AS TO THE ADMISSIBILITY OF
Application No. 22541/93
by Bernhard MARTE and Walter ACHBERGER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 23 August 1993 by
Bernhard MARTE and Walter ACHBERGER against Austria and registered on
27 August 1993 under file No. 22541/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
1 February 1995, and the observations in reply submitted by the
applicants on 5 October 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizens born in 1970. The first
lives in Wolfurt and the second lives in Lauterach. They are
represented before the Commission by Mr. Wilfried Ludwig Weh, a lawyer
practising in Bregenz.
The facts of the case as submitted by the parties may be
summarised as follows.
On 23 August 1990 the applicants were convicted by the Feldkirch
Regional Court (Landesgericht) of resisting the forces of the State.
Both had confessed. They had been accused in the charge (Strafanzeige)
of 3 July 1990 of insulting policemen who had come to remove them from
the bar at a summer festival ("Arschlöcher, Scheiß Bullen, Ihr könnt
uns am Arsch lecken"), of attempting to pull themselves away from the
policemen, and of injuring the policemen in the ensuing scuffle.
Administrative criminal proceedings were brought against both
applicants. On 13 September 1990 the first applicant was fined AS
6,000 with nine days' detention in default for (i) causing a breach of
the peace by conduct likely to cause annoyance, contrary to Section IX
(1)(1) of the Introductory Law of the Administrative Procedure Laws,
by his behaviour before his arrival of the police at the summer
festival, (ii) offending public decency by insulting the policemen,
contrary to Section 18 (2) of the Morals (Policing) Act
(Sittenpolizeigesetz), and (iii) offending public decency, contrary to
the same provision, by insulting the policemen in the presence of other
persons.
On the same day the second applicant was fined AS 11,000 with
nine days' detention in default for (i) causing a breach of the peace
by conduct likely to cause annoyance, contrary to Section IX (1)(1) of
the Introductory Law of the Administrative Procedure Laws, by his
behaviour before the arrival of the police at the summer festival, (ii)
offending public decency by insulting the policemen, contrary to
Section 18 (2) of the Morals (Policing) Act, and (iii) attacking a
named policeman in the presence of other persons, contrary to
Section IX (1)(1).
The applicants appealed to the Vorarlberg Security Authority
(Landessicherheitsdirektion) in respect of the penal orders under the
Introductory Law, and to the Vorarlberg Regional Government
(Landesregierung) in respect of the penal orders under the Morals
(Policing) Act.
The applicants' appeals to the Vorarlberg Security Authority in
respect of the penal orders under the Introductory Law were dismissed
on 5 August 1991 and the penal orders were confirmed.
The Constitutional Court (Verfassungsgerichtshof) declined to
deal with the applicants' constitutional complaints on 17 June 1992.
In connection with the complaints under Article 6 of the Convention,
it referred to the Austrian reservation to Article 5 of the Convention.
In connection with Article 4 of Protocol No. 7, the Constitutional
Court referred to the declaration made by Austria on ratifying that
Protocol. It noted that the declaration had the force of
constitutional law, and found that the constitutional complaint had no
reasonable prospect of success. It also noted that the case was not
excluded from the jurisdiction of the Administrative Court
(Verwaltungsgerichtshof).
The Administrative Court dismissed the second applicant's
administrative complaint on 25 January 1993 (received by the
applicants' representative on 1 March 1993). It noted that
administrative law provided that one offence should not be prosecuted
twice in administrative proceedings, but continued that no provision
of law excluded the prosecution of administrative offences where
criminal proceedings had taken place. The first applicant's
administrative complaint was dismissed on 22 March 1993 (received by
the applicants' representative on 29 April 1993). The Administrative
Court referred to its decision of 25 January 1993.
The applicants' appeals to the Vorarlberg Regional Government in
respect of the offence under the Morals (Policing) Act were largely
dismissed on 13 and 11 June 1991. The fines imposed were reduced
slightly.
The applicants' constitutional complaints against the decisions
of the Vorarlberg Regional Government were included in the
Constitutional Court's decision of 17 June 1992 not to deal with the
constitutional complaints.
The Administrative Court dismissed the second applicant's
administrative complaints on 22 February 1993 (received by the
applicants' representative on 17 March 1993). It again noted that
administrative law provided that one offence should not be prosecuted
twice in administrative proceedings, but continued that no provision
of law excluded the prosecution of administrative offences where
criminal proceedings had taken place. It considered that the
provisions of Section 18 of the Morals (Policing) Act called for a
different judgment of human behaviour from Articles 115 (insult:
Beleidigung) or 267 (resisting the forces of the State: Widerstand
gegen die Staatsgewalt) of the Criminal Code (Strafgesetzbuch), so that
the principle of the separation of powers had not been breached. The
first applicant's administrative complaint was dismissed on
22 March 1993 (received by the applicants' representative on
29 March 1993). The Administrative Court referred to its decision of
22 February 1993.
COMPLAINTS
The applicants allege that the scope of review by the
Administrative and Constitutional Courts of the decisions of the
administrative authorities was so narrow that it did not comply with
Article 6 para. 1 of the Convention. They also consider that the
refusal of the Constitutional Court to deal with their constitutional
complaints itself violates Article 6 of the Convention.
The applicants also allege a violation of Article 4 of Protocol
No. 7 to the Convention in that they were convicted in ordinary
criminal proceedings of resisting the forces of the State, and were
then subsequently convicted of administrative offences which alleged
substantially the same misbehaviour.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 August 1993 and registered
on 27 August 1993.
The Government's observations were submitted on 1 February 1995
and the applicants' observations in reply on 5 October 1995.
THE LAW
1. The applicants allege a violation of Article 6 (Art. 6) of the
Convention. The Government consider that the case does not disclose
a violation of Article 6 (Art. 6). They also contest the admissibility
of the whole application for non-observance of the six months time
limit contained in Article 26 (Art. 26) of the Convention.
As to the Government's contention that the application may be
inadmissible for non-compliance with the six months rule, the
Commission notes that the final decisions in the case were
25 January 1993 (in respect of the second applicant's conviction under
the Introductory Law), 22 February 1993 (in respect of the second
applicant's conviction under the Morals (Policing) Act, 22 March 1993
(two decisions, one in respect of the first applicant's conviction
under the Introductory Law, and one in respect of the first applicant's
conviction under the Morals (Policing) Act). The decisions were
received by the applicants' representative on 1 March 1993,
17 March 1993 and 29 April 1993 (two) respectively.
The application was introduced on 23 August 1993, that is less
than six months after the applicants' representative received the first
of the decisions. Accordingly, the Commission is not prevented by the
six months rule from dealing with the case.
The applicants also allege a violation of Article 4 of Protocol
No. 7 (P7-4) to the Convention in that they were convicted twice, that
is, once before the criminal courts and once before the administrative
authorities, in respect of the same behaviour.
In connection with this complaint, the Government do not contest
the admissibility and merits of the application to the extent that it
is on all fours with the case of Gradinger (see now, Eur. Court H.R.,
Gradinger judgment of 23 October 1995, to be published in Series A
no. 328-C). They note, however, that while the proceedings under the
Introductory Act were concerned with a disturbance of public order,
those under the Morals (Policing) Act referred to an outrage upon
public decency. They consider that disturbing order in a public place
is not the same as an outrage on public decency.
The Commission has had regard to the facts of the application,
to the parties' observations, and to the case-law of the European Court
of Human Rights. It finds that the application raises questions under
the Convention which cannot at this stage be rejected as being
manifestly ill-founded, and which require to be determined on the
merits. No other ground of inadmissibility has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy