Application No. 10802/84
Heinrich PFEIFER and Margit PLANKL
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 11 October 1990)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 23) ........................................ 1
A. The application
(paras. 2 - 8) ................................. 1
B. The proceedings
(paras. 9 - 18) ................................ 2
C. The present Report
(paras. 19 - 23) ............................... 3
II. ESTABLISHMENT OF THE FACTS
(paras. 24 - 57) ....................................... 4
A. The criminal proceedings against the first
applicant
(paras. 24 - 43) ............................... 4
1. The investigation
(paras. 24 - 31) ........................... 4
2. The trial
(paras. 32 - 39) ........................... 5
3. The appeal proceedings
(paras. 40 - 43) ........................... 6
B. Censorship of correspondence between the
two applicants (paras. 44 - 57) ................ 6
1. The measure taken by the investigating judge
(paras. 44 - 45) ........................... 6
2. The complaints procedure before the Review
Chamber
(paras. 46 - 48) ........................... 7
3. The Attorney General's plea of nullity for
safeguarding the law
(paras. 49 - 51) ........................... 8
4. The Supreme Court's decision on the plea of
nullity
(paras. 52 - 57) ........................... 8
III. OPINION OF THE COMMISSION
(paras. 58 - 114) ...................................... 10
A. Complaints declared admissible (para. 58) ...... 10
B. Points at issue (para. 59) ..................... 10
C. As to the alleged violation of Article 6 para. 1
of the Convention in the first applicant's case
(paras. 60 - 88) ............................... 10
1. "Tribunal established by law"
(paras. 62 - 80) ........................... 10
2. "Impartial tribunal"
(paras. 81 - 87) ........................... 13
Conclusion
(para. 88) ................................. 14
D. As to the alleged violation of Article 8 of the
Convention by the censorship of the applicants'
correspondence
(paras. 89 - 112) .............................. 14
1. Scope of the interference
(Article 8 para. 1)
(paras. 91 - 93) ........................... 14
2. Justification of the interference
(Article 8 para. 2)
(paras. 94 - 111) .......................... 15
a) "In accordance with the law"
(paras. 95 - 100) ...................... 15
b) Legitimate purpose
(paras. 101 - 103) ..................... 16
c) "Necessary in a democratic society"
(paras. 104 - 111) ..................... 17
Conclusion
(para. 112) ................................ 18
E. Recapitulation
(paras. 113 - 114) ............................. 18
APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 19
APPENDIX II : FIRST PARTIAL DECISION ON ADMISSIBILITY
(14 May 1987) ............................... 20
APPENDIX III : SECOND PARTIAL DECISION ON ADMISSIBILITY
(15 December 1988) .......................... 31
APPENDIX IV : FINAL DECISION ON ADMISSIBILITY
(8 May 1989) ................................ 50
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 1945 and 1952
respectively. Both are represented by Mr. Reinhard Peters, a German
citizen residing in Munich, Federal Republic of Germany.
3. The application is directed against Austria. The Austrian
Government are represented by their Agent, Ambassador Dr. Helmut
Türk, Legal Adviser of the Federal Ministry of Foreign Affairs.
4. The case concerns criminal proceedings against the first
applicant and censorship of correspondence between the second and the
first applicant.
5. The first applicant was tried by the Regional Court of
Klagenfurt in 1983. He claims that the Court was neither "impartial"
nor "established by law", as required by Article 6 para. 1 of the
Convention. Two judges had acted as investigating judges in the same
case. They were therefore disqualified under Austrian law. The
applicant's waiver of a remedy was invalid.
6. The first applicant further submits that he should not have been
tried until his challenge of all judges of the Regional Court had been
determined in a case concerning accusations by the applicant against a
third investigating judge who had acted in his case. The judges
trying the present case had declared themselves biased in the parallel
case, the investigating judge accused in that case being their
colleague. The applicant submits that they must therefore have been
biased in the present case, too. He invokes Article 6 para. 1 of the
Convention also in this respect.
7. Both applicants complain of censorship by the investigating
judge of a letter which the second applicant addressed to the first
applicant when both were detained in the remand prison of the Regional
Court of Klagenfurt. The investigating judge made certain passages of
the letter illegible on the ground that they contained "jokes of an
insulting nature against prison officers" and thus defamed officials
on duty. In subsequent proceedings the contents of the deleted
passages were established on the basis of a report by the
investigating judge. The Supreme Court held that the method of
censorship had been unlawful, but that censorship had as such been
justified as the second applicant could rightly be suspected of having
committed the offence of insulting officials on duty. It observed
that in the forwarding procedure for the submission of the letter to
the investigating judge its contents would necessarily become known to
several prison or court officers on duty.
8. The applicants complain that, having regard to its contents,
the censorship of the letter was not necessary in a democratic society
and thus could not be justified under Article 8 of the Convention.
They see a further violation of Article 8 in the forwarding procedure,
as described by the Supreme Court, in that it allowed the mail of
remand prisoners to be read by prison officers.
B. The proceedings
9. The application was introduced on 23 September 1983 and
registered on 31 January 1984.
