Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19362/92

by Albert HEBERGER

against Germany

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 11 November 1991

by Albert HEBERGER against Germany and registered on 16 January 1992

under file No. 19362/92;

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

of Procedure of the Commission;

Having regard to :

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 1930, is a German national and resident

in Frankfurt. He is retired. Since July 1993 the applicant has been

represented by Mr. Riedel, a lawyer practising in Frankfurt/Main.

A. Particular circumstances of the case

On 12 December 1990 the applicant appeared as a witness before

the Darmstadt Regional Court (Landgericht), summoned to give testimony

in criminal proceedings against third persons.

According to the record of the trial the applicant appeared as

the tenth witness. He first made his statements as to his personal

particulars. He was then informed about his right under S. 55 of the

Code of Criminal Procedure (Strafprozeßordnung) not to give evidence,

if he would thereby incriminate himself. The record summarised the

relevant events as follows:

"He first declared not to be willing to give evidence, but then

replied to some questions. He was shouting around, molested the

lawyers, and, even after being warned, did not calm down. The

defence counsel [H.] stated that the witness, due to consumption

of alcohol, was not fit to participate in the proceedings. He

requested that the witness be produced for the next hearing. The

Presiding Judge warned about penalties. The Public Prosecutor

suggested that an appropriate penalty be imposed upon the witness

for improper behaviour (Ungebühr) in court."

Furthermore, the Presiding Judge asked the medical expert E., who

was present at the trial, for confirmation that the applicant was

capable of comprehending his situation. The applicant objected to the

imposition of a penalty and submitted that he was in a very poor state

of health and not capable of participating in the proceedings; he also

requested that evidence be taken as to his blood alcohol content level.

The Darmstadt Regional Court thereupon imposed a penalty of six

days' imprisonment upon the applicant for improper behaviour in court,

i.e. an "offence against the order in court" within the meaning of

S. 178 para. 1 of the Court Organisation Act (Gerichtsverfassungs-

gesetz). The Regional Court considered in particular that the

applicant, although duly summoned, had appeared in court drunk, to an

extent that he was not capable of making a proper statement. Though

warned several times, he constantly interrupted the persons putting

questions to him. He also claimed that one or other questions should

not be put to him. This behaviour resulted from his alcoholism, which

impaired his self-restraint and constantly led him to make irrelevant

and rude remarks.

The decision ordering the applicant's imprisonment was executed

immediately, and the applicant served the penalty until 18 December

1990. On 31 January 1991 the Frankfurt Court of Appeal (Oberlandes-

gericht) dismissed the applicant's complaint about the decision of the

Presiding Judge (Beschwerde). The Court of Appeal, referring to the

record of the trial, found in particular that the reason for imposing

the penalty in question was sufficiently stated. The imprisonment

imposed by the Presiding Judge did not appear unreasonable. As regards

the applicant's complaint about unfairness and in particular the

refusal of his request to take evidence on his blood alcohol content

level, the Court of Appeal considered that the Presiding Judge could

himself assess the question whether the applicant, having regard to his

consumption of spirits, was fit to participate in the proceedings.

On 8 May 1991 the Federal Constitutional Court (Bundes-

verfassungsgericht) rejected the applicant's constitutional complaint

(Verfassungsbeschwerde) on the ground that it offered no prospect of

success. The Constitutional Court considered that the Regional Court

had duly heard the applicant, in particular as to his bodily handicaps,

and then decided that his behaviour resulted nevertheless from the

consumption of alcohol. The Court of Appeal had further informed him

that the Presiding Judge could himself decide upon the question as to

whether the applicant was unfit to participate in the proceedings. The

Court's finding that the applicant's behaviour amounted to an "offence

against the order in court" within the meaning of S. 178 para. 1 of the

Court Organisation Act was not arbitrary, and could not be contested

under constitutional law.

The applicant received the decision on 24 June 1991.

B. Relevant domestic law

SS. 176 to 183 of the German Court Organisation Act (Gerichts-

verfassungsgesetz) concern the powers of the presiding judge and of the

court for maintaining order in the court in the course of hearings.

S. 178, so far as relevant, defines the "offence against the

order in cour" as follows:

"1. Upon parties, accused persons, witnesses, experts or persons

not participating in the proceedings, who shows an improper

behaviour in court, a fine (Ordnungsgeld) not exceeding DM 2,000,

or imprisonment not exceeding one week may be imposed, subject

to criminal prosecution, and immediately enforced. If a fine is

imposed the imprisonment in default of payment shall be

determined at the same time.

2. The presiding judge decides upon penalties against persons not

participating in the proceedings, otherwise the court decides."

S. 179 provides that the presiding judge has immediately to order

the enforcement of the penalty imposed.

S. 181 regulates the appeal (Beschwerde) against the penalty for

the above "offence against the order in court. S. 182 provides for the

recording of the decision on such a penalty and the reasons for it.

S. 183 provides that, when a criminal offence has been committed

in court, the court concerned has to establish the facts and to forward

the record to the competent authority. If necessary, the court has to

order the provisional arrest of the offender.

COMPLAINTS

The applicant complains under Articles 3, 5 and 6 of the

Convention that he did not have a fair hearing, and could not exercise

his defence rights, regarding the Darmstadt Regional Court's decision

imposing six days' imprisonment upon him for an "offence against the

order in court".

The applicant claims that he was not drunk, but had suffered from

various bodily handicaps and pains, and was ill. He had therefore been

unfit to participate in the proceedings at the time in question. He

complains in particular that his request to take expert evidence as to

his capability to participate in the proceedings and his alleged

consumption of alcohol were unduly dismissed.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 November 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 27 July 1992. The

applicant submitted his observations in reply on 5 October 1992.

THE LAW

The applicant complains that he did not have a fair hearing, and

could not exercise his defence rights, in respect of the Darmstadt

Regional Court's decision of 12 December 1990 imposing six days'

imprisonment upon him for "an offence against the order in court". He

invokes Articles 3, 5 and 6 (Art. 3, 5, 6) of the Convention.

The Government maintain that Article 6 (Art. 6) of the Convention

does not apply to the proceedings in question. They submit that under

domestic law, the imposition of the term of imprisonment for "an

offence against the order in court" under S. 178 of the Court

Organisation Act was no criminal penalty, but a disciplinary measure.

The applicant's behaviour which the Darmstadt Regional Court found to

be an "offence against the order in court" did not constitute a

criminal offence, otherwise it would have proceeded under S. 183 of the

Court Organisation Act.

The Government also submit that, in cases of disturbances at

court hearings, the good order in court could not be effectively

secured by later criminal proceedings against the disturber or by his

removal from the court room. Imposing a penalty for "an offence against

the order in court was a further means to ensure undisturbed

continuation of the court proceedings. Such decisions could be taken

in a summary procedure which did not meet the formal requirements of

criminal proceedings, as the offence was clearly proven.

Moreover, the Government consider that the courts' powers to

impose penalties for an "offence against the order in court" serve the

purpose of ensuring the right to a hearing within a reasonable time

under Article 6 para. 1 (Art. 6-1) of the Convention. It would be

contrary to the object and purpose of Article 6 (Art. 6), could

disturbances at court hearings not be instantly dealt with by

disciplinary means in form of penalties for an "offence against the

order in court".

Finally, the Government state that there is no appearance of

unfairness in the applicant's case. In particular, the applicant was

warned during his questioning, inter alia by the accused's defence

counsel. A medical expert present at the hearing confirmed that the

applicant was capable of comprehending his situation, and the question

of his blood alcohol content level was irrelevant for the finding that

he had committed an "offence against the order in court".

The Commission finds that the applicant's complaints raise

difficult questions of fact and of law which require an examination of

the merits. The application is therefore not manifestly ill-founded

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

No other ground for declaring it inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Deputy Secretary to the Commission President of the Commission

(M. de Salvia) (C.A. Nørgaard)

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HEBERGER v. GERMANY

HEBERGER v. GERMANY

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