In the case of Putz v. Austria (1),
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ("the Convention") and
the relevant provisions of Rules of Court B (2), as a Chamber
composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr J. De Meyer,
Mr A.N. Loizou,
Mr D. Gotchev,
Mr K. Jungwiert,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 26 October 1995 and
26 January 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 57/1994/504/586. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the
Court since its creation and on the list of the corresponding
originating applications to the Commission.
2. Rules of Court B, which came into force on 2 October 1994,
apply to all cases concerning States bound by Protocol No. 9
(P9).
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 8 December 1994
and by Mr Wilhelm Putz ("the applicant"), an Austrian national,
on 23 December 1994, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 18892/91)
against the Republic of Austria lodged with the Commission under
Article 25 (art. 25) by Mr Putz on 23 September 1991.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the applicant's application referred to Article 48 as
amended by Protocol No. 9 (P9) as regards Austria. The object
of the request and of the application was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 paras. 1 and
3 (art. 6-1, art. 6-3) of the Convention.
2. On 16 January 1995 the President gave the applicant's
lawyer leave to use the German language in both the written and
the oral proceedings (Rule 28 para. 3 of Rules of Court B).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On
27 January 1995, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr R. Bernhardt, Mr F. Gölcüklü, Mr J.De Meyer, Mr A.N. Loizou,
Mr D. Gotchev, Mr K. Jungwiert and Mr P. Kuris (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Austrian
Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 39 para. 1 and 40). Pursuant to the order made in
consequence, the Registrar received the Government's memorial on
18 August 1995 and the applicant's memorial on 22 August. On
28 August the Secretary to the Commission informed the Registrar
that the Delegate would submit his observations at the hearing.
On 25 August 1995 the Commission had produced the file on
the proceedings before it, as requested by the Registrar on the
President's instructions.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 23 October 1995. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Head of the International Affairs
Division, Constitutional Department, Federal
Chancellery, Agent,
Mrs I. Gartner, State Counsel, Federal Ministry of
Justice,
Mrs E. Bertagnoli, International Law Department,
Federal Ministry of Foreign Affairs, Advisers;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicant
Mr C.J. Schwab, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Weitzel, Mr Schwab,
Mr Okresek and Mrs Gartner.
AS TO THE FACTS
I. The circumstances of the case
6. Mr Wilhelm Putz, an Austrian national born in 1936, lives
at Bad Goisern (Upper Austria).
A. Background to the case
7. In 1985 criminal proceedings in respect of, among other
things, bankruptcy (fahrlässige Krida) were instituted against
the applicant, who was the manager of several commercial
companies. During the proceedings the Wels Regional Court
(Kreisgericht) imposed several pecuniary penalties
(Ordnungsstrafen) on him for disrupting court proceedings.
B. Decisions of the Wels Regional Court
1. The first fine
8. On 2 April 1991 the Wels Regional Court sentenced Mr Putz
to a fine of 5,000 Austrian schillings (ATS) under Article 235
of the Code of Criminal Procedure (Strafprozeßordnung - see
paragraph 19 below). It added that by Article 237 para. 1 of the
same Code (see paragraph 19 below), no appeal lay against the
decision.
In its reasons the Regional Court pointed out that during
the criminal proceedings against the applicant it had warned him
on several occasions that he was liable to disciplinary
penalties, as provided in Article 235 of the Code of Criminal
Procedure, if he persisted in his behaviour and his repeated
outbursts, in particular against the court's presiding judge.
It added that during the hearing on the merits on 2 April 1991
Mr Putz had reiterated some of these criticisms (in particular,
the assertion that the presiding judge had not complied with the
law during the committal proceedings (Zwischenverfahren) and had
taken part in the instant proceedings whereas he had allegedly
withdrawn earlier), although the Linz Court of Appeal
(Oberlandesgericht) had several times attempted to explain to him
that those accusations were baseless. The applicant had also
accused the presiding judge of having broken his oath, of
continuing to infringe the law and of having brought pressure to
bear on officials in order to "deprive him of all his defence
rights by means of deception, untruths and lies". The Regional
Court held that this last accusation, which referred to an
alleged refusal to communicate the record of the trial, was
completely baseless and unfounded, particularly when regard was
had to the presiding judge's statements on the matter; it was
consequently necessary to take a suitable disciplinary measure
against the applicant.
On 16 April 1991 the Wels Regional Court served that
decision on Mr Putz.
9. On 21 April 1991 it made an order sentencing the applicant
to pay the fine in question and subsequently converted it into
a three-day prison sentence for failure to pay.
On 3 December 1991 the Wels Regional Court ordered the
applicant to serve the prison sentence, whereupon he paid the
fine.
2. The second fine
10. On 8 April 1991 the Wels Regional Court again sentenced
Mr Putz to a fine of ATS 7,500 under Article 235 of the Code of
Criminal Procedure (see paragraph 19 below). It stated that by
Article 237 para. 1 of the same Code (see paragraph 19 below) no
appeal lay against the decision.
In its reasons the Regional Court referred to its decision
of 2 April 1991, whereby it had already imposed a pecuniary
penalty on the applicant on the basis of the same Article (see
paragraph 8 above). It pointed out that during the trial on
8 April 1991 the applicant had again made unjustified criticisms
of the presiding judge, in which he had accused him of breaking
his oath, deliberately contravening the law and conducting an
unfair criminal trial in order, among other things, to further
his own career, and having already decided on the verdict before
the end of the trial. The Regional Court held that a suitable
pecuniary penalty therefore had to be imposed on Mr Putz.
