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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PUTZ v. AUSTRIA - 18892/91 [1996] ECHR 11 (22 February 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/11.html Cite as: (2001) 32 EHRR 13, [1996] ECHR 11, 32 EHRR 13

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In the case of Putz v. Austria (1),

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention") and

the relevant provisions of Rules of Court B (2), as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr J. De Meyer,

Mr A.N. Loizou,

Mr D. Gotchev,

Mr K. Jungwiert,

Mr P. Kuris,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 26 October 1995 and

26 January 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 57/1994/504/586. The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the

Court since its creation and on the list of the corresponding

originating applications to the Commission.

2. Rules of Court B, which came into force on 2 October 1994,

apply to all cases concerning States bound by Protocol No. 9

(P9).

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 8 December 1994

and by Mr Wilhelm Putz ("the applicant"), an Austrian national,

on 23 December 1994, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 18892/91)

against the Republic of Austria lodged with the Commission under

Article 25 (art. 25) by Mr Putz on 23 September 1991.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46); the applicant's application referred to Article 48 as

amended by Protocol No. 9 (P9) as regards Austria. The object

of the request and of the application was to obtain a decision

as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 paras. 1 and

3 (art. 6-1, art. 6-3) of the Convention.

2. On 16 January 1995 the President gave the applicant's

lawyer leave to use the German language in both the written and

the oral proceedings (Rule 28 para. 3 of Rules of Court B).

3. The Chamber to be constituted included ex officio

Mr F. Matscher, the elected judge of Austrian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On

27 January 1995, in the presence of the Registrar, the President

drew by lot the names of the other seven members, namely

Mr R. Bernhardt, Mr F. Gölcüklü, Mr J.De Meyer, Mr A.N. Loizou,

Mr D. Gotchev, Mr K. Jungwiert and Mr P. Kuris (Article 43 in

fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Austrian

Government ("the Government"), the applicant's lawyer and the

Delegate of the Commission on the organisation of the proceedings

(Rules 39 para. 1 and 40). Pursuant to the order made in

consequence, the Registrar received the Government's memorial on

18 August 1995 and the applicant's memorial on 22 August. On

28 August the Secretary to the Commission informed the Registrar

that the Delegate would submit his observations at the hearing.

On 25 August 1995 the Commission had produced the file on

the proceedings before it, as requested by the Registrar on the

President's instructions.

5. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 23 October 1995. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr W. Okresek, Head of the International Affairs

Division, Constitutional Department, Federal

Chancellery, Agent,

Mrs I. Gartner, State Counsel, Federal Ministry of

Justice,

Mrs E. Bertagnoli, International Law Department,

Federal Ministry of Foreign Affairs, Advisers;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) for the applicant

Mr C.J. Schwab, Rechtsanwalt, Counsel.

The Court heard addresses by Mr Weitzel, Mr Schwab,

Mr Okresek and Mrs Gartner.

AS TO THE FACTS

I. The circumstances of the case

6. Mr Wilhelm Putz, an Austrian national born in 1936, lives

at Bad Goisern (Upper Austria).

A. Background to the case

7. In 1985 criminal proceedings in respect of, among other

things, bankruptcy (fahrlässige Krida) were instituted against

the applicant, who was the manager of several commercial

companies. During the proceedings the Wels Regional Court

(Kreisgericht) imposed several pecuniary penalties

(Ordnungsstrafen) on him for disrupting court proceedings.

B. Decisions of the Wels Regional Court

1. The first fine

8. On 2 April 1991 the Wels Regional Court sentenced Mr Putz

to a fine of 5,000 Austrian schillings (ATS) under Article 235

of the Code of Criminal Procedure (Strafprozeßordnung - see

paragraph 19 below). It added that by Article 237 para. 1 of the

same Code (see paragraph 19 below), no appeal lay against the

decision.

In its reasons the Regional Court pointed out that during

the criminal proceedings against the applicant it had warned him

on several occasions that he was liable to disciplinary

penalties, as provided in Article 235 of the Code of Criminal

Procedure, if he persisted in his behaviour and his repeated

outbursts, in particular against the court's presiding judge.

It added that during the hearing on the merits on 2 April 1991

Mr Putz had reiterated some of these criticisms (in particular,

the assertion that the presiding judge had not complied with the

law during the committal proceedings (Zwischenverfahren) and had

taken part in the instant proceedings whereas he had allegedly

withdrawn earlier), although the Linz Court of Appeal

(Oberlandesgericht) had several times attempted to explain to him

that those accusations were baseless. The applicant had also

accused the presiding judge of having broken his oath, of

continuing to infringe the law and of having brought pressure to

bear on officials in order to "deprive him of all his defence

rights by means of deception, untruths and lies". The Regional

Court held that this last accusation, which referred to an

alleged refusal to communicate the record of the trial, was

completely baseless and unfounded, particularly when regard was

had to the presiding judge's statements on the matter; it was

consequently necessary to take a suitable disciplinary measure

against the applicant.

On 16 April 1991 the Wels Regional Court served that

decision on Mr Putz.

9. On 21 April 1991 it made an order sentencing the applicant

to pay the fine in question and subsequently converted it into

a three-day prison sentence for failure to pay.

On 3 December 1991 the Wels Regional Court ordered the

applicant to serve the prison sentence, whereupon he paid the

fine.

2. The second fine

10. On 8 April 1991 the Wels Regional Court again sentenced

Mr Putz to a fine of ATS 7,500 under Article 235 of the Code of

Criminal Procedure (see paragraph 19 below). It stated that by

Article 237 para. 1 of the same Code (see paragraph 19 below) no

appeal lay against the decision.

In its reasons the Regional Court referred to its decision

of 2 April 1991, whereby it had already imposed a pecuniary

penalty on the applicant on the basis of the same Article (see

paragraph 8 above). It pointed out that during the trial on

8 April 1991 the applicant had again made unjustified criticisms

of the presiding judge, in which he had accused him of breaking

his oath, deliberately contravening the law and conducting an

unfair criminal trial in order, among other things, to further

his own career, and having already decided on the verdict before

the end of the trial. The Regional Court held that a suitable

pecuniary penalty therefore had to be imposed on Mr Putz.

11. On 17 April 1991 the Wels Regional Court made an order

sentencing the applicant to pay the fine in question and

subsequently converted it into a five-day prison sentence for

failure to pay.

On 3 December 1991 it ordered the applicant to serve the

prison sentence, whereupon he paid the fine.

C. Decisions of the Linz Court of Appeal

1. The decision of 24 May 1991

12. On 21 April 1991 the applicant lodged a disciplinary

appeal (Aufsichtsbeschwerde) with the Linz Court of Appeal

against the Wels Regional Court's decisions of 2 and

8 April 1991.

13. On 24 May 1991 the Court of Appeal, giving its ruling in

private after hearing the prosecution, declared the appeal

inadmissible as, under Article 237 para. 1 of the Code of

Criminal Procedure, no appeal lay against the imposition of

pecuniary penalties. It held:

"Quite apart ... from the fact that the legislature has

expressly provided that such pecuniary penalties are to

be unappealable (unanfechtbar), there is no reason to

suppose that there was any denial of justice

(Rechtsverweigerung) or deliberate departure from the law

(Rechtsbeugung) on the part of the court below. The

applicant in fact insulted the presiding judge of the

court below like a criminal ... It was within the

court's powers under Article 235 of the Code of Criminal

Procedure to impose a fine of its own motion in order to

punish those manifestly unfounded accusations."

2. The third fine

14. On 20 June 1991 the applicant sent observations to the

Linz Court of Appeal.

15. On 17 July 1991 that court sentenced Mr Putz to a fine of

ATS 10,000 under sections 85 (1) and 97 of the Courts Act

(Gerichtsorganisationsgesetz - see paragraph 22 below) taken

together with Article 220 para. 1 of the Code of Civil Procedure

(Zivilprozeßordnung - see paragraph 23 below). It added that no

appeal lay against the decision.

The Court of Appeal criticised the applicant for having

made the following accusations against the presiding judge of the

court below in his pleadings:

"Judge Sturm [the presiding judge] thus prevents truth

being discovered. The method he applies during the

hearing is typical of the one employed under the Nazi

regime and the regimes in the Eastern bloc ... The

hearing is thus reduced to a sham trial designed to

confirm a preconceived judgment ... A certain

Jörg Haider is being prosecuted for reviving Nazi ideas

while violations of the law take place every day, just as

they did under Hitler or Stalin, at the Wels Regional

Court, yet no similar proceedings have been brought to

date against the judges and prosecutors concerned."

In its reasons the Court of Appeal recapitulated the

statutory provisions applicable where offensive remarks in

writing have been made about judges during criminal proceedings.

It then summarised as follows the criteria for determining

whether written submissions were offensive:

"To recapitulate, it may be pointed out here that the

question whether a document contains offensive remarks is

not for the court to decide at its discretion but has to

be determined as an issue of law. It is not necessary

that the remarks in question should amount to a criminal

offence; the only requirement is that they should be

offensive. It is similarly of no importance whether or

not there was an intention to be offensive. It suffices

that the impugned remarks are objectively offensive, that

is to say that they breach the duty of propriety towards

the authority. Nor can the fact that the defendant

believed that his criticism was well-founded justify the

offensive remarks. It may be said that remarks are

offensive where an application is drafted in such a way

that it constitutes unseemly conduct towards the

authority. This is the case where an application lacks

the moderation that, out of respect for the authority,

should be observed in dealings with it. Anyone who finds

that an authority or one of its bodies has exceeded or

misused its powers may make a complaint in the manner

prescribed by law, but he does not have the right to

injure the authority's (or body's) reputation by means of

subjective remarks which disregard the duty of

propriety."

It held that Mr Putz had overstepped the bounds of

objectivity and decency in comparing the judicial methods in the

proceedings in question to those characteristic of Nazi trials

and trials in the Eastern bloc, and in referring to criminal

violation of the law like that under Hitler or Stalin. It

therefore considered a pecuniary penalty of ATS 10,000 to be

appropriate.

16. On 18 March 1992 the Linz Court of Appeal made an order

sentencing the applicant to pay the fine in question, and on

26 March 1992 the applicant paid it.

D. The judgment of the Supreme Court

17. On 25 February 1992 an appeal brought by the applicant

against the Linz Court of Appeal's decision of 17 July 1991 was

declared inadmissible by the Supreme Court (Oberster

Gerichtshof).

II. Relevant domestic law

18. Austrian law provides that offensive remarks or unfounded

accusations made in the context of criminal proceedings are

punishable by a pecuniary penalty (Ordnungsstrafe). If the

remarks or accusations in question have been made during a

hearing, the provisions of the Code of Criminal Procedure

(Strafprozeßordnung) apply. If, on the other hand, they have

been made in writing, the applicable provisions are those of the

Courts Act (Gerichtsorganisationsgesetz) taken together with

those of the Code of Civil Procedure (Zivilprozeßordnung). In

both cases the appeal procedure is governed by the Code of

Criminal Procedure.

