AS TO THE ADMISSIBILITY OF
Application No. 18892/91
by Wilhelm PUTZ
against Austria
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 23 September 1991
by Wilhelm PUTZ against Austria and registered on 3 October 1991 under
file No. 18892/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
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 1936, is an Austrian national and resident
in Bad Goisern. He is a civil engineer and businessman by profession.
His previous application No. 15095/89 relating to bankruptcy and
criminal proceedings was declared inadmissible on 9 October 1991.
A. Particular circumstances of the case
a. Background
In 1985 bankruptcy proceedings were opened before the Wels
Regional Court (Kreisgericht) concerning the assets of several private
companies managed by the applicant, and his private assets.
Moreover, criminal proceedings were instituted before the Wels
Regional Court against the applicant and others on the suspicion of
fraud and bankruptcy offences. On 21 November 1991 the Wels Regional
Court convicted the applicant of ordinary bankruptcy (fahrlässige
Krida), of fraudulent conversion, of defamation, of having defrauded
social security contributions and of tax evasion. He was sentenced to
eighteen months' imprisonment on probation, and, as regards the tax
offences, a fine amounting to AS 59 million was imposed and a sentence
of six months' imprisonment pronounced. The period of his detention on
remand of almost six months was to be counted towards these sentences.
On 27 May 1993 the Austrian Supreme Court (Oberster Gerichtshof), upon
the applicant's plea of nullity (Nichtigkeitsbeschwerde), quashed the
Wels Regional Court's judgment regarding his conviction of ordinary
bankruptcy, of having defrauded social security contributions and of
tax evasion. To this extent, the Supreme Court referred the case to the
Innsbruck Regional Court. The remainder of the applicant's plea of
nullity was dismissed. The proceedings have not yet terminated.
Furthermore, the applicant was involved in custody proceedings
concerning his children which were pending before the Bad Ischl
District Court (Bezirksgericht).
In the course of these proceedings, various penalties (Ordnungs-
strafen) were imposed upon the applicant, or his imprisonment was
ordered, for "offences against the order in court".
b. The criminal proceedings against the applicant
(1) On 11 February 1986 the Wels Regional Court imposed a fine of
AS 5,000 upon the applicant for an "offence against the order in court"
under S. 85 para. 1 and S. 97 of the Court Organisation Act (Gerichts-
organisationsgesetz), in view of insulting remarks towards the Court
in his submissions of 4 February 1986. On 6 March 1986 the Wels
Regional Court imposed a further fine of AS 15,000 in view of insulting
remarks towards the Investigating Judge in his submissions of 3 March
1986.
On 1 July 1986 the Judges' Chamber (Ratskammer) at the Wels
Regional Court dismissed the applicant's appeal against the decision
of 11 February 1986. Upon his appeal against the decision of 6 March
1986, the fine was reduced to AS 10,000.
On 1 October 1986 the Linz Court of Appeal (Oberlandesgericht)
rejected the applicant's further appeal.
On 30 March 1991 the Wels Regional Court sent the applicant
payment orders in respect of these fines.
On 14 March 1991 the Wels Regional Court ordered the applicant's
imprisonment for terms of three and five days, respectively, in default
of payment of the above fines. The applicant's appeal was dismissed by
the Linz Court of Appeal on 14 November 1991.
(2) On 24 January 1991, in the course of the trial against him, the
Wels Regional Court imposed a fine of AS 3,000 upon the applicant under
SS. 85 and 97 of the Court Organisation Act. The Court found that the
insulting remarks in his written submissions of 2 January 1991 amounted
to an "offence against the order in court". His appeal was declared
inadmissible on 3 May 1991.
(3) On 2 April 1991 the Wels Regional Court, referring to S. 235 of
the Code of Criminal Procedure (Strafprozeßordnung), imposed a further
fine of AS 5,000 upon the applicant. The Court noted that, in
accordance with S. 237 para. 1 of the Code of Criminal Procedure, there
was no appeal against this decision.
In its written decision, the Regional Court found that, in the
course of the criminal proceedings against him, the applicant, having
regard to his behaviour and constant reproaches against the Presiding
Judge in particular, had already been repeatedly warned about
disciplinary measures under S. 235 of the Code of Criminal Procedure.
At the trial on 2 April 1991, the applicant had partly repeated these
reproaches, i.e. misconduct of the committal proceedings
(Zwischenverfahren) by the Presiding Judge and alleged bias in the
performance of his functions in the proceedings, even though the Linz
Court of Appeal, in various decisions, had tried to explain to him that
his reproaches were unfounded. The applicant had also reproached the
Presiding Judge with the violation of an oath, the continued violation
of the law, and the exercise of influence over other officials to the
effect that the applicant would be deprived of all his defence rights
by means of deception, untruth and lies. The last mentioned statement
related to an alleged withholding of the records of the trial. Having
regard to the statements of the Presiding Judge in this respect, the
Regional Court found that the applicant's reproaches were totally
untenable and incorrect. The applicant, therefore, had to be
disciplined in an appropriate manner.
On 2 April 1991 a payment order concerning the fine of the same
date was issued against the applicant. On 16 April 1991 the applicant
received the written version of the decision of 2 April 1991.
(4) At the trial on 8 April 1991, the Wels Regional Court imposed a
further fine of AS 7,500 upon the applicant. The Court referred to its
earlier decision of 2 April 1991. It noted that in the course of the
trial the applicant had again brought obviously unfounded reproaches
against the Presiding Judge. The applicant had stated in particular
that the Presiding Judge had violated an oath, had deliberately
violated the law and conducted an unfair trial in order, inter alia,
to further his career, and that he had already arranged for the
judgment before the conclusion of the trial.
On 17 April 1991 a payment order concerning the fine of 8 April
was issued against the applicant. He received the written version of
the above decision on 20 April 1991.
(5) On 24 June 1991, in the course of the trial, the Wels Regional
Court dismissed the applicant's motion to challenge the Presiding Judge
for bias. The Regional Court found that the applicant had already been
repeatedly informed that divergent opinions about the conduct of the
proceedings cannot justify doubts as to the impartiality of the
Presiding Judge. The Regional Court refused to consider in detail the
applicant's defamatory allegations.
However, the Regional Court, having regard to the applicant's
remarks about "methods of the Nazi regime and the Eastern bloc" ("Nazi-
und Ostblockmethoden") imposed a fine of AS 10,000 upon him. The Court
warned the applicant about further consequences, especially those
provided under S. 235, last sentence, of the Code of Criminal
Procedure, should he continue in this manner. The applicant's request
for a written version of this decision was refused; he was referred to
the verbatim record of the trial. On 17 July 1991 a payment order
concerning the fine imposed on 24 June 1991 was issued.
On 25 February 1992 the Supreme Court (Oberste Gerichtshof), upon
a plea of nullity for the preservation of the law (Nichtigkeits-
beschwerde zur Wahrung des Gesetzes) lodged by the Attorney General
(Generalprokurator), quashed the Regional Court's decision of 24 June
1991. The Supreme Court found that the decision contravened S. 235 of
the Code of Criminal Procedure which did not apply to insulting remarks
in written submissions. The relevant provisions of S. 85 para. 1 and
S. 97 of the Court Organisation Act had not been applied.
(6) On 17 July 1991 the Linz Court of Appeal, referring to S. 85
para. 1 and S. 97 of the Court Organisation Act, in conjunction with
S. 220 para. 1 of the Code of Civil Procedure (Zivilprozeßordnung),
imposed a fine of AS 10,000 upon the applicant. It noted that there was
no appeal against this decision.
The Linz Court of Appeal found that the applicant, in submissions
dated 20 June 1991 to the President of the Court of Appeal and to one
of its judges relating to the criminal proceedings against him, had
made insulting remarks and thereby undermined the authority of the
judiciary. He had in particular stated that the Presiding Judge at the
Wels Regional Court prevented the finding of the truth, this being the
typical method of proceeding under the Nazi regime and in the Eastern
bloc. The Court of Appeal considered that the applicant had exceeded
the limits of objectivity and decency in comparing the judiciary in the
proceedings concerned with the typical methods of the Nazi and Eastern
bloc regimes, and qualifying them as criminal, like the judiciary under
Hitler and Stalin. Anyone could complain about misuse of official
powers in a lawful manner.
(7) On 17 September 1991 the Wels Regional Court, referring to
SS. 235 and 237 para. 1 of the Code of Criminal Procedure, imposed a
penalty of one day's imprisonment upon the applicant. The Regional
Court had regard to statements made by the applicant in a letter to the
Austrian President complaining, inter alia, that the trial was unfair
and had been conducted by biased judges, thus preventing the
establishment of the truth. The Regional Court found that the
imposition of a penalty of imprisonment was justified on the ground
that the numerous fines had had no impact upon him. The applicant
served the sentence on 17 and 18 September 1991.
On 4 August 1992 the Supreme Court, upon a plea of nullity for
the preservation of the law lodged by the Attorney General, quashed the
Regional Court's decision of 17 September 1991. The Supreme Court found
that the decision contravened S. 235 of the Code of Criminal Procedure
which did not apply to insulting remarks in written submissions. The
mere reference at the trial to such written submissions upon
questioning by the Presiding Judge was not sufficient. The relevant
provisions of S. 85 para. 1 and S. 97 of the Court Organisation Act had
not been applied.
On 1 February 1993 the applicant filed compensation claims as to
his imprisonment with the Attorney General's Department (Finanz-
prokuratur).
c. The bankruptcy proceedings
(1) On 21 May 1987 the Linz Court of Appeal imposed a fine of
AS 10,000 upon the applicant for an "offence against the order in
court". On 10 March 1988 the Wels Regional Court ordered imprisonment
of six days and fifteen hours in default of payment of this fine, which
the applicant served from 17 until 24 November 1991.
(2) On 17 July 1987, 4 March and 11 March 1988, in the course of the
above-mentioned bankruptcy proceedings, the Wels Regional Court imposed
three successive fines of AS 15,000 upon the applicant. The decisions
related to submissions by the applicant charging the competent judge
with having acted as accessory to various criminal offences allegedly
committed by the official receiver in the bankruptcy proceedings, and
with allegedly telling lies and committing fraud.
On 29 November 1989 the Court ordered thirty days' imprisonment
in default of payment of these fines. The applicant's appeals were to
no avail. On account of this decision, the applicant was detained from
18 September until 18 October 1991.
(3) On 11 November 1987 the Wels Regional Court imposed a further
fine of AS 15,000 upon the applicant. On 28 April 1989 the Regional
Court ordered ten days' imprisonment in default of payment of this
fine. The applicant's appeal in this respect was dismissed on 11 August
1989. The applicant was detained from 7 until 17 November 1991.
(4) On 7 August 1989 the Linz Court of Appeal, in appeal proceedings,
imposed a fine of AS 15,000 upon the applicant. The Court of Appeal had
regard to the applicant's insulting remarks about the President of the
Court of Appeal. It referred to S. 85 para. 1 of the Court Organisation
Act in conjunction with S. 220 of the Code of Civil Procedure.
On 10 January 1990 the Wels Regional Court ordered a term of ten
days' imprisonment in default of payment of this fine. The applicant's
appeal were dismissed by the Linz Court of Appeal on 17 April 1990. The
applicant was detained from 28 October until 7 November 1991.
(5) On 23 January and 6 July 1990 the President of the Wels Regional
Court, having regard to hierarchical complaints lodged by the applicant
in respect of the judge conducting the bankruptcy proceedings, imposed
successive fines of AS 20,000 for "offences against the order in
court". Following successful proceedings before the Austrian
Administrative Court (Verwaltungsgerichtshof), these decisions were
quashed for procedural reasons on 11 November and 14 October 1991,
respectively.
d. The custody proceedings
On 7 August 1989 the Linz Court of Appeal, in appeal proceedings,
imposed a fine of AS 15,000 upon the applicant. The Court of Appeal had
regard to the applicant's insulting remarks about judges conducting the
custody proceedings. It referred to S. 85 para. 1 of the Court
Organisation Act and S. 220 of the Code of Civil Procedure.
On 10 January 1990 the Wels Regional Court ordered a term of ten
days' imprisonment in default of payment of this fine. The applicant's
appeal were dismissed by the Linz Court of Appeal on 17 April 1990. The
applicant was detained from 18 October until 28 October 1991.
