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)
Full & Egal Universal Law Academy