11. On 17 April 1991 the Wels Regional Court made an order
sentencing the applicant to pay the fine in question and
subsequently converted it into a five-day prison sentence for
failure to pay.
On 3 December 1991 it ordered the applicant to serve the
prison sentence, whereupon he paid the fine.
C. Decisions of the Linz Court of Appeal
1. The decision of 24 May 1991
12. On 21 April 1991 the applicant lodged a disciplinary
appeal (Aufsichtsbeschwerde) with the Linz Court of Appeal
against the Wels Regional Court's decisions of 2 and
8 April 1991.
13. On 24 May 1991 the Court of Appeal, giving its ruling in
private after hearing the prosecution, declared the appeal
inadmissible as, under Article 237 para. 1 of the Code of
Criminal Procedure, no appeal lay against the imposition of
pecuniary penalties. It held:
"Quite apart ... from the fact that the legislature has
expressly provided that such pecuniary penalties are to
be unappealable (unanfechtbar), there is no reason to
suppose that there was any denial of justice
(Rechtsverweigerung) or deliberate departure from the law
(Rechtsbeugung) on the part of the court below. The
applicant in fact insulted the presiding judge of the
court below like a criminal ... It was within the
court's powers under Article 235 of the Code of Criminal
Procedure to impose a fine of its own motion in order to
punish those manifestly unfounded accusations."
2. The third fine
14. On 20 June 1991 the applicant sent observations to the
Linz Court of Appeal.
15. On 17 July 1991 that court sentenced Mr Putz to a fine of
ATS 10,000 under sections 85 (1) and 97 of the Courts Act
(Gerichtsorganisationsgesetz - see paragraph 22 below) taken
together with Article 220 para. 1 of the Code of Civil Procedure
(Zivilprozeßordnung - see paragraph 23 below). It added that no
appeal lay against the decision.
The Court of Appeal criticised the applicant for having
made the following accusations against the presiding judge of the
court below in his pleadings:
"Judge Sturm [the presiding judge] thus prevents truth
being discovered. The method he applies during the
hearing is typical of the one employed under the Nazi
regime and the regimes in the Eastern bloc ... The
hearing is thus reduced to a sham trial designed to
confirm a preconceived judgment ... A certain
Jörg Haider is being prosecuted for reviving Nazi ideas
while violations of the law take place every day, just as
they did under Hitler or Stalin, at the Wels Regional
Court, yet no similar proceedings have been brought to
date against the judges and prosecutors concerned."
In its reasons the Court of Appeal recapitulated the
statutory provisions applicable where offensive remarks in
writing have been made about judges during criminal proceedings.
It then summarised as follows the criteria for determining
whether written submissions were offensive:
"To recapitulate, it may be pointed out here that the
question whether a document contains offensive remarks is
not for the court to decide at its discretion but has to
be determined as an issue of law. It is not necessary
that the remarks in question should amount to a criminal
offence; the only requirement is that they should be
offensive. It is similarly of no importance whether or
not there was an intention to be offensive. It suffices
that the impugned remarks are objectively offensive, that
is to say that they breach the duty of propriety towards
the authority. Nor can the fact that the defendant
believed that his criticism was well-founded justify the
offensive remarks. It may be said that remarks are
offensive where an application is drafted in such a way
that it constitutes unseemly conduct towards the
authority. This is the case where an application lacks
the moderation that, out of respect for the authority,
should be observed in dealings with it. Anyone who finds
that an authority or one of its bodies has exceeded or
misused its powers may make a complaint in the manner
prescribed by law, but he does not have the right to
injure the authority's (or body's) reputation by means of
subjective remarks which disregard the duty of
propriety."
It held that Mr Putz had overstepped the bounds of
objectivity and decency in comparing the judicial methods in the
proceedings in question to those characteristic of Nazi trials
and trials in the Eastern bloc, and in referring to criminal
violation of the law like that under Hitler or Stalin. It
therefore considered a pecuniary penalty of ATS 10,000 to be
appropriate.
16. On 18 March 1992 the Linz Court of Appeal made an order
sentencing the applicant to pay the fine in question, and on
26 March 1992 the applicant paid it.
D. The judgment of the Supreme Court
17. On 25 February 1992 an appeal brought by the applicant
against the Linz Court of Appeal's decision of 17 July 1991 was
declared inadmissible by the Supreme Court (Oberster
Gerichtshof).
II. Relevant domestic law
18. Austrian law provides that offensive remarks or unfounded
accusations made in the context of criminal proceedings are
punishable by a pecuniary penalty (Ordnungsstrafe). If the
remarks or accusations in question have been made during a
hearing, the provisions of the Code of Criminal Procedure
(Strafprozeßordnung) apply. If, on the other hand, they have
been made in writing, the applicable provisions are those of the
Courts Act (Gerichtsorganisationsgesetz) taken together with
those of the Code of Civil Procedure (Zivilprozeßordnung). In
both cases the appeal procedure is governed by the Code of
Criminal Procedure.
A. Code of Criminal Procedure
1. Keeping order in oral proceedings
19. Article 233
"1. The presiding judge shall be responsible for
ensuring peace and order in the courtroom and the
propriety of behaviour appropriate to the dignity of the
court.
2. ...
3. Displays of approval or disapproval shall be
prohibited. The presiding judge shall have the right to
call to order anyone who disturbs the proceedings by such
displays or otherwise and, if need be, to order that the
courtroom be cleared or that individual members of the
public be removed. If there is any resistance or if the
disturbances are repeated, he may impose on the person
refusing to comply a pecuniary penalty not exceeding ten
thousand schillings or, if essential for maintaining
order, commit him to prison for a period not exceeding
eight days."
Article 235
"The presiding judge must ensure that no insults or
manifestly unfounded or irrelevant accusations are made
against anyone. If the accused, a private prosecutor
(Privatankläger), a civil party to the proceedings
(Privatbeteiligter), a witness or an expert has taken the
liberty of making such remarks, the court may, at the
request of the person against whom the remarks were
directed or the public prosecutor, or of its own motion,
impose a pecuniary penalty not exceeding ten thousand
schillings or, where essential for maintaining order,
commit him to prison for a period not exceeding eight
days."
Article 237 para. 1
"Decisions taken under Articles 233 to 235 ... shall be
enforceable immediately. No appeal shall lie against
them."
2. Criminal offences
20. Article 237 para. 2
"If the conduct referred to in the aforementioned
Articles amounts to a criminal offence, the provisions of
Article 278 shall be applied."
Article 278 para. 1
"If a criminal offence is committed in the courtroom
during the trial and the offender is caught in the act,
the court may, on an application by the competent
prosecutor and after hearing the accused and any
witnesses present, deal with the matter either
immediately by adjourning or at the end of the trial.
Appeals against decisions so taken shall not have a
suspensive effect."
Article 67
"No judge or registrar may perform any judicial functions
in criminal proceedings if he is himself the victim of
the offence ..."
3. Conversion of fines
21. Article 7
"1. Where a fine imposed under the Code of Criminal
Procedure proves to be wholly or partly irrecoverable,
the court must, in cases deserving of consideration,
adjust the amount of the fine, but otherwise convert it
into a period of imprisonment not exceeding eight days.
2. The provisions of the Act on the enforcement of
custodial sentences not exceeding three months shall be
applicable, in accordance with the purpose of the Act
(dem Sinne nach), to the enforcement of the aforesaid
sentences of imprisonment in default, the enforcement of
the custodial sentences provided for in the Code of
Criminal Procedure and the enforcement of coercive
imprisonment.
3. ..."
Under Article 114 para. 1 of the same Code, an appeal lies
against decisions to convert a fine into a sentence of
imprisonment in default.
B. Courts Act
Preserving propriety in written proceedings
22. Section 85 (1)
"[Pecuniary penalties; responsibility for keeping order
in the courtroom] Without prejudice to any criminal
proceedings, the court may impose a pecuniary penalty
(Article 220 of the Code of Civil Procedure) on parties
who in written applications in non-contentious matters
show disrespect for the court by making offensive attacks
or insult the opposing party, a representative,
authorised agents, witnesses or experts."
Section 97
"[Application to criminal proceedings] The provisions of
this Act shall apply to criminal matters in so far as
they are apt for that purpose and no special rules have
been made in provisions governing criminal procedure."
C. Code of Civil Procedure
Conversion of fines
23. Article 220
"1. A pecuniary penalty (Ordnungsstrafe) may not exceed
20,000 schillings ...
2. ...
3. In the event of inability to pay, a fine (Geldstrafe)
shall be converted into imprisonment. The length of
imprisonment shall be determined by the court, but may
not exceed ten days.
4. ..."
D. Criminal Code
24. The Criminal Code contains the following rules:
Article 18
"1. ...
2. A fixed-term custodial sentence may not be for less
than one day or more than twenty years."
Article 19
"1. Fines (Geldstrafen) shall be expressed as day-fines.
They shall not amount to less than two day-fines.
2. Day-fines shall be fixed according to the offender's
means and personal circumstances at the time of the
judgment at first instance. However, they shall not
amount to less than 30 schillings or more than
4,500 schillings.
3. If a fine proves to be irrecoverable, a sentence of
imprisonment in default shall be passed. One day's
imprisonment in default shall correspond to two
day-fines.
4. ..."
PROCEEDINGS BEFORE THE COMMISSION
25. Mr Putz applied to the Commission on 23 September 1991.
Relying on Article 6 paras. 1 and 3 and Article 13 (art. 6-1,
art. 6-3, art. 13) of the Convention, he complained that he had
had neither a fair hearing by an impartial tribunal nor any
effective remedy in respect of the decisions of the Austrian
courts whereby pecuniary penalties had been imposed on him for
disrupting court proceedings. He also alleged violations of
Articles 3, 7, 9, 10 and 17 (art. 3, art. 7, art. 9, art. 10,
art. 17) of the Convention.
26. On 3 December 1993 the Commission declared the first two
complaints admissible as regards the Wels Regional Court's
decisions of 2 and 8 April 1991 and the Linz Court of Appeal's
decision of 17 July 1991, and declared the remainder of the
application (no. 18892/91) inadmissible.
In its report of 11 October 1994 (Article 31) (art. 31),
it expressed the opinion that there had been a violation of
Article 6 paras. 1 and 3 (art. 6-1, art. 6-3) (ten votes to six)
and that it was unnecessary to consider the applicant's complaint
under Article 13 (art. 13) (unanimously). The full text of the
Commission's opinion and of the dissenting opinion contained in
the report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions - 1996), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT
27. In their memorial the Government asked the Court to hold
"1. that Article 6 para. 1 (art. 6-1) of the Convention
did not apply to the proceedings in question,
or alternatively,
2. that there has been no violation of Article 6
paras. 1 and 3 (art. 6-1, art. 6-3) of the Convention in
these proceedings".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION
28. The applicant relied on Article 6 paras. 1 and 3
(art. 6-1, art. 6-3) of the Convention, which provide:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public
hearing ... by an independent and impartial tribunal ...
...
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;
..."
In his submission, pecuniary penalties for disrupting
court proceedings were "criminal" in nature and had to be imposed
in a manner that satisfied the requirements of Article 6
(art. 6).
29. The Government disputed the applicability of that
provision to the penalties in issue, which, in their view, were
not "criminal" but disciplinary. At all events, the decisions
of the Austrian courts had not breached Article 6 (art. 6).
30. The Commission concluded that the offences of which the
applicant had been accused were to be classified as "criminal"
within the meaning of the Convention and considered that the
applicant had not had a fair hearing enabling him to exercise his
defence rights as guaranteed in Article 6 paras. 1 and 3
(art. 6-1, art. 6-3).
31. In order to determine whether Article 6 (art. 6) was
applicable under its "criminal" head, the Court will have regard
to the three alternative criteria laid down in its case-law (see
the following judgments: Engel and Others v. the Netherlands,
8 June 1976, Series A no. 22, p. 35, para. 82; Weber
v. Switzerland, 22 May 1990, Series A no. 177, pp. 17-18,
paras. 31-34; Demicoli v. Malta, 27 August 1991, Series A
no. 210, pp. 15-17, paras. 30-35; Ravnsborg v. Sweden,
23 March 1994, Series A no. 283-B, p. 28, para. 30; and, as the
most recent authority, Schmautzer v. Austria, 23 October 1995,
Series A no. 328-A, p. 13, para. 27).
A. Legal classification of the offence in Austrian law
32. It must first be ascertained whether the provisions
defining the offence in issue belong, according to the domestic
legal system, to criminal law.
In the instant case the pecuniary penalties imposed on
Mr Putz were based, firstly, on Article 235 of the Code of
Criminal Procedure and, secondly, on sections 85 (1) and 97 of
the Courts Act taken together with Article 220 of the Code of
Criminal Procedure, and not on provisions of the Criminal Code
(see paragraphs 19 and 22-23 above). The relevant provisions
confer powers on the presiding judge of the court to maintain
order during court proceedings, both oral and written. In the
case of offences classified as criminal in the Criminal Code,
Articles 237 para. 2 and 278 of the Code of Criminal Procedure
provide for a separate procedure (see paragraph 20 above). The
pecuniary penalties in question are not entered in the criminal
record and their amount does not depend on income as in criminal
law (see paragraph 24 above). These features tend to show that
Austrian law does not regard them as criminal penalties.
The Court accordingly considers, like the Government and
the Commission, that there is nothing to show that in the
national legal system the provisions covering disruptions of
court proceedings belong to criminal law.
B. Nature of the offence
33. The Court notes that in Austrian law unfounded accusations
or offensive remarks made at a hearing are punishable under
Article 235 of the Code of Criminal Procedure, whereas if such
accusations or remarks have been made in writing, the applicable
provisions are sections 85 (1) and 97 of the Courts Act taken
together with Article 220 of the Code of Civil Procedure. In
both cases punishment is laid down for behaviour judged to be
disruptive.
In this respect, the situation is similar to the one in
the Ravnsborg case. Rules enabling a court to sanction
disorderly conduct in proceedings before it are a common feature
of the legal systems of most of the Contracting States. Such
rules and sanctions derive from the inherent power of a court to
ensure the proper and orderly conduct of its own proceedings.
Measures ordered by courts under such rules are more akin to the
exercise of disciplinary powers than to the imposition of a
punishment for commission of a criminal offence (see the
Ravnsborg judgment previously cited, p. 30, para. 34).
The Court consequently considers, like the Government and
the Commission, that the kind of proscribed conduct for which the
applicant was fined in principle falls outside the ambit of
Article 6 (art. 6). The courts may need to respond to such
conduct even if it is neither necessary nor practicable to bring
a criminal charge against the person concerned (ibid.).
C. Nature and degree of severity of the penalty
34. Notwithstanding the non-criminal nature of the proscribed
misconduct, the nature and degree of severity of the penalty that
the person concerned risked incurring - the third criterion - may
bring the matter into the "criminal" sphere (loc. cit.,
pp. 30-31, para. 35).
35. The applicant drew attention to the large amount of the
pecuniary penalties imposed on him; such fines could be larger
than those imposed for a criminal offence. Furthermore, as the
amount of the latter was fixed according to income and he had
been bankrupt, they would even have been smaller in his case.
36. The Commission was of the opinion that the penalties
imposed in the case were large enough to warrant classifying the
offences as "criminal" under the Convention.
37. The Court notes that Article 235 of the Code of Criminal
Procedure concerning responsibility for keeping order at hearings
provides for the imposition of a fine not exceeding ATS 10,000
or, where essential for maintaining order, a custodial sentence
not exceeding eight days. If the fine proves to be
irrecoverable, the custodial sentence will be for a term of at
most eight days (Article 7 of the Code of Criminal Procedure -
see paragraph 21 above). As regards written proceedings,
Article 220 of the Code of Civil Procedure provides for the
imposition of a fine not exceeding ATS 20,000 and, in the event
of inability to pay, a custodial sentence not exceeding ten days.