10. On 13 May 1987 the Commission rejected certain complaints of
the first applicant by a partial decision. As to his remaining
complaints, the Commission decided to give notice of the application
to the respondent Government and to invite them, in accordance with
Rule 42 para. 2 (b) of the Rules of Procedure, to submit observations
in writing, inter alia, on the first applicant's complaint that two
professional judges had taken part in his trial who previously had
acted as investigating judges and on the complaint of both applicants
relating to the censorship of their correspondence.
11. The Government submitted their observations on 27 July 1987.
The applicants submitted observations in reply on 23 September 1987.
12. On 16 December 1987 the Government submitted further
information concerning the Supreme Court's decision of 20 October 1987
on the Attorney General's plea of nullity for safeguarding the law.
On 3 February 1988 the applicant submitted comments on this decision.
13. On 15 December 1988 the Commission rejected certain further
complaints of both applicants by a partial decision while reserving the
decision concerning the first applicant's complaints relating to the
criminal proceedings against him and his subsequent detention, and the
complaints of both applicants concerning the censorship of a letter.
In this respect the Commission decided to invite the parties, in
accordance with Rule 42 para. 3 (b) of its Rules of Procedure, to
submit further observations orally at a hearing.
14. At the hearing on 8 May 1989 the Government were represented
by their Agent, Ambassador Helmut Türk, assisted by Mr. Wolf Okresek,
Federal Chancellery, and Ms. Irene Gartner, Federal Ministry of
Justice, Advisers. The applicants were represented by Mr. Reinhard
Peters, assisted by Ms. Anne Marie Schwarz, Adviser.
15. At the close of the hearing, the Commission declared the
complaints summarised in paragraphs 5 - 8 above admissible while
rejecting the remaining complaints.
16. The text of the final decision on admissibility was approved
by the Commission on 13 July 1989 and communicated to the parties on
29 August 1989. They were invited to submit supplementary observations
on the merits before 16 October 1989.
17. The Government submitted such observations on 16 October 1989
and the applicants on 7 November 1989.
18. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, also placed itself
at the disposal of the parties with a view to securing a friendly
settlement. Negotiations were conducted on this issue between August 1989
and April 1990. 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
19. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
E. BUSUTTIL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
20. The text of this Report was adopted on 11 October 1990 and
is now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
21. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
22. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decisions on the admissibility of the application are attached as
Appendices II - IV.
23. 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
A. The criminal proceedings against the first applicant
1. The investigation
24. On the basis of a warrant of arrest issued by the Regional
Court (Landesgericht) of Klagenfurt on 12 November 1982, the first
applicant was arrested in Klagenfurt on 20 November 1982. The warrant
was based on the suspicion of his having committed various criminal
offences (aggravated fraud, professional burglary, forgery and
suppression of documents, professional receiving of stolen goods, and
illegal possession of firearms) and it referred to a danger of
absconding, of collusion and of repetition under Section 175 para. 1,
sub-paras. 2-4 of the Code of Criminal Procedure (Strafprozessordnung).
25. On 21 November 1982 the first applicant was brought before an
investigating judge in accordance with Section 179 para. 1 of the Code
of Criminal Procedure, i.e. the judge on duty (Journalrichter) Dr. A.
He informed the first applicant of the reasons for the arrest. The
first applicant denied having committed the above criminal offences,
except the offence of illegal possession of firearms. The merits of
the case were not discussed.
26. Also on 21 November 1982 the investigating judge competent for
the first applicant's case, Dr. K., ordered the transfer of the first
applicant to the Vienna Regional Court for Criminal Affairs
(Landesgericht für Strafsachen) which had issued a warrant of arrest
against this applicant on 20 November 1982, on the suspicion of his
having participated in an armed robbery in Vienna. The Klagenfurt
proceedings were joined to those of the Regional Court of Vienna.
However, on 20 January 1983 they were severed again and referred back
to the Regional Court of Klagenfurt. The first applicant was detained
in the remand prison of the Vienna Regional Court from 22 November 1982
until 24 February 1983.
27. On 25 February 1983 the investigating judge of the Regional
Court of Klagenfurt who was now competent, Dr. St., opened a judicial
investigation (Voruntersuchung) against the first applicant and
ordered his detention on remand. The warrant of arrest based on
Section 180 para. 1 and para. 2 sub-paras. 1 - 3 (danger of absconding,
collusion and repetition) was notified to the applicant by judge
Dr. St. on the same day.
28. On 23 May 1983 the first applicant challenged judge Dr. St.
on the ground of bias. On 26 May 1983 the President of the Regional
Court of Klagenfurt rejected this challenge as being unsubstantiated.
29. On 10 June 1983 the investigating judge made a request under
Section 193 para. 2 of the Code of Criminal Procedure for the
prolongation of the first applicant's detention on remand beyond the
statutory time-limit of six months. On 16 June 1983 the Graz Court of
Appeal (Oberlandesgericht) acceded to the request, authorising
detention for a maximum period of nine months, having regard to the
volume and complexity of the judicial investigation. On 7 July 1983
the Review Chamber (Ratskammer) of the Regional Court of Klagenfurt
ordered the first applicant's continued detention, on the grounds of
danger of absconding and repetition. The first applicant lodged an
appeal against this decision.
30. On 19 July 1983 the competent public prosecutor submitted an
indictment charging the first applicant with the offences of receiving
stolen goods and illegal possession of firearms. He requested that
the remaining charges be severed for further investigation (two of
those charges - suppression of documents and one case of fraud - were
subsequently not pursued). The first applicant raised an objection
(Einspruch) against the indictment.
31. Pending the decision on this objection, the investigating
judge requested a further prolongation of the first applicant's
detention on remand. The Graz Court of Appeal decided on 18 August 1983
to authorise the applicant's detention on remand for a maximum period
of ten months and to reject his appeal against his continued detention
and his objection against the indictment.
2. The trial
32. The trial opened on 14 September 1983 before the Regional
Court of Klagenfurt, sitting with two professional judges (Drs. K.
and A.) and two lay assessors (Schöffengericht).
33. The presiding judge, Dr. K., had previously, on 31 August and
1 September 1983, raised with the first applicant the fact that the
two professional judges had acted as investigating judges (Dr. K. had
been the competent investigating judge until 31 December 1982, Dr. A.
had been the judge on duty at the applicant's first hearing on
21 November 1982). Dr. K. informed the first applicant that the two
judges were disqualified from participating in the trial by virtue of
Section 68 para. 2 under sanction of nullity as provided for in
Section 281 para. 1 No. 1 of the Code of Criminal Procedure.
34. Following Dr. K.'s suggestion the first applicant declared
that he would not lodge a plea of nullity on this account; he further
observed that he did not consider it necessary to consult his defence
counsel on this question.
35. The trial was held with the participation of the above two
professional judges on 14 September and 7 October 1983.
36. The defence did not object to the composition of the Court.
In particular, it did not invoke Section 68 para. 2 of the Code of
Criminal Procedure on the ground that the judges, Drs. K. and A., had
previously acted as investigating judges.
37. Nor did the defence draw the Court's attention to the fact that
the first applicant had in the meantime requested the institution of
criminal proceedings against the third investigating judge Dr. St.,
accusing him of abuse of public power in connection with the
investigation of his case. In those proceedings the applicant had, on
23 September 1983, challenged all judges of the Regional Court as
being biased. At the trial on 7 October 1983 the defence did not
mention that the challenge, which also concerned Drs. K. and A., had
not yet been determined.
38. A decision on that challenge was only taken on 10 November
1983 by the Graz Court of Appeal. As all judges of the Regional Court
of Klagenfurt, being colleagues of Dr. St., had declared themselves to
be biased in the proceedings against the latter judge, the challenge
was allowed and the case referred to the Regional Court of Leoben. The
Review Chamber of that Court later refused the opening of criminal
proceedings against Dr. St.
39. On 7 October 1983, the Regional Court of Klagenfurt convicted
the first applicant of qualified receiving of stolen goods under
Section 164 para. 3 of the Penal Code (Strafgesetzbuch) and of illegal
possession of firearms under Section 36 of the Firearms Act
(Waffengesetz). It sentenced him to three years' imprisonment.
3. The appeal proceedings
40. The first applicant lodged a plea of nullity (Nichtigkeits-
beschwerde) against his conviction and appealed from the sentence
(Berufung). These remedies were rejected by the Supreme Court
(Oberster Gerichtshof) on 29 February 1984.
41. The Supreme Court, dismissing the plea of nullity, held
that the judgment was not attended with nullity because of the
participation of biased judges. Insofar as the first applicant had
referred to his undetermined challenge of all judges of the Regional
Court prior to the trial, the Supreme Court observed that he had not
requested a decision at the trial in which case the Regional Court
would have been obliged to take an interim decision. The fact that
the challenge of the whole Regional Court of Klagenfurt was
subsequently allowed in the criminal proceedings against the third
investigating judge, Dr. St., did not justify the conclusion that the
judges of the Regional Court were also biased in the criminal
proceedings against the applicant.
42. In the Supreme Court's view the first applicant could not
invoke the fact that the two professional judges, Drs. K. and A.,
should, in principle, have been excluded from the trial by virtue of
Section 68 para. 2 of the Code of Criminal Procedure because they had
been involved in the investigation, since he had prior to the trial
expressly renounced challenging these judges.
43. The Supreme Court further rejected the first applicant's
complaints concerning alleged inconsistencies of the judgment. It
also confirmed the first applicant's sentence, rejecting his appeal
(Berufung).
B. Censorship of correspondence between the two applicants
1. The measure taken by the investigating judge
44. During their detention on remand the applicants corresponded
with each other. At some time in the early summer of 1983 the
investigating judge censored a letter addressed by the second
applicant to the first applicant by crossing out and making illegible
certain passages.
45. These passages were not reconstructed in the subsequent
proceedings, but according to the applicants they contained critical
remarks on prison officers in the following terms:
(German)
"Ich frage mich, ob in diesem Affenhaus noch jemand
normal ist .... Im Leben sind es Würstchen, hier sind
sie, glauben sie, Götter. Einige von den Beamten sind
ja Gäste wie wir. Dauernd wird hier spioniert bei den
Frauen, züchtige Spanner, dieses Affenpack! Ich hasse
es so!"
(Translation)
"I ask myself whether there is anybody left in this
ape house who is still normal ... In normal life they
are miserable creatures, here they think they are gods.
Some of the officers are guests like us. They are for
ever spying on the women, these apes are proper peeping
toms! I hate it!"
2. The complaints procedure before the Review Chamber
46. The second applicant complained to the Review Chamber of the
Regional Court. She claimed that the form of censorship was unlawful as
Section 187 para. 2 of the Code of Criminal Procedure provided only
for the stopping of letters but not for making them illegible. She
further submitted that censorship was permissible only in respect of
letters likely to endanger the aim of the detention, or letters
suspected of involving a criminal offence except an offence liable to
prosecution only at the request of the injured person. In the
applicant's view the relevant passages in the letter neither
endangered the aim of her detention nor did they constitute a public
prosecution offence.
47. The Review Chamber, after having heard the prosecution and
having obtained a report of the investigating judge, rejected the
second applicant's complaint on 26 July 1983. The second applicant
did not participate in these proceedings which were conducted in
camera.
48. In its decision, the Review Chamber observed that the
crossing out of certain passages in the letter was a less severe
measure than its stopping to which the investigating judge was
entitled by virtue of Section 187 para. 2 of the Code of Criminal
Procedure. This measure was therefore implied in the investigating
judge's powers and did not infringe the second applicant's rights.
The censorship had been justified as the passages in question, being
described by the investigating judge in her report on the incident
as "jokes of an insulting nature against prison officers", had
constituted the offence of defamation (üble Nachrede) of officials on
duty (Section 111 para. 1 in conjunction with Section 117 para. 2 of
the Penal Code), an offence which could be taken as the basis for a
measure under Section 187 para. 2 of the Code of Criminal Procedure.
3. The Attorney General's plea of nullity for
safeguarding the law
49. Following the communication of the present application to the
respondent Government, the Attorney General's office (Generalprokuratur)
lodged a plea of nullity for safeguarding the law (Nichtigkeits-
beschwerde zur Wahrung des Gesetzes) in respect of the above decision
of the Review Chamber of the Regional Court of Klagenfurt.
50. It was claimed that the decision was unlawful because the
applicant's remarks could not possibly have constituted an offence
against the honour of prison officers "on duty" ("während der Ausübung
seines Amtes oder Dienstes"), i.e. a public prosecution offence to be
prosecuted with the consent of the officials concerned (Section 117
para. 2 of the Code of Criminal Procedure), because such an offence
could only be committed "from person to person" and not in a letter.
If there was an offence against the honour of prison officers, it was
liable to prosecution only at the request of the injured persons and
thus did not justify a measure of censorship under Section 187 para. 2
of the Code of Criminal Procedure.
51. Unlawfulness of the measure was further claimed on the ground
that the latter provision merely authorised the stopping of a letter,
but not the crossing out of certain passages therein.
4. The Supreme Court's decision on the plea of nullity
52. On 20 October 1987 the Supreme Court, after having held a
public hearing in the presence of a representative of the Attorney
General's office, but in the absence of the second applicant, rejected
the argument that there was no public prosecution offence, but found a
violation of the law as to the form of censorship.
53. Assuming that the crossed-out passages actually contained
"jokes of an insulting nature against prison officers" as stated by
the investigating judge, the Supreme Court found it justified to
suspect the second applicant of an offence, namely the offence of
insult (Beleidigung) under Section 115 of the Penal Code (rather than
defamation under Section 111). If committed against an official on
duty this offence was to be prosecuted ex officio (with the consent of
the official in question) under Section 117 para. 2 of the Penal Code.
54. In the present case the possible offence would have been
committed against prison officers "on duty" because the offence would
have been completed by handing the letter to a prison officer for the
purpose of submitting it to the investigating judge and this
forwarding procedure would necessarily have created the possibility
of the insulting contents of the letter becoming known to several
prison or court officers on duty. This implied that Section 117
para. 2 of the Penal Code was applicable and the measure therefore was
covered by Section 187 para. 2 of the Code of Criminal Procedure.
55. However, this provision only authorised the investigating
judge to stop a letter, but not to cross out passages. In this latter
respect the investigating judge and the Review Chamber had acted
against the ratio legis.
56. The investigating judge had not taken a "less severe measure"
implied in her powers under Section 187 para. 2, but a different
measure which interfered with the interests of the prosecution
authorities and of the officials concerned to have criminal proceedings
instituted against the second applicant on account of her remarks in
the letter.
57. The Supreme Court concluded that it was therefore sufficient
to state that the law had been violated. The second applicant was not
aggrieved and therefore could not complain of the rejection of her
appeal by the Review Chamber.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
58. The following complaints were declared admissible:
a) the complaint of the first applicant that the Regional
Court which tried his case was not an "impartial tribunal
established by law";
b) the complaint of both applicants that the censorship of the
letter addressed by the second applicant to the first
applicant and its reading by prison officers were unjustified.
B. Points at issue
59. The Commission must therefore examine:
a) whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention in that at the first applicant's trial
the Regional Court was not "established by law" and not "impartial";
b) whether there has been a violation of Article 8 (Art. 8)
of the Convention in that there was an unjustified interference with
the applicants' right to respect for their correspondence by the
censorship of the second applicant's letter to the first applicant
and the absence of safeguards against its being read by other persons
than the investigating judge.
C. As to the alleged violation of Article 6 para. 1 (Art. 6-1)
of the Convention in the first applicant's case
60. The first sentence of Article 6 para. 1 (Art. 6-1) reads as
follows:
" In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law."
61. The first applicant claims that at his trial before the Regional
Court of Klagenfurt this provision was violated on essentially three
grounds: the tribunal was not "established by law" because the two
professional judges, having acted as investigating judges, were
disqualified by virtue of Section 68 para. 2 of the Austrian Code of
Criminal Procedure; for the same reason the tribunal furthermore was
not "impartial"; in addition, it was not "impartial" because the
professional judges had been challenged in a criminal case brought by
the first applicant against the third investigating judge and had
declared themselves biased in that case, which, in the first applicant's
submission, meant that they were also biased in his own case.
1. "Tribunal established by law"
62. The Commission must first deal with the applicant's claim that
at his trial the Regional Court was not "established by law".
63. The words "established by law" primarily refer back to the
national law on the organisation of the courts of justice. In principle,
a court cannot be regarded as being "established by law" if in a
particular case the provisions as to its lawful composition have not
been complied with.
64. Section 68 para. 2 of the Austrian Code of Criminal Procedure
stipulates inter alia that a judge who has acted as an investigating
judge in the same case shall be disqualified from participating in the
trial and judgment.
65. It is not disputed that, by virtue of this provision, two
judges, including the presiding judge, should not have participated in
the first applicant's trial because they had previously acted as
investigating judges in this case. Under Austrian law, the scope of
their actual involvement in the preliminary investigation was
irrelevant. The simple fact of their having been entrusted with the
function of investigating judges at some stage of the proceedings
disqualified them. This, in principle, entailed the sanction of
nullity of the proceedings under Section 281 para. 1 (1) of the Code
of Criminal Procedure.
66. Under this provision a plea of nullity may be filed, inter
alia, if a disqualified judge has participated in the trial; however,
in cases where the disqualification has become known to the party
before or at the trial, this circumstance must have been raised
immediately at the trial.
67. The first applicant had been informed before the trial by the
presiding judge that both the presiding judge and another judge were
disqualified. On the suggestion of the presiding judge he waived his
right to lodge a plea of nullity on this account. He did not raise
this issue of disqualification at the trial nor subsequently in his
plea of nullity. The Supreme Court noted that it could not deal with
the matter in view of the above waiver.
68. The Government argue that in these circumstances the wrongful
composition of the Regional Court must be regarded as remedied under
Austrian law. They claim that the Regional Court was "established by
law", the applicant having accepted its composition.
69. The first applicant claims that he can still invoke the
unlawful composition of the Court as the waiver of his right to lodge
a plea of nullity was obtained in an unlawful and unfair procedure.
70. The first applicant regards the procedure followed by the
presiding judge of the Regional Court as unlawful because he should
primarily have recognised his disqualification of his own motion in
the procedure under Section 70 of the Code of Criminal Procedure,
informing the president of the Regional Court thereof, and refraining
from any further acts in the case by virtue of Section 71. A further
unlawfulness is seen in the fact that the presiding judge discussed
the matter with the first applicant in person, in the absence of the
latter's defence counsel.
71. The first applicant also considers the procedure followed by
the presiding judge as unfair. The suggestion that a plea of nullity
be waived on the ground of disqualification was allegedly made to the
applicant in a situation where he could hardly contradict the
presiding judge. Moreover, undue pressure was allegedly exercised on
the applicant by his being told that the trial would have to be
postponed (and his detention on remand prolonged) if he did not accept
the Court's composition. Finally, he claims that he was misled about
the available remedies by not being told that it would still have been
open to him to raise the disqualification of the judges at the trial
and, having done so, subsequently in a plea of nullity.
72. In its final decision on admissibility (Appendix IV, at p. 58),
the Commission recalled that a person may validly waive invoking the
guarantees under Article 6 of the Convention, but reserved its
position concerning the validity of the waiver in the present case.
73. It now notes that the Supreme Court had no doubts concerning
the validity of this waiver under Austrian law. However, it dealt
with this issue only by way of an obiter dictum and did not examine in
detail the procedure followed by the Regional Court's presiding judge
on 31 August and 1 September 1983 (cf. paras. 33 - 34 above). It also
appears that before the Supreme Court the applicant was not heard on
this question. It therefore remains open to doubt whether the Supreme
Court's decision can be seen as a full confirmation of the lawfulness
under Austrian law of the presiding judge's procedure.
74. In any event the Commission considers that insofar as the
waiver also affected the first applicant's right under Article 6
para. 1 (Art. 6-1) of the Convention to a "tribunal established by
law", it cannot be judged exclusively by reference to the legal
situation in Austria. In order to be effective for Convention
purposes, a waiver of procedural rights requires minimum guarantees
commensurate to its importance.
75. In the present case, the presiding judge, when discussing his
own and another judge's disqualification with the first applicant,
disregarded important procedural principles which are also reflected
in Austrian law.
76. First, he acted himself although he was, according to his own
admission, in principle disqualified from doing so. Under Section 71
of the Code of Criminal Procedure he should have refrained from any
acts except acts of such urgency that they could not be postponed and
carried out by a different judge. It has not been shown that in the
present case there existed such an urgency.
77. Secondly, the presiding judge failed to inform the president
of the Court immediately of his disqualification as required under
Section 70 of the above Code. Instead of taking measures aimed at
giving effect to his and his colleague's disqualification, he took the
opposite course with a view to ensuring their participation in the
trial despite their disqualification.
78. Thirdly, in order to achieve this aim, the presiding judge
incited the applicant to waive his right to a remedy which would
otherwise have been available to him. It may be left open whether in
this context undue pressure was exerted on the first applicant or
whether he was led into error about the legal situation. It suffices
to note that the applicant was put into a difficult psychological
situation when he was called to appear before the presiding judge
without the assistance of his legal defence counsel, and required to
give a reply immediately. In order to preserve his rights, he would
have had to tell the presiding judge that he did not agree with him
that the disqualification was merely a formal matter and did not
justify a fear of substantive bias.
79. It may well be that a waiver declared by the applicant in the
presence of his lawyer before a judge who was not himself disqualified
would have to be regarded as binding also for the purposes of the
Convention law. The Commission considers, however, that having regard
to the particular circumstances in which the applicant declared his
waiver, it cannot be held to be effective for the purposes of the
Convention.
80. Since the composition of the Regional Court at the trial was
uncontestedly unlawful, and as the applicant's waiver of his right to
contest this unlawfulness was ineffective for the above-mentioned
reasons, it follows that he did not enjoy the guarantee of a "tribunal
established by law" provided for by Article 6 para. 1 (Art. 6-1) of the
Convention.
2. "Impartial tribunal"
81. The first applicant further claims that because of the
participation of the disqualified judges the Regional Court was not
"impartial".
82. The Government contest this, claiming that the impartiality of
the judges in question could not be impaired having regard to the very
limited functions which they exercised as investigating judges in the
first applicant's case. They could not have given the applicant the
impression that they had "a pre-formed opinion which [was] liable to
weigh heavily in the balance at the moment of the decision" (Eur.
Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86,
p. 16 para. 29).
83. The Commission recalls that, according to the De Cubber judgment,
in determining impartiality "a distinction should be drawn 'between a
subjective approach, that is endeavouring to ascertain the personal
conviction of a given judge in a given case, and an objective
approach, that is determining whether he offered guarantees sufficient
to exclude any legitimate doubt in this respect'" (ibid. p. 13, para.
24, with a reference to the Piersack judgment of 1 October 1982,
Series A no. 53, p. 14 para. 30). While the personal impartiality of
a judge is to be presumed until there is proof to the contrary (ibid.
p. 14, para. 25), the objective approach can be reflected, inter alia,
in the applicable provisions of the national law disqualifying a judge
from exercising certain functions: they manifest the law-makers'
"concern to make ... courts free of any legitimate suspicion of
partiality" (ibid. p. 16 para. 29).
84. It appears from the Court's De Cubber judgment that where a
judge who has previously acted as investigating judge later
participates in the judgment legitimate doubts may arise as to his
impartiality. The same view is reflected in Section 68 para. 2 of the
Austrian Code of Criminal Procedure which disqualifies a judge from
acting as a trial judge in such circumstances.
85. The Commission is therefore of the opinion that in the
present case the Regional Court, as a result of the participation of
the two disqualified judges, must be considered to have lacked
impartiality within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. It is irrelevant in this context whether, subjectively,
the two judges concerned actually had pre-formed opinions concerning
the case as the first applicant claims (cf. mutatis mutandis,
No. 11662/85, Oberschlick v. Austria, Comm. Report 14.12.89,
paras. 100 - 103).
86. The applicant has further claimed that the Regional Court was
not "impartial" because the trial took place although he had
previously challenged the judges for bias in the criminal case which
he had brought against the investigating judge St. and that challenge
was still to be determined. The judges had declared themselves biased
in the case against their colleague, and the applicant submits that,
for the same reason, they must also have been biased in his own case.
87. Having regard to its above finding that the Court was not
impartial for a different reason (cf. para. 85), the Commission
considers that it is not necessary to examine this additional issue of
bias.
Conclusion
88. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in
that at the first applicant's trial the Regional Court was not
"established by law" and not "impartial".
D. As to the alleged violation of Article 8 (Art. 8) of the
Convention by the censorship of the applicants' correspondence
89. Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
90. The applicants claim that this provision has been violated by
the censorship of a letter which the second applicant addressed to the
first applicant in the summer of 1983 when both were detained on
remand in the prison of the Regional Court of Klagenfurt.
1. Scope of the interference (Article 8 para. 1) (Art. 8-1)
91. It is not contested that Article 8 (Art. 8) of the Convention is
applicable and that there has been an interference with both
applicants' right to respect for their correspondence, as guaranteed
by paragraph 1 (Art. 8-1) of this Article. In fact, the letter in
question was subjected to a measure of censorship by the investigating
judge which was subsequently confirmed by the Review Chamber and the
Supreme Court. In addition, there was an interference with the
confidentiality of the letter in that it was apparently read not only
by the investigating judge entrusted with the function of carrying out
the censorship of the applicants' correspondence, but also by other
court or prison officials on duty. At least this was assumed in the
Supreme Court's decision of 20 October 1987.
92. Insofar as the applicants had also originally complained of
the form of the censorship, claiming that the deletion of passages was
not in accordance with the law, they obtained redress by the said Supreme
Court decision. It established that the deletion of passages was
unlawful and that the letter should instead have been retained by the
investigating judge. As the Commission observed in the final decision
on admissibility (Appendix IV, at p. 61) the applicants can no longer
claim to be victims of a violation of their Convention rights as
regards the particular form of censorship exercised in their case.
93. The issues which remain before the Commission are therefore
the question whether the censorship of the letter was in substance
justified, and the further question whether the reading of the letter
by prison officials was justified. These issues must be determined
under Article 8 para. 2 (Art. 8-2) of the Convention.
2. Justification of the interference (Article 8 para. 2)
(Art. 8-2)
94. In order to be justified under Article 8 para. 2 (Art. 8-2)
of the Convention, any interference with the exercise of the rights
guaranteed by paragraph 1 of this Article must
- be "in accordance with the law";
- pursue one or more of the legitimate purposes
enumerated in Article 8 para. 2 (Art. 8-2) ; and
- be "necessary in a democratic society" in order
to achieve the purpose(s) in question.
a) "In accordance with the law"
95. The measure of censorship complained of was based on
Section 187 para. 2 of the Austrian Code of Criminal Procedure which
stipulates inter alia that letters of remand prisoners shall be
withheld if they are likely to prejudice the purpose of detention, or
if they give rise to the suspicion that through them an offence is
being committed which is not an offence to be investigated solely at
the request of the injured party.
96. Austrian criminal law provides for three types of offences:
private prosecution offences (Privatanklagedelikte) which clearly come
within the exception stipulated in Section 187 para. 2 and in respect
of which censorship is therefore inadmissible; public prosecution
offences (Offizialdelikte) to which the exception in Section 187 para. 2
clearly does not apply and which therefore may give rise to a measure of
censorship; and offences liable to public prosecution with the
consent of the injured party (Ermächtigungsdelikte) in respect of
which it was disputed in the domestic proceedings whether or not they
come within the scope of the exception. The latter question was
decided by the Supreme Court in the sense that the exception did not
apply. Having regard to this interpretation of the law by the highest
Austrian jurisdiction, the Commission accepts that it is "in
accordance with the law" to impose censorship in such cases.
97. The question nevertheless remains whether or not the Austrian
authorities rightly assumed the existence of an offence liable to
public prosecution with the consent of the injured party. Offences
against the reputation of a person are generally private prosecution
offences (Section 117 para. 1 of the Penal Code) and liable to public
prosecution with the consent of the injured party only if committed
against officials on duty (Section 117 para. 2 of the Penal Code). In
the present case the Supreme Court assumed that the offence of insult
had been committed against officials on duty (Section 115 in
conjunction with Section 117 para. 2 of the Penal Code) because the
contents of the second applicant's letter must have become known to
several prison or court officers during the procedure in which the
letter was forwarded to the investigating judge.
98. The applicants contest that it was lawful for the prison or
court officers concerned to read the letter. They refer to the
practice endorsed by the Federal Ministry of Justice since 1982
according to which the censorship of letters of remand prisoners is
the exclusive task of the investigating judge (Section 188 of the Code
of Criminal Procedure) and the reading of such letters by other
persons is inadmissible.
99. There may indeed be doubts concerning the lawfulness of the
application of Section 115 in conjunction with Section 117 para. 2 of
the Penal Code in the present case. The reading of the second
applicant's letter by prison and court officers, as assumed in the
Supreme Court's decision, may have been an unlawful measure in itself
and may also have affected the lawfulness of the censorship of the
letter, because this would only have been possible if several officers
had read the letter.
100. Ultimately, the Commission may leave this point undecided
because the possibility for the prison or court officers other than
the investigating judge to read the letter, and its subsequent
censorship by the investigating judge, were unjustified for the
reasons stated below.
b) Legitimate purpose
101. The Government claim that the censorship of the second
applicant's letter pursued legitimate purposes recognised in Article 8
para. 2 (Art. 8-2) of the Convention, namely "the prevention of
disorder or crime", and "the protection of the reputation and rights
of others", i.e. of the prison officers concerned.
102. The Commission notes that the aim of the censorship was the
prevention of a criminal offence against the reputation of prison
officers. It therefore accepts that it pursued the purposes of "the
prevention of crime" and "the protection of the reputation and the
rights of others". The "prevention of disorder" in the prison could
also be relevant but, having regard to the structure of Section 187
para. 2 of the Code of Criminal Procedure, this was apparently not the
specific purpose invoked by the competent domestic authorities.
103. The Commission further notes that the Government did not
explain the purpose of authorising other persons than the
investigating judge to read the second applicant's letter. In this
respect it finds none of the purposes enumerated in Article 8 para. 2
(Art. 8-2) applicable. Insofar as prison officers were entrusted with
the function of controlling the mail as to the enclosure of
unauthorised objects, for the "prevention of disorder" in the prison,
this could be effected without reading the letter. Reading therefore
did not pursue a legitimate purpose.
c) "Necessary in a democratic society"
104. The Government claim that the censorship of the second
applicant's letter was "necessary in a democratic society" in
order to achieve the above aims, in particular that it was not
disproportionate to those aims. They invoke the State's margin of
appreciation in this respect. The applicants contest the Government's
submissions.
105. The Commission recalls that in the domestic proceedings the
contents of the letter were not reconstructed. The Supreme Court's
legal qualification of the offence allegedly committed by the second
applicant was merely based on the information provided by the
investigating judge that the letter had contained "jokes of an
insulting nature against prison officers". The Supreme Court
furthermore merely assumed, without taking any evidence in this
respect, that the contents of the letter had come to the knowledge of
several prison or court officers on duty. The second applicant was
not heard throughout the procedure before the investigating judge, the
Review Chamber and the Supreme Court.
106. The Commission, which must take the Supreme Court's decision
as the starting point of its examination, finds that this decision
rests on a weak basis as regards the relevant facts. This is true
even if one considers that the Supreme Court was not called upon to
establish the existence of the criminal offence in question, but only
to determine whether there could be a reasonable suspicion of such an
offence.
107. Secondly, the offence assumed by the Supreme Court involved an
element of publicity. For the application of Section 115 in
conjunction with Section 117 para. 2 of the Penal Code it was
necessary that the insulting remarks against officials on duty had
been made publicly or before several persons. The second applicant's
letter, however, was not addressed to the public nor intended to be
brought to the notice of other persons than the addressee. It was a
piece of private correspondence meant to be read only by the first
applicant, being a close friend of the second applicant. She also had
to presume that it would be read by the investigating judge entrusted
with censoring her mail, but not by anybody else. In this context the
Commission refers to its above finding (para. 103) that the reading of
the letter by other persons than the investigating judge, even if it
should have been lawful under Austrian law, did not pursue a
legitimate purpose recognised in the Convention. In such
circumstances the Commission cannot find that the censorship of the
letter was necessary on the ground that it justified the suspicion of
an offence which, by its nature, could only be committed in public.
108. Even if one takes into account the text of the letter as
submitted to the Commission (cf. para. 45 above), the censorship does
not appear to have served a "pressing social need" (cf. Eur. Court
H.R., Silver and Others judgment of 25 March 1983, Series A no. 61,
p. 38 para. 97). As the Court recognised (ibid. pp. 38 - 39 para. 99,
in particular sub-para. (c) read in conjunction with para. 64 on p. 26
of the judgment), it cannot be regarded as "necessary in a democratic
society" to stop a private letter containing "material deliberately
calculated to hold the prison authorities up to contempt".
109. In the present case, the gist of the second applicant's
remarks which were found to be objectionable was a complaint about
prison conditions; in particular she complained that female inmates of
the prison were observed in their cells by male prison staff in an
indecent manner. It is true that the second applicant used some
strong expressions ("Affenpack", "Spanner") in this context, but the
Commission recalls that "the use of strong wording may itself be a
means of disapproval of a particular behaviour and should be
restricted only where the terms used are incommensurate to the
legitimate object of the intended criticism" (cf. No. 9815/82, Lingens
v. Austria, Comm. Report 11.10.84, para. 81). The Commission
considers that this principle, formulated in relation to a restriction
of a publication (Article 10 of the Convention) (Art. 10), is all the
more valid where the restriction of a private letter under Article 8
(Art. 8) of the Convention is concerned. The use of the above words
can be explained by an emotional outburst of the second applicant
concerning a situation which she regarded as grave, and they were
not wholly incommensurate to the criticism intended by her.
110. In sum the Commission finds that the censorship of the second
applicant's letter was disproportionate to its aim and therefore not
"necessary in a democratic society".
111. The Commission is not called upon to examine whether the
reading of this letter by persons other than the investigating judge
was "necessary in a democratic society" as in any event this measure
did not pursue a legitimate purpose recognised in the Convention (cf.
para. 103 above).
Conclusion
112. The Commission concludes, by ten votes to one, that there
has been a violation of Article 8 (Art. 8) of the Convention in that
there was an unjustified interference with the applicants' right to
respect for their correspondence by the censorship of the second
applicant's letter to the first applicant and the absence of
safeguards against its being read by other persons than the
investigating judge.
E. Recapitulation
113. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in
that at the first applicant's trial the Regional Court was not
"established by law" and not "impartial" (para. 88).
114. The Commission concludes, by ten votes to one, that there
has been a violation of Article 8 (Art. 8) of the Convention in that
there was an unjustified interference with the applicants' right to
respect for their correspondence by the censorship of the second
applicant's letter to the first applicant and the absence of
safeguards against its being read by other persons than the
investigating judge (para. 112).
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
23 September 1983 Introduction of the application
31 January 1984 Registration of the application
Examination of Admissibility
13 May 1987 Commission's decision to reject
certain complaints and invite the
Government to submit observations
on the remaining complaints
27 July 1987 Government's observations
23 September 1987 Applicants' observations in reply
16 December 1987 Further information submitted by
the Government
3 February 1988 Applicants' comments
15 December 1988 Commission's decision to reject
certain further complaints and to
hold a hearing
8 May 1989 Oral hearing, Commission's deliberations
and decision to declare the remainder
of the application in part admissible
and in part inadmissible
13 July 1989 Commission approves text of decision
on admissibility
Examination of the merits
29 August 1989 Decision on admissibility transmitted
to the parties
16 October 1989 Government's observations on the merits
7 November 1989 Applicants' observations on the merits
10 February 1990 ) Commission's consideration of the
12 May 1990 ) state of proceedings
2 October 1990 Commission's deliberations on the
merits and final votes.
11 October 1990 Adoption of the Report
Full & Egal Universal Law Academy