A. Code of Criminal Procedure

1. Keeping order in oral proceedings

19. Article 233

"1. The presiding judge shall be responsible for

ensuring peace and order in the courtroom and the

propriety of behaviour appropriate to the dignity of the

court.

2. ...

3. Displays of approval or disapproval shall be

prohibited. The presiding judge shall have the right to

call to order anyone who disturbs the proceedings by such

displays or otherwise and, if need be, to order that the

courtroom be cleared or that individual members of the

public be removed. If there is any resistance or if the

disturbances are repeated, he may impose on the person

refusing to comply a pecuniary penalty not exceeding ten

thousand schillings or, if essential for maintaining

order, commit him to prison for a period not exceeding

eight days."

Article 235

"The presiding judge must ensure that no insults or

manifestly unfounded or irrelevant accusations are made

against anyone. If the accused, a private prosecutor

(Privatankläger), a civil party to the proceedings

(Privatbeteiligter), a witness or an expert has taken the

liberty of making such remarks, the court may, at the

request of the person against whom the remarks were

directed or the public prosecutor, or of its own motion,

impose a pecuniary penalty not exceeding ten thousand

schillings or, where essential for maintaining order,

commit him to prison for a period not exceeding eight

days."

Article 237 para. 1

"Decisions taken under Articles 233 to 235 ... shall be

enforceable immediately. No appeal shall lie against

them."

2. Criminal offences

20. Article 237 para. 2

"If the conduct referred to in the aforementioned

Articles amounts to a criminal offence, the provisions of

Article 278 shall be applied."

Article 278 para. 1

"If a criminal offence is committed in the courtroom

during the trial and the offender is caught in the act,

the court may, on an application by the competent

prosecutor and after hearing the accused and any

witnesses present, deal with the matter either

immediately by adjourning or at the end of the trial.

Appeals against decisions so taken shall not have a

suspensive effect."

Article 67

"No judge or registrar may perform any judicial functions

in criminal proceedings if he is himself the victim of

the offence ..."

3. Conversion of fines

21. Article 7

"1. Where a fine imposed under the Code of Criminal

Procedure proves to be wholly or partly irrecoverable,

the court must, in cases deserving of consideration,

adjust the amount of the fine, but otherwise convert it

into a period of imprisonment not exceeding eight days.

2. The provisions of the Act on the enforcement of

custodial sentences not exceeding three months shall be

applicable, in accordance with the purpose of the Act

(dem Sinne nach), to the enforcement of the aforesaid

sentences of imprisonment in default, the enforcement of

the custodial sentences provided for in the Code of

Criminal Procedure and the enforcement of coercive

imprisonment.

3. ..."

Under Article 114 para. 1 of the same Code, an appeal lies

against decisions to convert a fine into a sentence of

imprisonment in default.

B. Courts Act

Preserving propriety in written proceedings

22. Section 85 (1)

"[Pecuniary penalties; responsibility for keeping order

in the courtroom] Without prejudice to any criminal

proceedings, the court may impose a pecuniary penalty

(Article 220 of the Code of Civil Procedure) on parties

who in written applications in non-contentious matters

show disrespect for the court by making offensive attacks

or insult the opposing party, a representative,

authorised agents, witnesses or experts."

Section 97

"[Application to criminal proceedings] The provisions of

this Act shall apply to criminal matters in so far as

they are apt for that purpose and no special rules have

been made in provisions governing criminal procedure."

C. Code of Civil Procedure

Conversion of fines

23. Article 220

"1. A pecuniary penalty (Ordnungsstrafe) may not exceed

20,000 schillings ...

2. ...

3. In the event of inability to pay, a fine (Geldstrafe)

shall be converted into imprisonment. The length of

imprisonment shall be determined by the court, but may

not exceed ten days.

4. ..."

D. Criminal Code

24. The Criminal Code contains the following rules:

Article 18

"1. ...

2. A fixed-term custodial sentence may not be for less

than one day or more than twenty years."

Article 19

"1. Fines (Geldstrafen) shall be expressed as day-fines.

They shall not amount to less than two day-fines.

2. Day-fines shall be fixed according to the offender's

means and personal circumstances at the time of the

judgment at first instance. However, they shall not

amount to less than 30 schillings or more than

4,500 schillings.

3. If a fine proves to be irrecoverable, a sentence of

imprisonment in default shall be passed. One day's

imprisonment in default shall correspond to two

day-fines.

4. ..."

PROCEEDINGS BEFORE THE COMMISSION

25. Mr Putz applied to the Commission on 23 September 1991.

Relying on Article 6 paras. 1 and 3 and Article 13 (art. 6-1,

art. 6-3, art. 13) of the Convention, he complained that he had

had neither a fair hearing by an impartial tribunal nor any

effective remedy in respect of the decisions of the Austrian

courts whereby pecuniary penalties had been imposed on him for

disrupting court proceedings. He also alleged violations of

Articles 3, 7, 9, 10 and 17 (art. 3, art. 7, art. 9, art. 10,

art. 17) of the Convention.

26. On 3 December 1993 the Commission declared the first two

complaints admissible as regards the Wels Regional Court's

decisions of 2 and 8 April 1991 and the Linz Court of Appeal's

decision of 17 July 1991, and declared the remainder of the

application (no. 18892/91) inadmissible.

In its report of 11 October 1994 (Article 31) (art. 31),

it expressed the opinion that there had been a violation of

Article 6 paras. 1 and 3 (art. 6-1, art. 6-3) (ten votes to six)

and that it was unnecessary to consider the applicant's complaint

under Article 13 (art. 13) (unanimously). The full text of the

Commission's opinion and of the dissenting opinion contained in

the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the

printed version of the judgment (in Reports of Judgments and

Decisions - 1996), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT

27. In their memorial the Government asked the Court to hold

"1. that Article 6 para. 1 (art. 6-1) of the Convention

did not apply to the proceedings in question,

or alternatively,

2. that there has been no violation of Article 6

paras. 1 and 3 (art. 6-1, art. 6-3) of the Convention in

these proceedings".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION

28. The applicant relied on Article 6 paras. 1 and 3

(art. 6-1, art. 6-3) of the Convention, which provide:

"1. In the determination of ... any criminal charge

against him, everyone is entitled to a fair and public

hearing ... by an independent and impartial tribunal ...

...

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;

..."

In his submission, pecuniary penalties for disrupting

court proceedings were "criminal" in nature and had to be imposed

in a manner that satisfied the requirements of Article 6

(art. 6).

29. The Government disputed the applicability of that

provision to the penalties in issue, which, in their view, were

not "criminal" but disciplinary. At all events, the decisions

of the Austrian courts had not breached Article 6 (art. 6).

30. The Commission concluded that the offences of which the

applicant had been accused were to be classified as "criminal"

within the meaning of the Convention and considered that the

applicant had not had a fair hearing enabling him to exercise his

defence rights as guaranteed in Article 6 paras. 1 and 3

(art. 6-1, art. 6-3).

31. In order to determine whether Article 6 (art. 6) was

applicable under its "criminal" head, the Court will have regard

to the three alternative criteria laid down in its case-law (see

the following judgments: Engel and Others v. the Netherlands,

8 June 1976, Series A no. 22, p. 35, para. 82; Weber

v. Switzerland, 22 May 1990, Series A no. 177, pp. 17-18,

paras. 31-34; Demicoli v. Malta, 27 August 1991, Series A

no. 210, pp. 15-17, paras. 30-35; Ravnsborg v. Sweden,

23 March 1994, Series A no. 283-B, p. 28, para. 30; and, as the

most recent authority, Schmautzer v. Austria, 23 October 1995,

Series A no. 328-A, p. 13, para. 27).

A. Legal classification of the offence in Austrian law

32. It must first be ascertained whether the provisions

defining the offence in issue belong, according to the domestic

legal system, to criminal law.

In the instant case the pecuniary penalties imposed on

Mr Putz were based, firstly, on Article 235 of the Code of

Criminal Procedure and, secondly, on sections 85 (1) and 97 of

the Courts Act taken together with Article 220 of the Code of

Criminal Procedure, and not on provisions of the Criminal Code

(see paragraphs 19 and 22-23 above). The relevant provisions

confer powers on the presiding judge of the court to maintain

order during court proceedings, both oral and written. In the

case of offences classified as criminal in the Criminal Code,

Articles 237 para. 2 and 278 of the Code of Criminal Procedure

provide for a separate procedure (see paragraph 20 above). The

pecuniary penalties in question are not entered in the criminal

record and their amount does not depend on income as in criminal

law (see paragraph 24 above). These features tend to show that

Austrian law does not regard them as criminal penalties.

The Court accordingly considers, like the Government and

the Commission, that there is nothing to show that in the

national legal system the provisions covering disruptions of

court proceedings belong to criminal law.

B. Nature of the offence

33. The Court notes that in Austrian law unfounded accusations

or offensive remarks made at a hearing are punishable under

Article 235 of the Code of Criminal Procedure, whereas if such

accusations or remarks have been made in writing, the applicable

provisions are sections 85 (1) and 97 of the Courts Act taken

together with Article 220 of the Code of Civil Procedure. In

both cases punishment is laid down for behaviour judged to be

disruptive.

In this respect, the situation is similar to the one in

the Ravnsborg case. Rules enabling a court to sanction

disorderly conduct in proceedings before it are a common feature

of the legal systems of most of the Contracting States. Such

rules and sanctions derive from the inherent power of a court to

ensure the proper and orderly conduct of its own proceedings.

Measures ordered by courts 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 (see the

Ravnsborg judgment previously cited, p. 30, para. 34).

The Court consequently considers, like the Government and

the Commission, that the kind of proscribed conduct for which the

applicant was fined in principle falls outside the ambit of

Article 6 (art. 6). The courts may need to respond to such

conduct even if it is neither necessary nor practicable to bring

a criminal charge against the person concerned (ibid.).

C. Nature and degree of severity of the penalty

34. Notwithstanding the non-criminal nature of the proscribed

misconduct, the nature and degree of severity of the penalty that

the person concerned risked incurring - the third criterion - may

bring the matter into the "criminal" sphere (loc. cit.,

pp. 30-31, para. 35).

35. The applicant drew attention to the large amount of the

pecuniary penalties imposed on him; such fines could be larger

than those imposed for a criminal offence. Furthermore, as the

amount of the latter was fixed according to income and he had

been bankrupt, they would even have been smaller in his case.

36. The Commission was of the opinion that the penalties

imposed in the case were large enough to warrant classifying the

offences as "criminal" under the Convention.

37. The Court notes that Article 235 of the Code of Criminal

Procedure concerning responsibility for keeping order at hearings

provides for the imposition of a fine not exceeding ATS 10,000

or, where essential for maintaining order, a custodial sentence

not exceeding eight days. If the fine proves to be

irrecoverable, the custodial sentence will be for a term of at

most eight days (Article 7 of the Code of Criminal Procedure -

see paragraph 21 above). As regards written proceedings,

Article 220 of the Code of Civil Procedure provides for the

imposition of a fine not exceeding ATS 20,000 and, in the event

of inability to pay, a custodial sentence not exceeding ten days.