In the instant case the Austrian courts sentenced Mr Putz to pay
fines of ATS 5,000, 7,500 and 10,000 (see paragraphs 8, 10 and
15 above). Two of them were converted into prison sentences, but
after payment the applicant did not have to serve these (see
paragraphs 9 and 11 above).
In this respect, the Court notes a number of
dissimilarities between the instant case and the Ravnsborg case,
in which the amount of the fines could not exceed 1,000 Swedish
kronor and the decision to convert them into custodial sentences
required a prior hearing of the person concerned. This finding,
however, is qualified by three features of the instant case:
firstly, as in the Ravnsborg case, the fines are not entered in
the criminal record; secondly, the court can only convert them
into prison sentences if they are unpaid, and an appeal lies
against such decisions (see paragraph 21 above), as it does
against custodial sentences imposed straight away at the hearing
where that course was essential for maintaining order; lastly,
whereas in the Ravnsborg case the term of imprisonment into which
a fine could be converted ranged from fourteen days to three
months, in the instant case it cannot exceed ten days.
However real they may be, the dissimilarities, which
reflect the characteristics of the two national legal systems,
therefore do not appear to be decisive. In both cases the
penalties are designed to enable the courts to ensure the proper
conduct of court proceedings (see paragraph 33 above).
Having regard to all these factors the Court considers,
like the Government, that what was at stake for the applicant was
not sufficiently important to warrant classifying the offences
as "criminal".
D. Conclusion
38. In sum, Article 6 (art. 6) did not apply to the matters
complained of and there has therefore been no breach of it.
II. ALLEGED VIOLATION OF Article 13 (art. 13) OF THE
CONVENTION
39. Mr Putz also maintained that the lack of an effective
remedy against the Wels Regional Court's decisions of 2 and
8 April 1991 and the Linz Court of Appeal's decision of
17 July 1991 had infringed Article 13 (art. 13) of the
Convention, which provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
40. In its report the Commission, having expressed the opinion
that there had been a breach of Article 6 (art. 6), considered
it unnecessary to examine this complaint.
41. The Court points out that Article 13 (art. 13) guarantees
the availability of a remedy at national level to allege
non-compliance with the substance of the Convention rights and
freedoms in whatever form they may happen to be secured in the
domestic legal order (see the Boyle and Rice v. the United
Kingdom judgment of 27 April 1988, Series A no. 131, p. 23,
para. 52). In the instant case, however, it has held that there
was no "criminal charge" and, accordingly, that Article 6
(art. 6) did not apply. The applicant therefore cannot claim to
be the victim of a breach of rights protected by that provision.
Consequently, his complaint lies outside the ambit of Article 13
(art. 13).
FOR THESE REASONS, THE COURT
1. Holds by seven votes to two that Article 6 (art. 6) of
the Convention did not apply to the pecuniary penalties
imposed on the applicant and that there has accordingly
been no breach of it;
2. Holds by seven votes to two that Article 13 (art. 13) of
the Convention did not apply in the instant case and that
there has accordingly been no breach of it.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
22 February 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 55 para. 2 of Rules of Court B, the following
separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr De Meyer;
(b) dissenting opinion of Mr Jungwiert.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE DE MEYER
(Translation)
1. This case concerns someone who, during criminal
proceedings against him, had fines imposed on him, with prison
sentences in default of payment, for having made accusations
against the court on various occasions both at hearings and in
his pleadings.
The Court has held that Article 6 (art. 6) of the
Convention does not apply to such penalties.
I cannot approve of such a narrow interpretation.
2. The instant case is not the first one in which the Court
has had to deal with the maintenance of order in court
proceedings.
There have already been the Weber case, which concerned
a fine imposed by the President of the Criminal Cassation
Division of the Canton of Vaud on a complainant who had breached
the confidentiality of a judicial investigation (1), and the
Ravnsborg case, which concerned three fines imposed by the
Göteborg District Court and by the Court of Appeal for Western
Sweden on a litigant who had made improper remarks in his written
observations (2).
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1. Weber v. Switzerland judgment of 22 May 1990, Series A
no. 177
2. Ravnsborg v. Sweden judgment of 23 March 1994, Series A
no. 283-B
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Both these cases were decided by the Court in the light
of the three criteria it laid down nearly twenty years ago for
distinguishing criminal law from other sanction systems, in
particular from disciplinary provisions, namely: the
classification in the law of the State concerned, the nature of
the offence and the degree of severity of the penalty (3).
_______________
3. Engel and Others v. the Netherlands judgment of
23 November 1976, Series A no. 22, pp. 34-35, para. 82
_______________
The Court has adopted the same approach in deciding the
instant case.
Experience appears to show that these criteria are not
very satisfactory.
3. The Court recognised at the outset, in the Engel judgment,
that the "indications" afforded by the first criterion, the
classification in national law, "have only a formal and relative
value" (4).
_______________
4. Ibid., p. 35, para. 82
_______________
This criterion does indeed give too much scope to the
differences between States' legal systems.
And in fact it does not appear ever to have served to
influence the Court in one direction or the other.
The Court barely touches on this aspect of the question
in the Weber judgment (5). In the Ravnsborg case it resigned
itself to noting that the "formal classification under Swedish
law [was] open to differing interpretations" (6).
_______________
5. Weber judgment previously cited, pp. 17-18, para. 31
6. Ravnsborg judgment previously cited, p. 30, para. 33
_______________
In the present case it notes that various features "tend
to show that Austrian law does not regard [the fines in question]
as criminal penalties" and that "there is nothing to show that
in the national legal system the provisions covering disruptions
of court proceedings belong to criminal law" (7).
_______________
7. Paragraph 32 of the present judgment
_______________
What are those features and what is their persuasive
weight?
How is it relevant that "the pecuniary penalties imposed
on Mr Putz were based" not on the Criminal Code but on the Code
of Criminal Procedure, the Courts Act and the Code of Civil
Procedure? In other cases the Court has held that "the character
of the legislation which governs how the matter is to be
determined" is of little consequence for determining whether
there is a "contestation (dispute) over civil rights and
obligations" (8) and that "whether or not a right is to be
regarded as civil within the meaning of this expression in the
Convention must be determined by reference to the substantive
content and effects of the right - and not its legal
classification - under the domestic law of the State
concerned" (9). Why should matters be any different when it
comes to determining what falls within the criminal sphere?
_______________
8. Ringeisen v. Austria judgment of 16 July 1971, Series A
no. 13, p. 39, para. 94. See also the König v. Germany judgment
of 28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89, and
the Baraona v. Portugal judgment of 8 July 1987, Series A
no. 122, pp. 17-18, paras. 42 and 43
9. König judgment previously cited, p. 30, para. 89
_______________
Furthermore, what does it matter that the procedure laid
down for imposing the fines is different from the one laid down
for "offences classified as criminal in the Criminal Code", that
the fines are not entered in the criminal record or that their
amount does not depend on income? None of those can justify an
exemption from the obligation to comply with the principles of
a fair trial. That would be too easy.
4. The second criterion, the nature of the offence, is,
according to what the Court said in the Engel judgment, "a factor
of greater import" (10).
_______________
10. Engel judgment previously cited, loc. cit. See also the
Weber judgment previously cited, p. 18, para. 32
_______________
The Court spelled out its significance from the point of
view of distinguishing criminal law from disciplinary provisions
in the Weber judgment, when it said that "disciplinary sanctions
are generally designed to ensure that the members of particular
groups comply with the specific rules governing their
conduct" (11).
_______________
11. Weber judgment previously cited, p. 18, para. 33
_______________
As regards court proceedings, it said in the same judgment
that "the parties ... only take part in the proceedings as people
subject to the jurisdiction of the courts" and that "they
therefore do not come within the disciplinary sphere of the
judicial system". Noting that Article 185 of the Vaud Code of
Criminal Procedure, under which a fine had been imposed on
Mr Weber because he had breached the confidentiality of a
judicial investigation, affected "potentially ... the whole
population", it found that the "offence" it defined and to which
it attached a "punitive sanction" was "a `criminal' one for the
purposes of the second criterion" (12).
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12. Ibid., loc. cit.
_______________
It is difficult to see in what respect, in this
connection, the Ravnsborg and Putz cases, to which, in the
Court's view, Article 6 (art. 6) did not apply as the measures
ordered against the two applicants were "more akin to the
exercise of disciplinary powers than to the imposition of a
punishment for commission of a criminal offence" (13), could
differ from the Weber case. Just like Mr Weber, Mr Putz and
Mr Ravnsborg did no more than "take part in the proceedings as
people subject to the jurisdiction of the courts" and the
provisions that were applied to them, like those that were
applied to Mr Weber, affected "potentially ... the whole
population".
_______________
13. Ravnsborg judgment previously cited, p. 30, para. 34, and
paragraph 33 of the present judgment
_______________
Is disruptive or disorderly conduct in proceedings before
a court (14) of a different "nature", as an offence, from
disruptive or disorderly conduct elsewhere or from other forms
of contempt of court (15), such as breaching the confidentiality
of a judicial investigation?
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14. Paragraph 33 of the present judgment
15. In English law contempt in the face of the court and
contempt out of court are merely two facets of the single offence
of contempt of court. See the Sunday Times v. the United Kingdom
judgment of 26 April 1979, Series A no. 30, pp. 14-16, para. 18
_______________
What objective and reasonable justification can there be
for a difference of treatment such that, by stating that this
kind of conduct "falls outside the ambit of Article 6
(art. 6)" (16), one deprives the person guilty of it of the
safeguards of a fair trial?
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16. Paragraph 33 of the present judgment
_______________
Does the "nature of the offence" allow of such a
distinction?
5. The third criterion, according to the Engel judgment, must
be "the degree of severity of the penalty that the person
concerned risks incurring" (17).
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17. Engel judgment previously cited, loc. cit.
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Applying this criterion leads to odd results.
The fine imposed on Mr Weber was 300 Swiss francs, the
maximum allowed by the law being 500 francs; in default of
payment, it was convertible into days of imprisonment, at the
rate of one day's imprisonment for every thirty francs of fine,
which amounted to ten days in the applicant's case, the maximum
being sixteen days. The Court held in that case that "what was
at stake was thus sufficiently important to warrant classifying
the offence with which the applicant was charged as a criminal
one under the Convention" (18). Currently, 300 and 500 Swiss
francs are equivalent to nearly 1,300 and a little over
2,100 French francs respectively.
_______________
18. Weber judgment previously cited, p. 18, para. 34
_______________
In contrast, in the cases of Mr Ravnsborg and Mr Putz the
Court held that "what was at stake for the applicant was not
sufficiently important to warrant classifying the offences as
`criminal'" (19).