B. Relevant domestic law
SS. 232 to 238 of the Austrian Code of Criminal Procedure concern
the powers of the presiding judge and of the court for maintaining
order in the court at the trial.
S. 235 defines "offences against the order in court" and reads
as follows:
"The presiding judge shall ensure that no one is exposed to
insulting remarks or obviously unfounded and irrelevant
accusations. Where the accused or the private prosecutor, the
private party to the proceedings, a witness or an expert have
taken the liberty of making such remarks, the court, upon the
request of the insulted person or of the public prosecutor or ex
officio, may impose a penalty (Ordnungsstrafe) not exceeding
AS 10,000, or, if indispensable for maintaining the order,
imprisonment for a period not exceeding eight days."
S. 237 para. 1 of the Code of Criminal Procedure provides that
decisions under S. 235 are immediately enforceable, and that there is
no appeal against them.
S. 7 para. 1 of the Code of Criminal Procedure provides that a
fine (Geldstrafe) imposed under the Code may be transformed into a
sentence of imprisonment in default of payment (Ersatzfreiheitsstrafe)
not exceeding a term of eight days, if the fine is partly or fully
irrecoverable and does not call for a reassessment.
According to S. 85 para. 1 of the Court Organisation Act
(Gerichtsorganisationsgesetz), a penalty within the meaning of S. 220
of the Code of Civil Procedure (Zivilprozeßordnung) may be imposed upon
a party to non-contentious proceedings (Angelegenheiten der Gerichts-
barkeit in Außerstreitsachen), who, in written submissions to the
court, makes insulting remarks, thereby disregarding the authority of
the court. S. 97 of the Court Organisation Act provides that the
provisions of the Court Organisation Act apply to matters of criminal
jurisdiction to the extent that they are suitable and that there are
no special provisions concerning criminal proceedings; there is no
appeal against penalties imposed in such context.
According to S. 220 para. 1 of the Code of Civil Procedure, a
penalty (Ordnungsstrafe) may not exceed the amount of AS 20,000.
S. 220 para. 3 provides that imprisonment may be ordered in default of
payment of a fine (Geldstrafe). The term of imprisonment shall be
determined by the court, but may not exceed ten days.
SS. 3. a to 3. g of the Act on the Prohibition of the National
Socialist Party (Verfassungsgesetz über das Verbot der NSDAP) define
various criminal offences relating to activities in the spirit of
National Socialism ("Betätigung im nationalsozialistischen Sinn").
COMPLAINTS
1. The applicant complains under Article 6 of the Convention that
he did not have a fair hearing by an impartial tribunal, and could not
exercise his defence rights, in respect of the Austrian court decisions
imposing penalties upon him for "offences against the order in court".
He also appears to invoke Article 13 of the Convention in this respect.
2. The applicant further complains under Article 13 of the
Convention that he did not have an effective remedy as regards the
above penalties.
3. The applicant complains under Article 7 of the Convention that
the Austrian courts, by imposing these penalties, found him guilty of
a criminal offence not provided for under Austrian law.
4. He further considers that these court decisions violated his
right to freedom of thought under Article 9, and his right to freedom
of expression under Article 10 of the Convention. He also invokes
Article 17.
5. Moreover, the applicant complains that the immediate execution
of the penalty of one day's imprisonment imposed upon him on
17 September 1991 as well as the subsequent consecutive execution of
the terms of imprisonment in default of payment of earlier fines
amounted to inhuman and degrading treatment contrary to Article 3 of
the Convention.
6. Finally, the applicant considers that, as a result of the various
decisions to impose penalties upon him for "offences against the order
in court", he did not have a fair hearing, contrary to Article 6 of the
Convention, in the criminal proceedings against him concerning the
charges of fraud and bankruptcy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 September and registered on
3 October 1991.
On 11 March 1992 the Commission decided to communicate the
application to the respondent Government for written observations on
its admissibility and merits.
Observations were submitted by the Government on 13 November
1992. The applicant submitted observations in reply on 20 December
1992, and amended them on 9 February 1993.
On 11 December 1992 the Commission decided to grant the applicant
legal aid.
On 11 May 1993 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application regarding
the applicant's complaints under Article 6 para. 1 and Article 10 of
the Convention and Article 2 of Protocol No. 7 to the Convention that,
in the course of criminal proceedings against him, fines were imposed
upon him for "offences against the order in court".
The hearing took place on 3 December 1993. The applicant was
represented by Mr. Schwab, counsel, and attended the hearing in person.
The respondent Government were represented by Mr. Okresek, Head of
International Affairs Division, Constitutional Service, Federal
Chancellery, Agent, as well as Mr. Schmidt, Human Rights Division,
International Law Department, Federal Ministry for Foreign Affairs, and
Ms. Gartner, Public Prosecutor, Criminal and Clemency Cases Department,
Federal Ministry of Justice, Advisers.
THE LAW
1. The applicant complains under Articles 6 and 13 (Art. 6, 13) of
the Convention that he did not have a fair hearing by an impartial
tribunal, and could not exercise his defence rights, in respect of the
Austrian court decisions imposing penalties upon him for "offences
against the order in court".
Article 6 (Art. 6) of the Convention, so far as relevant,
provides as follows:
"1. 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. ...
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; ..."
a. The Government submit that the alleged violations of the
applicant's Convention rights have been redressed at the domestic level
in respect of the Wels Regional Court's decisions of 24 June and
17 September 1991, respectively, and in respect of the decisions of the
President of the Wels Regional Court dated 23 January and 6 July 1990.
Any fines already paid by the applicant could be recovered, and he
could claim compensation with regard to the one day's imprisonment
already served by him.
The Commission notes that the Wels Regional Court's decision of
24 June 1991 was quashed by the Austrian Supreme Court on 25 February
1992, the Regional Court's decision of 17 September 1991 was quashed
on 4 August 1992. The above-mentioned decisions taken by the President
of the Wels Regional Court were quashed in October and November 1991,
respectively.
In these circumstances, the Commission finds that the alleged
violation of the Convention regarding the above-mentioned four
decisions and proceedings concerned were rectified at the domestic
level. Consequently, the applicant, in these respects, cannot claim to
be a victim of a violation of his right under Article 6 (Art. 6) of the
Convention.
It follows that this part of the application is inadmissible
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b. The Government further submit that the applicant failed to
comply, as required by Article 26 (Art. 26) of the Convention, with the
six-months' time-limit for lodging his complaints as regards the
decisions taken prior to 23 March 1991.
The Commission notes that the applicant introduced his
application with the Commission on 23 September 1991. In accordance
with the six-months' rule under Article 26 (Art. 26) of the Convention,
the Commission is not called upon to examine the applicant's complaints
about the Wels Regional Court's decisions of 11 February and 6 March
1986 as well as 24 January 1991, taken in the course of the criminal
proceedings against him. Furthermore, his complaints concerning several
decisions taken in the course of the bankruptcy proceedings, namely the
Linz Court of Appeal's decisions of 21 May 1987 and 7 August 1989,
moreover his complaints about the Wels Regional Court's decisions of
17 July and 11 November 1987, 4 and 11 March 1988, and his complaint
about the Linz Court of Appeal's decision of 7 August 1989 relating to
the custody proceedings, were lodged out of time.
Consequently, this part of the application is inadmissible under
Article 27 para. 3 in conjunction with Article 26 (Art. 27-3+26) of the
Convention.
c. The Government further contend that Article 6 (Art. 6) of the
Convention does not apply to the present case. They consider that the
Austrian court decisions to impose fines upon the applicant for
"offences against the order in court" within the meaning of S. 233 of
the Austrian Code of Criminal Procedure and S. 220 of the Code of Civil
Procedure did not relate to a punishment for criminal behaviour, but
was of a disciplinary nature. Referring to the case-law of the
Convention organs, in particular the Court's Campbell and Fell judgment
of 28 June 1984 (Series A no. 80), the Government submit that, in order
to maintain the authority of the court, "offences against the order in
court" must not be disregarded, however, did not require criminal
prosecution.
As to the question of compliance with Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention the Government submit that, regarding
the nature of the offence and proceedings in question, there was no
unfairness or undue restriction of the applicant's rights of defence.
The courts concerned were impartial, the imposition of a fine for an
"offence against the order in court" could only be decided upon by the
judge competent in the main proceedings, even if the insulting remarks
related to him.
The Commission finds that the applicant's complaints about the
lack of a fair trial regarding the decisions of the Wels Regional Court
of 2 and 8 April 1991 and of the Linz Court of Appeal of 17 July 1991
raises difficult questions of fact and of law which require an
examination of the merits. No other ground for declaring it
inadmissible has been established.
2. The applicant further complains under Article 13 (Art. 13) of the
Convention that he did not have an effective remedy as regards the
above penalties.
The Commission has considered this aspect of the applicant's
complaint under Article 2 of Protocol No. 7 (P7-2) which, as far as
relevant, provides as follows:
"1. Everyone convicted of a criminal offence by a tribunal shall
have the right to have his conviction or sentence reviewed by a
higher tribunal. The exercise of this right, including the
grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences
of a minor character, as prescribed by law, ..."
The Government, referring to their submissions as to Article 6
(Art. 6), contend that Article 2 para. 1 of Protocol No. 7 (P7-2) does
not apply, either. They also argue that, in any event, punishment for
an "offence against the order in court" related to a minor offence
within the meaning of Article 2 para. 2 of Protocol No. 7 (P7-2-2) in
respect of which exceptions to the right of review were permitted. In
particular, S. 233 para. 3 of the Code of Criminal Procedure only
permitted a penalty of imprisonment if indispensable for maintaining
the order.
The Commission, assuming that the above court decisions imposing
fines upon the applicant for "offences against the order in court"
related to a criminal offence within the meaning of Article 2 of
Protocol No. 7 (P7-2), had regard to paragraph 2 of this provision,
which subjects the right to review by a higher tribunal to "exceptions
in regard to offences of a minor character, as prescribed by law".
The Commission notes that S. 85 of the Court Organisation Act in
conjunction with S. 220 of the Code of Civil Procedure provides for a
fine and imprisonment in default of payment. S. 235 of the Code of
Criminal Procedure also envisages a fine, and, if indispensable for
maintaining the order, imprisonment not exceeding eight days. S. 7 of
this Code provides for imprisonment in default of payment.
The Commission finds that an "offence against the order in court"
within the meaning of the Austrian Court Organisation Act, in
conjunction with the Code of Civil Procedure, and the Code of Criminal
Procedure, respectively, constitutes a less serious offence both as to
its nature and to the severity of the punishment involved. The
Commission therefore considers an "offence against the order in court"
as being of a minor character. The exception to the right to a review
by a higher tribunal, pursuant to Article 2 para. 2 of Protocol No. 7
(P7-2-2), thus applies.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains under Article 7 (Art. 7) of the
Convention that the Austrian courts, by imposing these penalties, found
him guilty of a criminal offence not provided for under Austrian law.
Article 7 para. 1 (Art. 7-1) of the Convention, as far as
relevant, reads as follows:
"No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed."
In the sphere of criminal law Article 7 para. 1 (P7-1) confirms
the general principle that legal provisions which interfere with
individual rights must be adequately accessible, and formulated with
sufficient precision to enable the citizen to regulate his conduct.
Article 7 para. 1 (P7-1) prohibits in particular that existing offences
be extended to cover facts which previously clearly did not constitute
a criminal offence (cf. No. 13079/87, Dec. 6.3.89, D.R. 60 p. 256).
The Commission, assuming that Article 7 para. 1 (P7-1) applies
to the present case, recalls its above findings that any violations as
regards the Wels Regional Court's decisions of 24 June and 17 September
1991, respectively, and the decisions of the President of the Wels
Regional Court dated 23 January and 6 July 1990 were rectified at the
domestic level. Furthermore, complaints about any decisions prior to
23 March 1991 have been lodged out of time.
The Commission has examined the applicant's submissions relating
to the Wels Regional Court's decisions of 2 and 8 April 1991, and to
the Linz Court of Appeal's decision of 17 July 1991.
The Commission notes that the Wels Regional Court imposed fines
upon the applicant for "offences against the order in court" amounting
to AS 5,000 and AS 7,500, respectively. The decisions were based upon
S. 233 para. 3 of the Austrian Code of Criminal Procedure. The Linz
Court of Appeal imposed a fine of AS 10,000 under S. 85 para. 1 and
S. 97 of the Court Organisation Act in conjunction with S. 220 of the
Code of Civil Procedure. These provisions lay down penalties in cases
of insulting remarks or other behaviour disregarding the authority of
the court. The Wels Regional Court found the applicant in breach of
S. 235 of the Code of Criminal Procedure in that he had reproached the
Presiding Judge in the criminal proceedings against him with misuse of
powers and criminal conduct. The Linz Court of Appeal considered that
the applicant, in written submissions, had made insulting remarks about
the Presiding Judge in the criminal proceedings against him, requiring
penalties under S. 85 para. 1, S. 97 of the Court Organisation Act in
conjunction with S. 220 of the Code of Civil Procedure.
The Commission considers that the application of S. 233 para. 3
of the Code of Criminal Procedure as well as S. 85 para. 1, S. 97 of
the Court Organisation Act in conjunction with S. 220 of the Code of
Civil Procedure in the present case cannot be regarded as a violation
of Article 7 para. 1 (P7-1) of the Convention.
It follows that the applicant's complaint under Article 7 para. 1
(Art. 7-1) is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
4. The applicant further maintains that the court decisions
concerned violated his rights under Articles 9 and 10 (Art. 9, 10) of
the Convention. He also invokes Article 17 (Art. 17) of the Convention.
The Commission finds that the court decisions imposing penalties
upon the applicant for "offences against the order in court" do not
show any lack of respect for his freedom of thought under Article 9
(Art. 9) of the Convention.
Further, any interference with his right to freedom of
expression, as guaranteed under Article 10 (Art. 10) of the Convention,
was justified under Article 10 para. 2 (Art. 10-2) of the Convention.
In particular, the penalties were provided for in the Austrian Code of
Criminal Procedure, the Court Organisation Act and the Code of Civil
Procedure, respectively. They served the legitimate aims of protecting
the reputation of others and maintaining the authority of the
judiciary.
The Commission finds no appearance of a violation of these
Convention rights invoked by the applicant.
Accordingly, these complaints are also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. Moreover, the applicant complains that the immediate execution
of the penalty of one day's imprisonment imposed upon him on
17 September 1991 as well as the subsequent consecutive execution of
the terms of imprisonment in default of payment of earlier fines
amounted to inhuman and degrading treatment contrary to Article 3
(Art. 3) of the Convention.
The Commission observes that the Wels Regional Court's decision
of 17 September 1991 was later quashed and that the applicant meanwhile
file compensation claims. The Commission finds no indication that the
execution of the various penalties amounted to inhuman or degrading
treatment within the meaning of Article 3 (Art. 3) of the Convention.
Consequently, the applicant's complaints under Article 3
(Art. 3) are manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
6. Finally, the applicant considers that, as a result of the various
decisions to impose penalties upon him for "offences against the order
in court", he does not have a fair hearing, contrary to Article 6
(Art. 6) of the Convention, in the criminal proceedings against him
concerning the charges of fraud and bankruptcy offences.
The Commission recalls that the question whether or not court
proceedings satisfy the requirements of Article 6 para. 1
(Art. 6-1) of the Convention can only be determined by examining the
proceedings as a whole, i.e. once they have been concluded. However,
it is not impossible that a particular procedural element could be so
decisive that the fairness of the proceedings could be determined at
an earlier stage (No. 9938/82, Dec. 15.7.86, D.R. 48 p. 21). The
Commission, noting that the criminal proceedings in question have not
yet been completed, finds that the applicant's submissions do not
disclose any such circumstances.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaints that he did not have a fair hearing by an
impartial tribunal in respect of the Wels Regional Court's
decisions of 2 and 8 April 1991 and the Linz Court of Appeal's
decision of 17 July 1991,
DECLARES INADMISSIBLE the remainder of the application.
Deputy Secretary to the Commission President of the Commission
(M. de Salvia) (C.A. Nørgaard)
Full & Egal Universal Law Academy