E. Recapitulation (paras )... 12

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1 EUROPEAN COMMISSION OF HUMAN RIGHTS Application No /91 Wilhelm Putz against Austria REPORT OF THE COMMISSION (adopted on 11 October 1994) TABLE OF CONTENTS Page I. INTRODUCTION (paras. 1-17) A. The application (paras. 2-4) B. The proceedings (paras. 5-12) C. The present Report (paras ) II. ESTABLISHMENT OF THE FACTS (paras ) A. The particular circumstances of the case (paras ) B. The relevant domestic law (paras ) III. OPINION OF THE COMMISSION (paras ) A. Complaints declared admissible (para. 36) B. Points at issue (para. 37) C. Article 6 of the Convention (paras ) CONCLUSION (para. 71) D. Article 13 of the Convention (paras ) CONCLUSION (para. 75) E. Recapitulation (paras ) DISSENTING OPINION OF MR. C.A. NØRGAARD joined by MR. S. TRECHSEL, MRS. G.H. THUNE, MM. F. MARTINEZ, Seite 1

2 M.P. PELLONPÄÄ and I. BÉKÉS APPENDIX I : HISTORY OF THE PROCEEDINGS APPENDIX II : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION 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 applicant, born in 1936, is an Austrian national and resident in Bad Goisern. He is a civil engineer and businessman by profession. As from January 1993 he was represented by Mr. C. Schwab, a lawyer practising in Wels. 3. The application is directed against Austria. The respondent Government were represented by their Agent, Mr. F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 4. The case concerns 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, imposing penalties upon him for "offences against the order in court", and that he had no effective remedy in respect of these court decisions. B. The proceedings 5. The application was introduced on 23 September and registered on 3 October On 11 March 1992 the Commission decided to communicate the application to the respondent Government for written observations on its admissibility and merits. 7. Observations were submitted by the Government on 13 November The applicant submitted observations in reply on 20 December 1992, and amended them on 9 February On 11 December 1992 the Commission decided to grant the applicant legal aid. 9. 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 good order in court proceedings". 10. The hearing took place on 3 December 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 applicant was represented by Mr. Schwab, counsel, and attended the hearing in person. 11. On 3 December 1993 the Commission declared admissible the applicant's complaints, as mentioned above (para. 4). Seite 2

3 12. 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 13. 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. 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 G.B. REFFI M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS 14. The text of this Report was adopted on 11 October 1994 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. 15. 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. 16. A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II. 17. 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 particular circumstances of the case a. Factual background 18. In 1985 criminal proceedings were instituted before the Wels Regional Court against the applicant and others on the suspicion of fraud and bankruptcy offences. In the course of these proceedings, various penalties (Ordnungsstrafen) were imposed upon the applicant for "offences against the good order in court proceedings". b. The first fine 19. On 2 April 1991, in the course of the trial against the applicant, the Wels Regional Court (Kreisgericht), referring to S. 235 Seite 3

4 of the Code of Criminal Procedure (Strafprozeßordnung), imposed a fine of AS 5,000 upon the applicant for an offence against the good order in court proceedings. The Court noted that, in accordance with S. 237 para. 1 of the Code of Criminal Procedure, there was no appeal against this decision. 20. In its written decision, the Regional Court stated that, in the course of the criminal proceedings against him, the applicant had already been repeatedly warned about disciplinary measures under S. 235 of the Code of Criminal Procedure in view of his behaviour and constant, untenable reproaches against the Presiding Judge in particular. 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. 21. On 16 April 1991 the applicant received the written version of the decision of 2 April On 21 April 1991 the Wels Regional Court issued a payment order against the applicant regarding the above fine. The fine was subsequently transformed into a term of three days' imprisonment in default of payment. On 3 December 1991 the Wels Regional Court summoned the applicant to serve the prison term. The fine was thereupon paid. c. The second fine 22. 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 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. 23. 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 decision of 8 April 1991 on 20 April In default of payment, this fine was subsequently transformed into a term of five days' imprisonment. On 3 December 1991 the Wels Regional Court summoned the applicant to serve the prison term. The fine was thereupon paid. d. The third fine 24. On 17 July 1991 the Linz Court of Appeal (Oberlandesgericht), 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. 25. 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 the applicant, had made insulting remarks and thereby undermined the authority of the judiciary. He had in particular stated that the Seite 4

5 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 alleged misuse of official powers in a lawful manner. 26. On 18 March 1992 a payment order concerning the fine of 8 April was issued against the applicant. The fine was paid on 26 March B. The relevant domestic law 27. SS. 232 to 238 of the Austrian Code of Criminal Procedure (Strafprozeßordnung) concern the powers of the presiding judge and of the court for maintaining order in the court at the trial. 28. According to S. 233 para. 1, the presiding judge ensures the peace and order in court as well as the good behaviour corresponding to the dignity of the court. Paragraph 3 of this provision prohibits signs of approval or disapproval, and entitles the presiding judge to admonish persons disturbing the proceedings by making such signs or otherwise, or to order, if necessary, that some or all listeners be removed from the court room. Furthermore, if the admonished person disobeys or if the disturbances are repeated, the presiding judge 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. 29. S. 235 relates to "offences against the good order in court proceedings" 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." 30. S. 237 para. 1 of the Code of Criminal Procedure provides that decisions under S. 235 are immediately enforceable, and that no appeal lies against them. Paragraph 2 of S. 237, in conjunction with S. 278, regulate the procedure regarding criminal offence committed in court when the perpetrator is apprehended in the act. Thus the court may, upon the request of the public prosecutor and having heard the person charged and the witnesses present, determine this charge immediately, either after having interrupted the trial or at its end. 31. S. 7 para. 1 of the Code of Criminal Procedure provides that the court, if a fine (Geldstrafe) imposed under this Code cannot be collected, may reassess the fine in case of a change in the situation of the person concerned, or, otherwise has to convert it into a term of imprisonment in default of payment (Ersatzfreiheitsstrafe) not exceeding eight days. According to paragraph 2, the execution of this term of imprisonment is governed by the provisions of the Execution of Sentences Act (Strafvollzugsgesetz) regarding terms of imprisonment not exceeding three months. As regards decisions to convert a fine into a term of imprisonment in default of payment, an appeal may be lodged in accordance with S. 114 para. 1 of the Code of Criminal Procedure. 32. 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 Seite 5

6 a party to non-contentious proceedings (Angelegenheiten der Gerichtsbarkeit 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; no appeal lies against decisions imposing penalties in such context. 33. 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. 34. According to S. 18 of the Austrian Penal Code (Strafgesetzbuch), terms of imprisonment range between one day and twenty years, or life imprisonment. S. 19 paras. 1 and 2 of the Penal Code provide that fines have to be determined on the basis of daily rates, taking into account the personal and financial situation of the offender. The minimum fine is two daily rates, the range of one daily rate is from AS 30 to AS 4, S. 67 of the Austrian Code of Criminal Procedure provides, inter alia, that a judge is disqualified from carrying out judicial acts in criminal proceedings if he is the victim of the offence in question. III. OPINION OF THE COMMISSION A. Complaints declared admissible 36. The Commission has declared admissible 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 imposing penalties upon him for offences against the good order in court proceedings; - that he did not have an effective remedy in respect of the above court decisions. B. Points at issue 37. Accordingly, the issues to be determined are - whether there has been a violation of Article 6 paras. 1 and 3 (Art. 6-1,3) of the Convention; - whether there has been a violation of Article 13 of the Convention. C. Article 6 (Art. 6) of the Convention 38. Article 6 (Art. 6) of the Convention, so far as relevant, provides as follows: "1. In the determination of his civil rights and obligations or 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 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 Seite 6

7 him; PUTZ v. AUSTRIA 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. Applicability of Article 6 (Art. 6) 39. The applicant submits that the decisions imposing the penalties upon him involved a determination of a criminal charge against him within the meaning of the above provision. 40. The Government contend that Article 6 (Art. 6) of the Convention does not apply. They consider that the Austrian court decisions to impose fines upon the applicant for contempt of 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 were 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, cases of contempt of court must not be disregarded. However, they did not require criminal prosecution. 41. The Commission has considered whether the proceedings complained of related to a "criminal charge" against the applicant within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the applicant's "civil rights and obligations" not being at issue in the present case. 42. The Commission has examined this question in the light of the criteria established in the case-law of the European Court of Human Rights (Eur. Court H.R., Engel and Others judgment of 8 June 1976, Series A no. 22, p. 35, para. 82; Öztürk judgment of 21 February 1984, Series A no. 73, pp , paras ; Lutz judgment of 25 August 1987, Series A no. 123, p. 23, para. 55; Weber judgment of 22 May 1990, Series A no. 177, pp , paras ; Demicoli judgment of 27 August 1991, Series A no. 210, pp , paras ; Ravnsborg judgment of 23 March 1994, Series A no. 283-B, pp , paras ). The Commission also recalls that Article 6 (art. 6) was previously applied to criminal proceedings regarding offences of "contempt of court" (No. 8083/77, X. v. United Kingdom, D.R. 19 p. 223). 43. The Commission thus has to ascertain first whether the provisions defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This factor is of relative weight, but serves as a starting point. 44. In the Austrian legal system, the applicant's penalties were based on S. 235 of the Code of Criminal Procedure and on S. 85 para. 1 and S. 97 of the Court Organisation Act, in conjunction with S. 220 of the Code of Civil Procedure, not on provisions of the Penal Code. The provisions at issue are found in the context of the powers of the presiding judge or the court to maintain the order in court, and it is for the presiding judge or the court sitting in a particular case to apply the said provisions on its own motion. Regarding criminal offences committed in court, S. 237 para. 2, in conjunction with Seite 7

8 S. 278, regulate a specific procedure. The expressions "penalty" ("Ordnungsstrafe"), "fine" ("Geldstrafe") or "imprisonment" ("Haft"), or "imprisonment in default of payment of a fine" ("Ersatzfreiheitsstrafe") used in the provisions concerned give an indication towards a criminal classification. However, there is no clear indication that the provisions concerning offences against the good order in court proceedings belong to criminal law under Austrian legislation. 45. As regards the second, weightier criterion, namely the very nature of the offence, the Commission recalls that disciplinary sanctions are generally designed to ensure that members of particular groups comply with the specific rules governing their conduct, or relate to acts in breach of the internal regulations or impairing the orderly functioning of a legal body, whereas the parties only take part in court proceedings as people subject to the jurisdiction of the courts and do not, therefore, normally come within the disciplinary sphere of the judicial system (cf. Weber judgment, loc. cit., para. 33; Demicoli judgment, loc. cit., p. 17, para. 33). However, rules ordering a court to sanction disorderly conduct in proceedings before it, a common feature of legal systems of the Contracting States, derive from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings. Measures ordered by a court under such rules are more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence (cf. Ravnsborg judgment, loc. cit, para. 34). 46. In the present case, the Austrian courts applied S. 235 of the Code of Criminal Procedure, and S. 85 para. 1 and S. 97 of the Court Organisation Act, in conjunction with S. 220 of the Code of Civil Procedure. The Commission notes that, while S. 233 of the Code of Criminal Procedure generally provides for means to ensure peace, order and good behaviour in court, including penalties for improper conduct of listeners, the behaviour defined in S. 235 may have some features of the criminal offences of insult and defamation. However, it remains decisive that the Austrian courts took their decisions against the applicant with the intention to discipline him for a behaviour at the trial against him or in the course of appeal proceedings, respectively, namely for remarks which they regarded as improper and disturbing. 47. The kind of proscribed conduct for which the applicant was repeatedly fined has, therefore, rather the appearance of a "disciplinary nature" and falls in principle outside the ambit of Article 6 (Art. 6). 48. Notwithstanding the non-criminal character of the proscribed misconduct, the nature and degree of severity of the penalty that the person concerned incurring - the third criterion - may bring the matter into the criminal sphere (cf. Ravnsborg judgment, loc. cit., p. 11, para. 35). 49. The Commission notes that, in accordance with S. 235 of the Austrian Code of Criminal Procedure, the fine for an offence against the good order in court proceedings provides for a maximum fine of AS 10,000, and, if indispensable to maintain the order, a term of imprisonment not exceeding eight days could be imposed. Moreover, S. 220 of the Code of Civil Procedure provides for a maximum fine of AS 20,000. Fines which cannot be collected may be converted into a term of imprisonment not exceeding eight or ten days, respectively. The courts imposed fines amounting to AS 5,000, AS 7,000 and AS 10,000 upon the applicant; two of these were converted into terms of imprisonment, but following payment, the applicant did not have to serve them. 50. The Commission finds the range of penalties for offences against the good order in court proceedings more serious than those examined in the above-mentioned Ravnsborg judgment, where the penalty for an offence against the good order in court proceedings was a fine amounting to 1,000 Swedish kronor, which was convertible into a term Seite 8

9 of imprisonment only following further court proceedings in which the offender had to be summoned for an oral hearing (cf. Ravnsborg judgment, loc. cit.). 51. The Commission considers that the maximum penalty involving a deprivation of liberty up to eight or ten days, respectively, though only applicable in aggravating circumstances not existing in the present case, should be taken into account when assessing the nature and degree of severity of the penalty for the offence at issue. 52. The Commission recalls that in a society subscribing to the rule of law, there belong to the "criminal" sphere deprivations of liberty liable to be imposed as a punishment, except those, which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so (cf. Engel judgment, loc. cit., p. 35, para. 82). 53. The Commission finds that deprivation of liberty for a period up to eight or ten days is of a considerable duration. In this context, the Commission observes that according to S. 18 of the Austrian Penal Code, the minimum term of imprisonment is one day. Moreover, such terms of imprisonment imposed under S. 235 were to be executed under the provisions of the Execution of Sentences Act like a term of imprisonment imposed for an offence prescribed in the Penal Code. 54. Furthermore, the Commission observes that the maximum fines for offences against the good order in court proceedings come within the range of fines provided for under the Penal Code. Decisions to convert a fine are, pursuant to the S. 7 of the Austrian Code of Criminal Procedure and S. 220 of the Code of Civil Procedure, taken by a court; however, there are no provisions ensuring that the person concerned has to be heard by the court in the context of such proceedings. 55. In these circumstances, the Commission is of the opinion that the penalties at stake in the applicant's case were important enough to warrant classifying the offences as "criminal" under the Convention (see Engel and Others judgment, loc. cit.; Weber judgment, loc. cit., para. 34; Demicoli judgment, loc. cit., p. 17, para. 34). 56. Consequently, Article 6 (Art. 6) of the Convention applies in the present case. b. Compliance with Article 6 (Art. 6) 57. As to the question of compliance with Article 6 paras. 1 and 3 (Art. 6-1,3) 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. They maintain that the courts concerned were impartial, the imposition of a fine for an offence against the good order in court proceedings could only be decided by the judges competent in the main proceedings, even if the insulting remarks related to them. 58. The Commission recalls that the guarantees in paragraph 3 of Article 6 (Art. 6-3) are specific aspects of the right to a fair trial set forth in paragraph 1, and will, therefore, consider the applicant's complaints under the two provisions taken together (cf. Eur. Court H.R., Kremzow judgment of 21 September 1993, Series A no. 268-B, p. 41, para. 44; Isgrò judgment of 19 February 1991, Series A no. 194, p. 12, para. 31). 59. The applicant's complaints relate to court decisions imposing penalties upon him for offences against the good order in court proceedings; two of them were taken by the Wels Regional Court and the third by the Linz Court of Appeal. The Commission will examine the issues raised by the applicant regarding the Wels Regional Court's Seite 9

10 decisions and the Linz Court of Appeal's decision in turn. 60. The Wels Regional Court, in the course of the trial of 2 and 8 April 1991, respectively, decided to sanction the applicant for his behaviour at the hearings, in particular for having raised untenable accusations and reproaches against the Presiding Judge regarding the conduct of the proceedings. 61. The Commission recalls that the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (cf. Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21, para. 46; Thorgeir Thorgeirsson judgment of 25 June 1992, Series A no. 239, p. 23 para. 49; Fey judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 28; Padovani judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 25). 62. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (Padovani judgment, loc. cit., para. 26). The applicant has not shown that there was any personal bias on the part of the judges in question. 63. Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. What is decisive is whether the applicant's fear that a particular judge lacks impartiality can be regarded as objectively justified (cf. Hauschildt judgment, loc. cit., para. 48; Thorgeir Thorgeirsson judgment, loc. cit., para. 51, Fey judgment, loc. cit., para. 30; Padovani judgment, loc. cit., para. 27; Nortier judgment of 24 August 1993, Series A no. 267, p. 15, para. 33). 64. The decisions of 2 and 8 April 1991 imposing penalties upon the applicant for offences against the good order in court proceedings were taken by judges, including the Presiding Judge at the Wels Regional Court, who were directly affected by the punishable behaviour in question. 65. As regards criminal proceedings in general, S. 67 of the Austrian Code of Criminal Procedure which lays down that a judge is disqualified from carrying out judicial acts in criminal proceedings if he is the victim of the offence in question, manifests the national legislature's concern to remove all reasonable doubts as to the impartiality of a judge in such a situation (cf., mutatis mutandis, Eur. Court H.R., Oberschlick judgment of 23 May 1991, Series A no. 204, p. 23, para. 50). 66. The decisions in question were thus taken by a tribunal whose impartiality appears open to doubt. 67. Moreover, the Wels Regional Court imposed the penalties in question in the course of the trial against the applicant, thereby reacting immediately to his behaviour which was found to constitute an offence against the good order in court proceedings. While the applicant had been repeatedly warned about disciplinary measures under S. 235 of the Code of Criminal Procedure in view of his behaviour in court and his reproaches against the Presiding Judge in particular, the Regional Court did not give the applicant an opportunity to put forward any arguments in his defence, both regarding his behaviour as such and as to the kind and amount of a possible penalty before rendering the decisions concerned. 68. The Linz Court of Appeal, in its decision of 17 July 1991, sanctioned further remarks made by the applicant in written submissions to the Court of Appeal, which related to the judges sitting at his Seite 10

11 trial before the Wels Regional Court. The Commission finds that this decision was taken in a written procedure, and again the applicant did not have a hearing where he could have presented his defence. 69. As regards all above decisions, the Commission also observes that there was no appeal, the defects found could, therefore, not be cured at a subsequent stage. 70. In these circumstances, the Commission finds that, with regard to the penalties imposed by the Wels Regional Court on 2 and 8 April 1991, and by the Linz Court of Appeal on 17 July 1991, the applicant did not have a fair hearing, ensuring him the opportunity to exercise his rights of defence, as guaranteed in Article 6 paras. 1 and 3 (Art. 6-1,3) of the Convention. CONCLUSION 71. The Commission concludes, by ten votes to six, that there has been a violation of Article 6 paras. 1 and 3 (Art. 6-1,3) of the Convention. D. Article 13 of the Convention 72. The applicant also claimed that he was denied an effective remedy in respect of his complaints due to the absence of an appeal against the above decisions of 2 and 8 April and 17 July Article 13 reads: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 74. In view of the Commission's finding of a violation concerning the applicant's rights under Article 6 paras. 1 and 3 (Art. 6-1,3) of the Convention (see para. 71 above) it does not consider it necessary to examine the applicant's allegation under Article 13 of the Convention. CONCLUSION 75. The Commission concludes unanimously that it is not necessary to examine the applicant's complaint under Article 13 of the Convention. E. Recapitulation 76. The Commission concludes by ten votes to six that there has been a violation of Article 6 paras. 1 and 3 (Art. 6-1,3) of the Convention (see above para. 71); 77. The Commission concludes unanimously that it is not necessary to examine the applicant's complaint under Article 13 of the Convention (see above para. 75). Secretary to the Commission (H.C. KRÜGER) President of the Commission (C.A. NØRGAARD) DISSENTING OPINION OF MR. C.A. NØRGAARD, JOINED BY MR. S. TRECHSEL, MRS. G.H. THUNE, MM. F. MARTINEZ, M.P. PELLONPÄÄ AND I. BÉKÉS We regret that we cannot share the opinion of the majority of the Commission that there has been a violation of Article 6 of the Convention. We find that the present case cannot be distinguished from the circumstances underlying the Court's Ravnsborg judgment of 23 March Seite 11

12 It is true that the fines for offences against the good order in court proceedings under Austrian law attain the range of fines provided for under the Austrian Penal Code. They are also fairly higher than the maximum penalty at stake in the Ravnsborg case, which amounted to 1,000 Swedish kronor and was convertible into a term of imprisonment only following further court proceedings in which the offender had to be summoned for an oral hearing. Moreover, there is no specific provision under the Austrian Code of Criminal Procedure that the person concerned has to be heard by the court before a fine is converted into a term of imprisonment. Nevertheless, weighing all aspects, we consider that the penalties involved in the present case remain within the limits of what can reasonably be considered as a sanction for an offence of a disciplinary nature. In our opinion, there are no features important enough to warrant classifying these offences against the good order in court proceedings as "criminal" under the Convention, and Article 6 of the convention does not, therefore, apply. APPENDIX I HISTORY OF THE PROCEEDINGS Date Item 23 September 1991 Introduction of application 3 October 1991 Registration of application Examination of admissibility 11 March 1992 Commission's decision to communicate the case to the respondent Government and to invite the parties to submit observations on admissibility and merits 13 November 1992 Government's observations 11 December 1992 Commission's grant of legal aid 20 October 1992 Applicant's observations in reply 9 February 1993 Applicant's observations amended 11 May 1993 Commission's decision to hold a hearing 3 December 1993 Hearing on admissibility and merits 3 December 1993 Commission's decision to declare application in part admissible and in part inadmissible Examination of the merits 9 April 1994 Commission's consideration of the state of proceedings 11 October 1994 Commission's deliberations on the merits and final vote 11 October 1994 Adoption of the Report Seite 12