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19. Ravnsborg judgment previously cited, p. 31, para. 35, and
paragraph 37 of the present judgment
_______________
The three fines imposed on Mr Ravnsborg were each of
1,000 Swedish kronor, the maximum provided; in default of
payment, they could be converted into sentences of fourteen days'
to three months' imprisonment. Currently, 1,000 Swedish kronor
are worth a little under 750 French francs, which gives a total
of a little over 2,200 francs for the three fines together.
In the instant case the fines imposed on Mr Putz were of
5,000 and 7,500 Austrian schillings, converted into three and
five days' imprisonment respectively, as regards the incidents
at the hearings, and of 10,000 schillings as regards the written
accusations; the maximum was 10,000 schillings or eight days in
respect of the former offences and 20,000 schillings or ten days
in respect of the latter (20). Currently 5,000 Austrian
schillings are worth more than 2,500 French francs,
7,500 schillings are worth a little under 3,700 francs, 10,000
a little under 4,900 francs, and 20,000 nearly 9,800 francs.
_______________
20. Paragraphs 8-11, 15 and 19-24 of the present judgment
_______________
A comparison of these various amounts (21) and of the
lengths of the corresponding prison terms in default clearly
shows the inadequacy of the third criterion.
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21. It may also be remembered that in the Öztürk v. Germany
case, which the Court held to be criminal in nature, the fine in
issue was of 60 German marks, the maximum being 1,000 marks
(judgment of 21 February 1984, Series A no. 73, p. 9, para. 11,
and p. 10, para. 18); those amounts are currently equivalent to
a little less than 210 French francs and a little under
3,500 francs.
_______________
But that is not all. Does it really have to be accepted
that a person does not have the right to be tried properly where
only a small fine or a short term of imprisonment is at stake?
And if so, where does the threshold of severity lie that triggers
entitlement to that right? What amount? How many days'
imprisonment?
The severity of a penalty may be taken into consideration
in order to ascertain that it was fair, in particular in the
light of the proportionality principle, or to examine more
closely the way in which it was imposed, or again, to determine
if it requires there to be a remedy (22), but it is unsuitable
as a criterion for the applicability of the guarantees in
Article 6 (art. 6) of the Convention.
_______________
22. As to the need for a remedy, Article 2 of Protocol No. 7
(P7-2) merely makes explicit what is already implicit in the
very concept of a fair trial
_______________
6. I think it would be more in accordance with the object,
aim and spirit of the Convention (23) to adopt a simpler, more
common-sense method of reasoning.
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23. Here too it is necessary to "seek the interpretation that
is most appropriate in order to realise the aim and achieve the
object of the treaty, not that which would restrict to the
greatest possible degree the obligations undertaken by the
Parties" (Wemhoff v. Germany judgment of 27 June 1968, Series A
no. 7, p. 23, para. 8)
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To begin with, as regards disciplinary provisions, rather
than contrast these with criminal law, it should be recognised
that they are part of it and that they constitute a special
branch of it in that they make up the criminal law peculiar to
a specific body or group.
If there is a distinction to be made, it can only be
between this special criminal law, applicable exclusively to
members of the body or group, and the general criminal law,
applicable to everyone.
The same is true of any other sanction system that might
be regarded as akin to disciplinary provisions (24) or as
distinct, on whatever ground, from the general criminal law.
_______________
24. Paragraph 33 of the present judgment. Ravnsborg judgment
previously cited, p. 30, para. 34
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It seems to me that whatever names may be given to things,
any sanction imposed on someone on account of conduct considered
reprehensible is a "penalty" (25) and accordingly, by its very
"nature", comes within the criminal sphere. This must certainly
be true of any pecuniary or custodial sanction. Such sanctions
can only, in my opinion, be imposed on someone by, or under the
supervision of, a judicial authority that affords the person
concerned the safeguards laid down more or less perfectly in
Article 6 (art. 6) of the Convention.
_______________
25. Lawyer's jargon must not diverge too widely from everyday
language. Above all, it must not serve to restrict fundamental
rights
_______________
It is for the States to ensure this, under the supervision
of the Court.
7. The distinction made hitherto between criminal and "other"
proceedings, such as disciplinary proceedings, may be explained
in part by the fear of having to apply those safeguards to these
proceedings too.
It is indeed all too true that what goes on in these
"other" proceedings often leaves much to be desired in this
respect.
That is not, in my view, a sufficient reason for washing
our hands of them. On the contrary, it would be appropriate to
bring some order into them, albeit while taking due account of
the special features of the situations governed by these other
sanction systems.
Thus where, for example, discipline within the armed
forces or a code of conduct within a professional association is
involved, the judicial nature, independence and impartiality of
the authority imposing the sanction do not necessarily have to
be assessed in the same way as where a case is being tried under
the ordinary criminal law. When exercising disciplinary powers,
a hierarchical superior or a professional disciplinary council
does not have to be regarded a priori as being a tribunal less
independent or less impartial than an "ordinary" court or jury
in relation to an offence under the ordinary law (26).
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26. See, as regards professional disciplinary bodies, the H.
v. Belgium judgment of 30 November 1987, Series A no. 127-B,
pp. 34-35, paras. 50-52
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But at all events, in the fields covered by special
sanction systems as well as under the general criminal law, the
trial must be a fair one. In order for it to be so, it is
necessary, among other things, that the sanction should be
reasonably proportionate to the offence and that an adequate
appeal against it should lie if it exceeds a certain threshold
of severity.
8. In the Ravnsborg case it was scarcely in doubt that the
applicant had no cause to complain of a breach of his fundamental
rights.
In three pleadings, he had insulted - without making any
specific charges - the Board of the Principal Guardian, the other
boards and councils of the municipality of Göteborg, the Swedish
Supreme Court and several members of the Göteborg District
Court (27).
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27. Ravnsborg judgment previously cited, p. 23, para. 10, p. 24,
para. 12, and p. 25, para. 16
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I think it was obvious that these flagrant actions could
be punished summarily, without further formalities and, in
particular, without any hearing, by moderate fines, as they were
in the first case by the Göteborg District Court and in the
second and third cases by the Court of Appeal for Western Sweden.
This was all the more permissible as the applicant's intemperate
language had not been directed against the courts themselves and
these would have had discretion to convert the fines into prison
sentences only on an application by the public prosecutor and
after summoning the prosecution and the person concerned to a
hearing (28).
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28. Ibid., p. 27, para. 24
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In the interests of the proper, undisturbed administration
of justice, the courts must be able to punish in this way those
who indulge in such lapses of behaviour.
9. The instant case resembles the Ravnsborg case in that the
third fine was imposed on Mr Putz by the Linz Court of Appeal on
account of accusations he had made in written observations
submitted to that court against the presiding judge of the Wels
Regional Court and, more vaguely, against the "judges and
prosecutors concerned" at that court (29).
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29. Paragraph 15 of the present judgment
_______________
The situation was slightly different as regards the first
two fines, which were imposed on Mr Putz by the Wels Regional
Court on account of accusations he had made out of court against
the presiding judge of the court (30).
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30. Paragraphs 8 and 10 of the present judgment
_______________
In itself, despite appearances, this did not necessarily
entail a breach of Mr Putz's right to a fair trial. A court must
be able to enforce respect for its authority (31).
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31. Insulting a court or making accusations against it is not
sufficient to entitle someone to claim that on that account it
is no longer an "independent and impartial tribunal established
by law" or that it can no longer give the case a "fair" hearing.
_______________
On the other hand, each of the three fines imposed on
Mr Putz was appreciably heavier than each of those incurred by
Mr Ravnsborg. This severity could raise questions on the basis
of the proportionality principle; above all, it required there
to be a remedy which would have made it possible to review both
compliance with that principle and the merits of the punishment.
But that is not all. It was not simply a question of
insults, as in Mr Ravnsborg's case; Mr Putz's main allegation was
that his judges at Wels had behaved unlawfully and unfairly
towards him.
In this connection, his counsel, Mr Schwab, pointed out
to the Court at the hearing on 23 October last, without being
contradicted by the representatives of the respondent Government,
that no incident of that kind had occurred when the applicant's
case was heard by the Innsbruck and Vienna courts.
The case therefore, it seems, came not so much within the
field of maintaining order in proceedings as within that of
challenging a judge, bringing an action against a judge for
misuse of his authority or disqualification on the ground of
reasonable suspicion of bias.
This aspect of the case, taken together with the fact that
the applicant had no remedy against the decisions in issue (32),
leads me to think that he did not have a fair trial.
_______________
32. Paragraphs 8, 10, 15 and 19 of the present judgment
_______________
10. Because there were no remedies, there has also been, in
my opinion, a breach of Article 13 (art. 13) of the Convention.
DISSENTING OPINION OF JUDGE JUNGWIERT
(Translation)
Unlike the majority of the Chamber, I have reached the
conclusion that there have been breaches of Article 6 and
Article 13 (art. 6,
art. 13) in the instant case.
The majority note certain dissimilarities between this
case and the Ravnsborg case but do not regard them as decisive.
In their opinion, what was at stake for the applicant was not
sufficiently important to warrant classifying the offences as
"criminal".
What appears to me to be decisive is the degree of
severity of the pecuniary penalties and their convertibility into
prison sentences.
It is important to note that the penalties in this case
are much more severe than in the Ravnsborg case. The fact that
the applicant did not have to serve the prison sentences does not
alter that.
I consider that the nature and degree of severity of the
penalties are important not only in this particular case but in
Austrian law in general. The nature and severity of the
penalties are further reinforced by the nature of the proceedings
(criminal and civil). A pecuniary penalty of ATS 10,000 (and
which could be as high as ATS 20,000) is at the level of a
criminal punishment. The criminal nature of the penalty is much
more apparent still if account is taken of its possible
conversion into a prison sentence. I find it difficult to
describe as disciplinary a custodial penalty of up to "only"
eight or ten days. Furthermore, if the applicant did not have
to serve the prison sentences of three and five days, it was
solely because he had earlier paid the fines. I consider that
the penalties in issue were sufficiently important for them to
be described as "criminal" within the meaning of the Convention.
I have accordingly reached the conclusion that Article 6 (art. 6)
of the Convention applies in the instant case and that there has
been a breach of it.
As regards the submissions on compliance with Article 6
(art. 6), I moreover entirely agree with the Commission's opinion
as expressed in paragraphs 57-70 of its report.
In the proceedings the applicant did not have an effective
remedy. Having found that there has been a breach of the
applicant's rights under Article 6 (art. 6) of the Convention,
I do not consider it necessary to examine in detail the issue of
the applicability of, and compliance with, Article 13 (art. 13)
of the Convention, which, in my opinion, has also been breached.
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