In the instant case the Austrian courts sentenced Mr Putz to pay

fines of ATS 5,000, 7,500 and 10,000 (see paragraphs 8, 10 and

15 above). Two of them were converted into prison sentences, but

after payment the applicant did not have to serve these (see

paragraphs 9 and 11 above).

In this respect, the Court notes a number of

dissimilarities between the instant case and the Ravnsborg case,

in which the amount of the fines could not exceed 1,000 Swedish

kronor and the decision to convert them into custodial sentences

required a prior hearing of the person concerned. This finding,

however, is qualified by three features of the instant case:

firstly, as in the Ravnsborg case, the fines are not entered in

the criminal record; secondly, the court can only convert them

into prison sentences if they are unpaid, and an appeal lies

against such decisions (see paragraph 21 above), as it does

against custodial sentences imposed straight away at the hearing

where that course was essential for maintaining order; lastly,

whereas in the Ravnsborg case the term of imprisonment into which

a fine could be converted ranged from fourteen days to three

months, in the instant case it cannot exceed ten days.

However real they may be, the dissimilarities, which

reflect the characteristics of the two national legal systems,

therefore do not appear to be decisive. In both cases the

penalties are designed to enable the courts to ensure the proper

conduct of court proceedings (see paragraph 33 above).

Having regard to all these factors the Court considers,

like the Government, that what was at stake for the applicant was

not sufficiently important to warrant classifying the offences

as "criminal".

D. Conclusion

38. In sum, Article 6 (art. 6) did not apply to the matters

complained of and there has therefore been no breach of it.

II. ALLEGED VIOLATION OF Article 13 (art. 13) OF THE

CONVENTION

39. Mr Putz also maintained that the lack of an effective

remedy against the Wels Regional Court's decisions of 2 and

8 April 1991 and the Linz Court of Appeal's decision of

17 July 1991 had infringed Article 13 (art. 13) of the

Convention, which provides:

"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."

40. In its report the Commission, having expressed the opinion

that there had been a breach of Article 6 (art. 6), considered

it unnecessary to examine this complaint.

41. The Court points out that Article 13 (art. 13) guarantees

the availability of a remedy at national level to allege

non-compliance with the substance of the Convention rights and

freedoms in whatever form they may happen to be secured in the

domestic legal order (see the Boyle and Rice v. the United

Kingdom judgment of 27 April 1988, Series A no. 131, p. 23,

para. 52). In the instant case, however, it has held that there

was no "criminal charge" and, accordingly, that Article 6

(art. 6) did not apply. The applicant therefore cannot claim to

be the victim of a breach of rights protected by that provision.

Consequently, his complaint lies outside the ambit of Article 13

(art. 13).

FOR THESE REASONS, THE COURT

1. Holds by seven votes to two that Article 6 (art. 6) of

the Convention did not apply to the pecuniary penalties

imposed on the applicant and that there has accordingly

been no breach of it;

2. Holds by seven votes to two that Article 13 (art. 13) of

the Convention did not apply in the instant case and that

there has accordingly been no breach of it.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

22 February 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 55 para. 2 of Rules of Court B, the following

separate opinions are annexed to this judgment:

(a) dissenting opinion of Mr De Meyer;

(b) dissenting opinion of Mr Jungwiert.

Initialled: R. R.

Initialled: H. P.

DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

1. This case concerns someone who, during criminal

proceedings against him, had fines imposed on him, with prison

sentences in default of payment, for having made accusations

against the court on various occasions both at hearings and in

his pleadings.

The Court has held that Article 6 (art. 6) of the

Convention does not apply to such penalties.

I cannot approve of such a narrow interpretation.

2. The instant case is not the first one in which the Court

has had to deal with the maintenance of order in court

proceedings.

There have already been the Weber case, which concerned

a fine imposed by the President of the Criminal Cassation

Division of the Canton of Vaud on a complainant who had breached

the confidentiality of a judicial investigation (1), and the

Ravnsborg case, which concerned three fines imposed by the

Göteborg District Court and by the Court of Appeal for Western

Sweden on a litigant who had made improper remarks in his written

observations (2).

_______________

1. Weber v. Switzerland judgment of 22 May 1990, Series A

no. 177

2. Ravnsborg v. Sweden judgment of 23 March 1994, Series A

no. 283-B

_______________

Both these cases were decided by the Court in the light

of the three criteria it laid down nearly twenty years ago for

distinguishing criminal law from other sanction systems, in

particular from disciplinary provisions, namely: the

classification in the law of the State concerned, the nature of

the offence and the degree of severity of the penalty (3).

_______________

3. Engel and Others v. the Netherlands judgment of

23 November 1976, Series A no. 22, pp. 34-35, para. 82

_______________

The Court has adopted the same approach in deciding the

instant case.

Experience appears to show that these criteria are not

very satisfactory.

3. The Court recognised at the outset, in the Engel judgment,

that the "indications" afforded by the first criterion, the

classification in national law, "have only a formal and relative

value" (4).

_______________

4. Ibid., p. 35, para. 82

_______________

This criterion does indeed give too much scope to the

differences between States' legal systems.

And in fact it does not appear ever to have served to

influence the Court in one direction or the other.

The Court barely touches on this aspect of the question

in the Weber judgment (5). In the Ravnsborg case it resigned

itself to noting that the "formal classification under Swedish

law [was] open to differing interpretations" (6).

_______________

5. Weber judgment previously cited, pp. 17-18, para. 31

6. Ravnsborg judgment previously cited, p. 30, para. 33

_______________

In the present case it notes that various features "tend

to show that Austrian law does not regard [the fines in question]

as criminal penalties" and that "there is nothing to show that

in the national legal system the provisions covering disruptions

of court proceedings belong to criminal law" (7).

_______________

7. Paragraph 32 of the present judgment

_______________

What are those features and what is their persuasive

weight?

How is it relevant that "the pecuniary penalties imposed

on Mr Putz were based" not on the Criminal Code but on the Code

of Criminal Procedure, the Courts Act and the Code of Civil

Procedure? In other cases the Court has held that "the character

of the legislation which governs how the matter is to be

determined" is of little consequence for determining whether

there is a "contestation (dispute) over civil rights and

obligations" (8) and that "whether or not a right is to be

regarded as civil within the meaning of this expression in the

Convention must be determined by reference to the substantive

content and effects of the right - and not its legal

classification - under the domestic law of the State

concerned" (9). Why should matters be any different when it

comes to determining what falls within the criminal sphere?

_______________

8. Ringeisen v. Austria judgment of 16 July 1971, Series A

no. 13, p. 39, para. 94. See also the König v. Germany judgment

of 28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89, and

the Baraona v. Portugal judgment of 8 July 1987, Series A

no. 122, pp. 17-18, paras. 42 and 43

9. König judgment previously cited, p. 30, para. 89

_______________

Furthermore, what does it matter that the procedure laid

down for imposing the fines is different from the one laid down

for "offences classified as criminal in the Criminal Code", that

the fines are not entered in the criminal record or that their

amount does not depend on income? None of those can justify an

exemption from the obligation to comply with the principles of

a fair trial. That would be too easy.

4. The second criterion, the nature of the offence, is,

according to what the Court said in the Engel judgment, "a factor

of greater import" (10).

_______________

10. Engel judgment previously cited, loc. cit. See also the

Weber judgment previously cited, p. 18, para. 32

_______________

The Court spelled out its significance from the point of

view of distinguishing criminal law from disciplinary provisions

in the Weber judgment, when it said that "disciplinary sanctions

are generally designed to ensure that the members of particular

groups comply with the specific rules governing their

conduct" (11).

_______________

11. Weber judgment previously cited, p. 18, para. 33

_______________

As regards court proceedings, it said in the same judgment

that "the parties ... only take part in the proceedings as people

subject to the jurisdiction of the courts" and that "they

therefore do not come within the disciplinary sphere of the

judicial system". Noting that Article 185 of the Vaud Code of

Criminal Procedure, under which a fine had been imposed on

Mr Weber because he had breached the confidentiality of a

judicial investigation, affected "potentially ... the whole

population", it found that the "offence" it defined and to which

it attached a "punitive sanction" was "a `criminal' one for the

purposes of the second criterion" (12).

_______________

12. Ibid., loc. cit.

_______________

It is difficult to see in what respect, in this

connection, the Ravnsborg and Putz cases, to which, in the

Court's view, Article 6 (art. 6) did not apply as the measures

ordered against the two applicants were "more akin to the

exercise of disciplinary powers than to the imposition of a

punishment for commission of a criminal offence" (13), could

differ from the Weber case. Just like Mr Weber, Mr Putz and

Mr Ravnsborg did no more than "take part in the proceedings as

people subject to the jurisdiction of the courts" and the

provisions that were applied to them, like those that were

applied to Mr Weber, affected "potentially ... the whole

population".

_______________

13. Ravnsborg judgment previously cited, p. 30, para. 34, and

paragraph 33 of the present judgment

_______________

Is disruptive or disorderly conduct in proceedings before

a court (14) of a different "nature", as an offence, from

disruptive or disorderly conduct elsewhere or from other forms

of contempt of court (15), such as breaching the confidentiality

of a judicial investigation?

_______________

14. Paragraph 33 of the present judgment

15. In English law contempt in the face of the court and

contempt out of court are merely two facets of the single offence

of contempt of court. See the Sunday Times v. the United Kingdom

judgment of 26 April 1979, Series A no. 30, pp. 14-16, para. 18

_______________

What objective and reasonable justification can there be

for a difference of treatment such that, by stating that this

kind of conduct "falls outside the ambit of Article 6

(art. 6)" (16), one deprives the person guilty of it of the

safeguards of a fair trial?

_______________

16. Paragraph 33 of the present judgment

_______________

Does the "nature of the offence" allow of such a

distinction?

5. The third criterion, according to the Engel judgment, must

be "the degree of severity of the penalty that the person

concerned risks incurring" (17).

_______________

17. Engel judgment previously cited, loc. cit.

_______________

Applying this criterion leads to odd results.

The fine imposed on Mr Weber was 300 Swiss francs, the

maximum allowed by the law being 500 francs; in default of

payment, it was convertible into days of imprisonment, at the

rate of one day's imprisonment for every thirty francs of fine,

which amounted to ten days in the applicant's case, the maximum

being sixteen days. The Court held in that case that "what was

at stake was thus sufficiently important to warrant classifying

the offence with which the applicant was charged as a criminal

one under the Convention" (18). Currently, 300 and 500 Swiss

francs are equivalent to nearly 1,300 and a little over

2,100 French francs respectively.

_______________

18. Weber judgment previously cited, p. 18, para. 34

_______________

In contrast, in the cases of Mr Ravnsborg and Mr Putz the

Court held that "what was at stake for the applicant was not

sufficiently important to warrant classifying the offences as

`criminal'" (19).

_______________

19. Ravnsborg judgment previously cited, p. 31, para. 35, and

paragraph 37 of the present judgment

_______________

The three fines imposed on Mr Ravnsborg were each of

1,000 Swedish kronor, the maximum provided; in default of

payment, they could be converted into sentences of fourteen days'

to three months' imprisonment. Currently, 1,000 Swedish kronor

are worth a little under 750 French francs, which gives a total

of a little over 2,200 francs for the three fines together.

In the instant case the fines imposed on Mr Putz were of

5,000 and 7,500 Austrian schillings, converted into three and

five days' imprisonment respectively, as regards the incidents

at the hearings, and of 10,000 schillings as regards the written

accusations; the maximum was 10,000 schillings or eight days in

respect of the former offences and 20,000 schillings or ten days

in respect of the latter (20). Currently 5,000 Austrian

schillings are worth more than 2,500 French francs,

7,500 schillings are worth a little under 3,700 francs, 10,000

a little under 4,900 francs, and 20,000 nearly 9,800 francs.

_______________

20. Paragraphs 8-11, 15 and 19-24 of the present judgment

_______________

A comparison of these various amounts (21) and of the

lengths of the corresponding prison terms in default clearly

shows the inadequacy of the third criterion.

_______________

21. It may also be remembered that in the Öztürk v. Germany

case, which the Court held to be criminal in nature, the fine in

issue was of 60 German marks, the maximum being 1,000 marks

(judgment of 21 February 1984, Series A no. 73, p. 9, para. 11,

and p. 10, para. 18); those amounts are currently equivalent to

a little less than 210 French francs and a little under

3,500 francs.

_______________

But that is not all. Does it really have to be accepted

that a person does not have the right to be tried properly where

only a small fine or a short term of imprisonment is at stake?

And if so, where does the threshold of severity lie that triggers

entitlement to that right? What amount? How many days'

imprisonment?

The severity of a penalty may be taken into consideration

in order to ascertain that it was fair, in particular in the

light of the proportionality principle, or to examine more

closely the way in which it was imposed, or again, to determine

if it requires there to be a remedy (22), but it is unsuitable

as a criterion for the applicability of the guarantees in

Article 6 (art. 6) of the Convention.

_______________

22. As to the need for a remedy, Article 2 of Protocol No. 7

(P7-2) merely makes explicit what is already implicit in the

very concept of a fair trial

_______________

6. I think it would be more in accordance with the object,

aim and spirit of the Convention (23) to adopt a simpler, more

common-sense method of reasoning.

_______________

23. Here too it is necessary to "seek the interpretation that

is most appropriate in order to realise the aim and achieve the

object of the treaty, not that which would restrict to the

greatest possible degree the obligations undertaken by the

Parties" (Wemhoff v. Germany judgment of 27 June 1968, Series A

no. 7, p. 23, para. 8)

_______________

To begin with, as regards disciplinary provisions, rather

than contrast these with criminal law, it should be recognised

that they are part of it and that they constitute a special

branch of it in that they make up the criminal law peculiar to

a specific body or group.

If there is a distinction to be made, it can only be

between this special criminal law, applicable exclusively to

members of the body or group, and the general criminal law,

applicable to everyone.

The same is true of any other sanction system that might

be regarded as akin to disciplinary provisions (24) or as

distinct, on whatever ground, from the general criminal law.

_______________

24. Paragraph 33 of the present judgment. Ravnsborg judgment

previously cited, p. 30, para. 34

_______________

It seems to me that whatever names may be given to things,

any sanction imposed on someone on account of conduct considered

reprehensible is a "penalty" (25) and accordingly, by its very

"nature", comes within the criminal sphere. This must certainly

be true of any pecuniary or custodial sanction. Such sanctions

can only, in my opinion, be imposed on someone by, or under the

supervision of, a judicial authority that affords the person

concerned the safeguards laid down more or less perfectly in

Article 6 (art. 6) of the Convention.

_______________

25. Lawyer's jargon must not diverge too widely from everyday

language. Above all, it must not serve to restrict fundamental

rights

_______________

It is for the States to ensure this, under the supervision

of the Court.

7. The distinction made hitherto between criminal and "other"

proceedings, such as disciplinary proceedings, may be explained

in part by the fear of having to apply those safeguards to these

proceedings too.

It is indeed all too true that what goes on in these

"other" proceedings often leaves much to be desired in this

respect.

That is not, in my view, a sufficient reason for washing

our hands of them. On the contrary, it would be appropriate to

bring some order into them, albeit while taking due account of

the special features of the situations governed by these other

sanction systems.

Thus where, for example, discipline within the armed

forces or a code of conduct within a professional association is

involved, the judicial nature, independence and impartiality of

the authority imposing the sanction do not necessarily have to

be assessed in the same way as where a case is being tried under

the ordinary criminal law. When exercising disciplinary powers,

a hierarchical superior or a professional disciplinary council

does not have to be regarded a priori as being a tribunal less

independent or less impartial than an "ordinary" court or jury

in relation to an offence under the ordinary law (26).

_______________

26. See, as regards professional disciplinary bodies, the H.

v. Belgium judgment of 30 November 1987, Series A no. 127-B,

pp. 34-35, paras. 50-52

_______________

But at all events, in the fields covered by special

sanction systems as well as under the general criminal law, the

trial must be a fair one. In order for it to be so, it is

necessary, among other things, that the sanction should be

reasonably proportionate to the offence and that an adequate

appeal against it should lie if it exceeds a certain threshold

of severity.

8. In the Ravnsborg case it was scarcely in doubt that the

applicant had no cause to complain of a breach of his fundamental

rights.

In three pleadings, he had insulted - without making any

specific charges - the Board of the Principal Guardian, the other

boards and councils of the municipality of Göteborg, the Swedish

Supreme Court and several members of the Göteborg District

Court (27).

_______________

27. Ravnsborg judgment previously cited, p. 23, para. 10, p. 24,

para. 12, and p. 25, para. 16

_______________

I think it was obvious that these flagrant actions could

be punished summarily, without further formalities and, in

particular, without any hearing, by moderate fines, as they were

in the first case by the Göteborg District Court and in the

second and third cases by the Court of Appeal for Western Sweden.

This was all the more permissible as the applicant's intemperate

language had not been directed against the courts themselves and

these would have had discretion to convert the fines into prison

sentences only on an application by the public prosecutor and

after summoning the prosecution and the person concerned to a

hearing (28).

_______________

28. Ibid., p. 27, para. 24

_______________

In the interests of the proper, undisturbed administration

of justice, the courts must be able to punish in this way those

who indulge in such lapses of behaviour.

9. The instant case resembles the Ravnsborg case in that the

third fine was imposed on Mr Putz by the Linz Court of Appeal on

account of accusations he had made in written observations

submitted to that court against the presiding judge of the Wels

Regional Court and, more vaguely, against the "judges and

prosecutors concerned" at that court (29).

_______________

29. Paragraph 15 of the present judgment

_______________

The situation was slightly different as regards the first

two fines, which were imposed on Mr Putz by the Wels Regional

Court on account of accusations he had made out of court against

the presiding judge of the court (30).

_______________

30. Paragraphs 8 and 10 of the present judgment

_______________

In itself, despite appearances, this did not necessarily

entail a breach of Mr Putz's right to a fair trial. A court must

be able to enforce respect for its authority (31).

_______________

31. Insulting a court or making accusations against it is not

sufficient to entitle someone to claim that on that account it

is no longer an "independent and impartial tribunal established

by law" or that it can no longer give the case a "fair" hearing.

_______________

On the other hand, each of the three fines imposed on

Mr Putz was appreciably heavier than each of those incurred by

Mr Ravnsborg. This severity could raise questions on the basis

of the proportionality principle; above all, it required there

to be a remedy which would have made it possible to review both

compliance with that principle and the merits of the punishment.

But that is not all. It was not simply a question of

insults, as in Mr Ravnsborg's case; Mr Putz's main allegation was

that his judges at Wels had behaved unlawfully and unfairly

towards him.

In this connection, his counsel, Mr Schwab, pointed out

to the Court at the hearing on 23 October last, without being

contradicted by the representatives of the respondent Government,

that no incident of that kind had occurred when the applicant's

case was heard by the Innsbruck and Vienna courts.

The case therefore, it seems, came not so much within the

field of maintaining order in proceedings as within that of

challenging a judge, bringing an action against a judge for

misuse of his authority or disqualification on the ground of

reasonable suspicion of bias.

This aspect of the case, taken together with the fact that

the applicant had no remedy against the decisions in issue (32),

leads me to think that he did not have a fair trial.

_______________

32. Paragraphs 8, 10, 15 and 19 of the present judgment

_______________

10. Because there were no remedies, there has also been, in

my opinion, a breach of Article 13 (art. 13) of the Convention.

DISSENTING OPINION OF JUDGE JUNGWIERT

(Translation)

Unlike the majority of the Chamber, I have reached the

conclusion that there have been breaches of Article 6 and

Article 13 (art. 6,

art. 13) in the instant case.

The majority note certain dissimilarities between this

case and the Ravnsborg case but do not regard them as decisive.

In their opinion, what was at stake for the applicant was not

sufficiently important to warrant classifying the offences as

"criminal".

What appears to me to be decisive is the degree of

severity of the pecuniary penalties and their convertibility into

prison sentences.

It is important to note that the penalties in this case

are much more severe than in the Ravnsborg case. The fact that

the applicant did not have to serve the prison sentences does not

alter that.

I consider that the nature and degree of severity of the

penalties are important not only in this particular case but in

Austrian law in general. The nature and severity of the

penalties are further reinforced by the nature of the proceedings

(criminal and civil). A pecuniary penalty of ATS 10,000 (and

which could be as high as ATS 20,000) is at the level of a

criminal punishment. The criminal nature of the penalty is much

more apparent still if account is taken of its possible

conversion into a prison sentence. I find it difficult to

describe as disciplinary a custodial penalty of up to "only"

eight or ten days. Furthermore, if the applicant did not have

to serve the prison sentences of three and five days, it was

solely because he had earlier paid the fines. I consider that

the penalties in issue were sufficiently important for them to

be described as "criminal" within the meaning of the Convention.

I have accordingly reached the conclusion that Article 6 (art. 6)

of the Convention applies in the instant case and that there has

been a breach of it.

As regards the submissions on compliance with Article 6

(art. 6), I moreover entirely agree with the Commission's opinion

as expressed in paragraphs 57-70 of its report.

In the proceedings the applicant did not have an effective

remedy. Having found that there has been a breach of the

applicant's rights under Article 6 (art. 6) of the Convention,

I do not consider it necessary to examine in detail the issue of

the applicability of, and compliance with, Article 13 (art. 13)

of the Convention, which, in my opinion, has also been breached.