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)
Full & Egal Universal Law Academy