EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 22541/93
Bernhard Marte and Walter Achberger
against
Austria
REPORT OF THE COMMISSION
(adopted on 9 April 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-26) . . . . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 27-45) . . . . . . . . . . . . . . . . . . . . .5
A. Complaints declared admissible
(para. 27). . . . . . . . . . . . . . . . . . . . .5
B. Points at issue
(para. 28). . . . . . . . . . . . . . . . . . . . .5
C. As regards Article 6 of the Convention
(paras. 29-34). . . . . . . . . . . . . . . . . . .5
CONCLUSION
(para. 34). . . . . . . . . . . . . . . . . . . . .6
D. As regards Article 4 of Protocol No. 7 to the Convention
(paras. 35-43). . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 43). . . . . . . . . . . . . . . . . . . . .7
E. Recapitulation
(paras. 44-45). . . . . . . . . . . . . . . . . . .7
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . .8
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are Austrian citizens born in 1970. The first
lives in Wolfurt and the second in Lauterach. They were represented
before the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.
3. The application is directed against Austria. The respondent
Government were represented by Mr. F. Cede, Agent of the Austrian
Federal Government.
4. The case concerns administrative criminal proceedings for public
order offences, and their interaction with criminal proceedings which
were also brought against the applicants.
B. The proceedings
5. The application was introduced on 23 August 1993 and registered
on 27 August 1993.
6. On 11 May 1994 the Commission (First Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government without inviting the parties,
at that stage of the proceedings, to submit written observations on the
admissibility and merits of the application.
7. On 18 October 1994 the Commission (First Chamber) resumed its
examination of the case and decided to request the Government whether,
in the light of the Article 31 Reports adopted on 19 May 1994 in
similar cases, they wished to waive the possibility of submitting
observations on the admissibility and merits of the application and,
if they did not, to request the parties to submit their observations
on the admissibility and merits of the case.
8. The Government submitted their observations on 1 February 1995.
The applicant replied on 5 October 1995.
9. On 17 January 1996 the Commission declared the application
admissible.
10. The text of the Commission's decision on admissibility was sent
to the parties on 29 January 1996 and they were invited to submit such
further information or observations on the merits as they wished. No
such observations were submitted.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
13. The text of this Report was adopted on 9 April 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. The Commission's decision on the admissibility of the application
is annexed hereto.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
17. 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.
18. 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 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
(Sittenpolizeigesetz), and (iii) offending public decency, contrary to
the same provision, by insulting the policemen in the presence of other
persons.
19. 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).
20. 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.
21. 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.
22. 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).
23. 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.
* * *
24. 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.
25. 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.
26. 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.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
27. The Commission has declared admissible the applicants' complaints
concerning the review of the administrative decisions by the
Constitutional and Administrative Courts, and the complaints that the
applicants were convicted twice in respect of the same behaviour.
B. Points at issue
28. The points at issue in the present case are as follows:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention;
- whether there has been a violation of Article 4 of Protocol No. 7
(P7-4) to the Convention.
C. As regards Article 6 (Art. 6) of the Convention
29. Article 6 (Art. 6) of the Convention provides, so far as
relevant, as follows:
"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 ... "
30. The applicants claim that they did not have the benefit of a
"tribunal" in the administrative criminal proceedings against them.
31. The Government do not contest the merits of the application to
the extent that it is on all fours with the case of Gradinger (Eur.
Court HR, Gradinger v. Austria judgment of 23 October 1995, Series A
no. 328-C).
32. The Commission recalls that in a series of judgments (Eur. Court
HR, Schmautzer v. Austria, Umlauft v. Austria and Gradinger v. Austria
judgments of 23 October 1995, Series A no. 328-A, 328-B and 328-C, and
Pramstaller v. Austria, Palaoro v. Austria and Pfarrmeier v. Austria,
Series A no. 329-A, 329-B and 329-C), the European Court of Human
Rights found that the proceedings determined a "criminal charge" within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, that the
Austrian reservation to Article 5 (Art. 5) did not apply to the
criminal administrative proceedings at issue, and that neither the
Constitutional Court (Verfassungsgerichtshof) nor the Administrative
Court (Verwaltungsgerichtshof) had the "full jurisdiction" required by
Article 6 (Art. 6) in criminal cases.
33. In the present case, too, the administrative criminal proceedings
were considered by the Constitutional Court and the Administrative
Court, and those courts had the same jurisdiction as they had in the
cases of Schmautzer and others.
CONCLUSION
34. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
D. As regards Article 4 of Protocol No. 7 (P7-4) to the Convention
35. Article 4 of Protocol No. 7 (P7-4) reads, so far as relevant, as
follows:
"1. No one shall be liable to be tried or punished again
in criminal proceedings under the jurisdiction of the same
State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal
procedure of that State."
36. The applicants claim that they were convicted first in ordinary
criminal proceedings and then in administrative criminal proceedings
in respect of substantially the same behaviour.
37. The Government do not contest the merits of the application to
the extent that it is on all fours with the case of Gradinger (Eur.
Court HR, Gradinger v. Austria judgment of 23 October 1995, 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.
38. The Commission recalls that in the above-mentioned Gradinger
judgment the European Court of Human Rights found (at p. 65, para. 51)
that the Austrian declaration to Article 4 of Protocol No. 7 (P7-4) did
not comply with the requirements of Article 64 (Art. 64) of the
Convention. The same applies in the present case.
39. In the above-mentioned Gradinger case, the Court was aware
(at p. 66, para. 55) that "the provisions in question differ not only
as regards the designation of the offences but also, more importantly,
as regards their nature and purpose. It further [observed] that the
offence provided for in Section 5 of the Road Traffic Act represents
only one aspect of the offence ... under Article 81 para. 2 of the
Criminal Code. Nevertheless, both impugned decisions were based on the
same conduct. Accordingly, there has been a breach of Article 4 of
Protocol No. 7 (P7-4)."
40. The Commission recalls that in Gradinger the criminal and
administrative authorities made contradictory findings on one
particular factual element, namely the amount of alcohol in the
applicant's blood. In the present case, it is not as clear as in that
case that the facts in the respective proceedings were identical. The
applicants in the present case were convicted by the Feldkirch Regional
Court of resisting the forces of the State. The factual basis for the
criminal convictions was insulting policemen who had come to remove
them from the bar at a summer festival, attempting to pull themselves
away from the policemen, and injuring the policemen in the ensuing
scuffle.
41. The factual basis of the first applicant's administrative
convictions was his behaviour before the arrival of the police at the
festival, and insulting the policemen when they arrived. The factual
basis for the second applicant's administrative convictions was his
behaviour before the arrival of the police, and attacking a policeman.
42. The Commission finds, and neither the findings of the
Administrative Court nor the pleadings of the Government contest this
finding, that the factual bases for the applicants' criminal and
administrative convictions overlapped to such an extent that in the
second proceedings they were "tried or punished again ... for an
offence for which [they had] already been finally ... convicted" in
Austria. As in the case of Gradinger, the fact that the nature and
purpose of the offences is different cannot affect the position.
CONCLUSION
43. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 4 of Protocol No. 7 (P7-4) to the
Convention.
E. Recapitulation
44. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention (para. 34).
45. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 4 of Protocol No. 7 (P7-4) to the
Convention (para. 43).
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy