedings before the Austrian

Administrative Court (Verwaltungsgerichtshof), these decisions were

quashed for procedural reasons on 11 November and 14 October 1991,

respectively.

d.    The custody proceedings

      On 7 August 1989 the Linz Court of Appeal, in appeal proceedings,

imposed a fine of AS 15,000 upon the applicant. The Court of Appeal had

regard to the applicant's insulting remarks about judges conducting the

custody proceedings. It referred to S. 85 para. 1 of the Court

Organisation Act and S. 220 of the Code of Civil Procedure.

      On 10 January 1990 the Wels Regional Court ordered a term of ten

days' imprisonment in default of payment of this fine. The applicant's

appeal were dismissed by the Linz Court of Appeal on 17 April 1990. The

applicant was detained from 18 October until 28 October 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 at the trial.

      S. 235 defines "offences against the order in court" 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."

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

decisions under S. 235 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.

      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; there is no

appeal against penalties imposed in such context.

      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.

      SS. 3. a to 3. g of the Act on the Prohibition of the National

Socialist Party (Verfassungsgesetz über das Verbot der NSDAP) define

various criminal offences relating to activities in the spirit of

National Socialism ("Betätigung im nationalsozialistischen Sinn").

COMPLAINTS

1.    The applicant complains under Article 6 of the Convention that

he did not have a fair hearing by an impartial tribunal, and could not

exercise his defence rights, in respect of the Austrian court decisions

imposing penalties upon him for "offences against the order in court".

He also appears to invoke Article 13 of the Convention in this respect.

2.    The applicant further complains under Article 13 of the

Convention that he did not have an effective remedy as regards the

above penalties.

3.    The applicant complains under Article 7 of the Convention that

the Austrian courts, by imposing these penalties, found him guilty of

a criminal offence not provided for under Austrian law.

4.    He further considers that these court decisions violated his

right to freedom of thought under Article 9, and his right to freedom

of expression under Article 10 of the Convention. He also invokes

Article 17.

5.    Moreover, the applicant complains that the immediate execution

of the penalty of one day's imprisonment imposed upon him on

17 September 1991 as well as the subsequent consecutive execution of

the terms of imprisonment in default of payment of earlier fines

amounted to inhuman and degrading treatment contrary to Article 3 of

the Convention.

6.    Finally, the applicant considers that, as a result of the various

decisions to impose penalties upon him for "offences against the order

in court", he did not have a fair hearing, contrary to Article 6 of the

Convention, in the criminal proceedings against him concerning the

charges of fraud and bankruptcy.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 23 September and registered on

3 October 1991.

      On 11 March 1992 the Commission decided to communicate the

application to the respondent Government for written observations on

its admissibility and merits.

      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.

      On 11 December 1992 the Commission decided to grant the applicant

legal aid.

      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 order in court".

      The hearing took place on 3 December 1993. The applicant was

represented by Mr. Schwab, counsel, and attended the hearing in person.

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 LAW

1.    The applicant complains under Articles 6 and 13 (Art. 6, 13) of

the Convention that he did not have a fair hearing by an impartial

tribunal, and could not exercise his defence rights, in respect of the

Austrian court decisions imposing penalties upon him for "offences

against the order in court".

      Article 6 (Art. 6) of the Convention, so far as relevant,

provides as follows:

      "1.  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. ...

      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.    The Government submit that the alleged violations of the

applicant's Convention rights have been redressed at the domestic level

in respect of the Wels Regional Court's decisions of 24 June and

17 September 1991, respectively, and in respect of the decisions of the

President of the Wels Regional Court dated 23 January and 6 July 1990.

Any fines already paid by the applicant could be recovered, and he

could claim compensation with regard to the one day's imprisonment

already served by him.

      The Commission notes that the Wels Regional Court's decision of

24 June 1991 was quashed by the Austrian Supreme Court on 25 February

1992, the Regional Court's decision of 17 September 1991 was quashed

on 4 August 1992. The above-mentioned decisions taken by the President

of the Wels Regional Court were quashed in October and November 1991,

respectively.

      In these circumstances, the Commission finds that the alleged

violation of the Convention regarding the above-mentioned four

decisions and proceedings concerned were rectified at the domestic

level. Consequently, the applicant, in these respects, cannot claim to

be a victim of a violation of his right under Article 6 (Art. 6) of the

Convention.

      It follows that this part of the application is inadmissible

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

b.    The Government further submit that the applicant failed to

comply, as required by Article 26 (Art. 26) of the Convention, with the

six-months' time-limit for lodging his complaints as regards the

decisions taken prior to 23 March 1991.

      The Commission notes that the applicant introduced his

application with the Commission on 23 September 1991. In accordance

with the six-months' rule under Article 26 (Art. 26) of the Convention,

the Commission is not called upon to examine the applicant's complaints

about the Wels Regional Court's decisions of 11 February and 6 March

1986 as well as 24 January 1991, taken in the course of the criminal

proceedings against him. Furthermore, his complaints concerning several

decisions taken in the course of the bankruptcy proceedings, namely the

Linz Court of Appeal's decisions of 21 May 1987 and 7 August 1989,

moreover his complaints about the Wels Regional Court's decisions of

17 July and 11 November 1987, 4 and 11 March 1988, and his complaint

about the Linz Court of Appeal's decision of 7 August 1989 relating to

the custody proceedings, were lodged out of time.

      Consequently, this part of the application is inadmissible under

Article 27 para. 3 in conjunction with Article 26 (Art. 27-3+26) of the

Convention.

c.    The Government further contend that Article 6 (Art. 6) of the

Convention does not apply to the present case. They consider that the

Austrian court decisions to impose fines upon the applicant for

"offences against the order in 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

was 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, "offences against the order in

court" must not be disregarded, however, did not require criminal

prosecution.

      As to the question of compliance with Article 6 paras. 1 and 3

(Art. 6-1, 6-3) 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.

The courts concerned were impartial, the imposition of a fine for an

"offence against the order in court" could only be decided upon by the

judge competent in the main proceedings, even if the insulting remarks

related to him.

      The Commission finds that the applicant's complaints about the

lack of a fair trial regarding the decisions of the Wels Regional Court

of 2 and 8 April 1991 and of the Linz Court of Appeal of 17 July 1991

raises difficult questions of fact and of law which require an

examination of the merits. No other ground for declaring it

inadmissible has been established.

2.    The applicant further complains under Article 13 (Art. 13) of the

Convention that he did not have an effective remedy as regards the

above penalties.

      The Commission has considered this aspect of the applicant's

complaint 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 Government, referring to their submissions as to Article 6

(Art. 6), contend that Article 2 para. 1 of Protocol No. 7 (P7-2) does

not apply, either. They also argue that, in any event, punishment for

an "offence against the order in court" related to a minor offence

within the meaning of Article 2 para. 2 of Protocol No. 7 (P7-2-2) in

respect of which exceptions to the right of review were permitted. In

particular, S. 233 para. 3 of the Code of Criminal Procedure only

permitted a penalty of imprisonment if indispensable for maintaining

the order.

      The Commission, assuming that the above court decisions imposing

fines upon the applicant for "offences against the order in court"

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

Protocol No. 7 (P7-2), had regard to paragraph 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. 85 of the Court Organisation Act in

conjunction with S. 220 of the Code of Civil Procedure provides for a

fine and imprisonment in default of payment. S. 235 of the Code of

Criminal Procedure also 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 Austrian Court Organisation Act, in

conjunction with the Code of Civil Procedure, and the Code of Criminal

Procedure, respectively, 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.

3.    The applicant also complains under Article 7 (Art. 7) of the

Convention that the Austrian courts, by imposing these penalties, found

him guilty of a criminal offence not provided for under Austrian law.

      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 (P7-1) 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 (P7-1) 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 (P7-1) applies

to the present case, recalls its above findings that any violations as

regards the Wels Regional Court's decisions of 24 June and 17 September

1991, respectively, and the decisions of the President of the Wels

Regional Court dated 23 January and 6 July 1990 were rectified at the

domestic level. Furthermore, complaints about any decisions prior to

23 March 1991 have been lodged out of time.

      The Commission has examined the applicant's submissions relating

to the Wels Regional Court's decisions of 2 and 8 April 1991, and to

the Linz Court of Appeal's decision of 17 July 1991.

      The Commission notes that the Wels Regional Court imposed fines

upon the applicant for "offences against the order in court" amounting

to AS 5,000 and AS 7,500, respectively. The decisions were based upon

S. 233 para. 3 of the Austrian Code of Criminal Procedure. The Linz

Court of Appeal imposed a fine of AS 10,000 under S. 85 para. 1 and

S. 97 of the Court Organisation Act in conjunction with S. 220 of the

Code of Civil Procedure. These provisions lay down penalties in cases

of insulting remarks or other behaviour disregarding the authority of

the court. The Wels Regional Court found the applicant in breach of

S. 235 of the Code of Criminal Procedure in that he had reproached the

Presiding Judge in the criminal proceedings against him with misuse of

powers and criminal conduct. The Linz Court of Appeal considered that

the applicant, in written submissions, had made insulting remarks about

the Presiding Judge in the criminal proceedings against him, requiring

penalties under S. 85 para. 1, S. 97 of the Court Organisation Act in

conjunction with S. 220 of the Code of Civil Procedure.

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

of the Code of Criminal Procedure as well as S. 85 para. 1, S. 97 of

the Court Organisation Act in conjunction with S. 220 of the Code of

Civil Procedure in the present case cannot be regarded as a violation

of Article 7 para. 1 (P7-1) 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.

4.    The applicant further maintains that the court decisions

concerned violated his rights under Articles 9 and 10 (Art. 9, 10) of

the Convention. He also invokes Article 17 (Art. 17) of the Convention.

      The Commission finds that the court decisions imposing penalties

upon the applicant for "offences against the order in court" do not

show any lack of respect for his freedom of thought under Article 9

(Art. 9) of the Convention.

      Further, any interference with his right to freedom of

expression, as guaranteed under Article 10 (Art. 10) of the Convention,

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

In particular, the penalties were provided for in the Austrian Code of

Criminal Procedure, the Court Organisation Act and the Code of Civil

Procedure, respectively. They served the legitimate aims of protecting

the reputation of others and maintaining the authority of the

judiciary.

      The Commission finds no appearance of a violation of these

Convention rights invoked by the applicant.

      Accordingly, these complaints are also manifestly ill-founded

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

5.    Moreover, the applicant complains that the immediate execution

of the penalty of one day's imprisonment imposed upon him on

17 September 1991 as well as the subsequent consecutive execution of

the terms of imprisonment in default of payment of earlier fines

amounted to inhuman and degrading treatment contrary to Article 3

(Art. 3) of the Convention.

      The Commission observes that the Wels Regional Court's decision

of 17 September 1991 was later quashed and that the applicant meanwhile

file compensation claims. The Commission finds no indication that the

execution of the various penalties amounted to inhuman or degrading

treatment within the meaning of Article 3 (Art. 3) of the Convention.

      Consequently, the applicant's complaints under Article 3

(Art. 3) are manifestly ill-founded within the meaning of Article 27

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

6.    Finally, the applicant considers that, as a result of the various

decisions to impose penalties upon him for "offences against the order

in court", he does not have a fair hearing, contrary to Article 6

(Art. 6) of the Convention, in the criminal proceedings against him

concerning the charges of fraud and bankruptcy offences.

      The Commission recalls that the question whether or not court

proceedings satisfy the requirements of Article 6 para. 1

(Art. 6-1) of the Convention can only be determined by examining the

proceedings as a whole, i.e. once they have been concluded. However,

it is not impossible that a particular procedural element could be so

decisive that the fairness of the proceedings could be determined at

an earlier stage (No. 9938/82, Dec. 15.7.86, D.R. 48 p. 21). The

Commission, noting that the criminal proceedings in question have not

yet been completed, finds that the applicant's submissions do not

disclose any such circumstances.

      It follows that this part of the application is also manifestly

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

Convention.

      For these reasons, the Commission, by a majority

      DECLARES ADMISSIBLE, without prejudging the merits, 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,

      DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission          President of the Commission

      (M. de Salvia)                              (C.A. Nørgaard)