CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 17072/90                       by I.P.                       against Austria           The European Commission of Human Rights sitting in private on 29 June 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, 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 1 August 1990 by I.P. against Austria and registered on 27 August 1990 under file No. 17072/90;         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 applicant is an Austrian citizen born in 1935.   She is President of the Administrative Court (Verwaltungsgerichtshof) and is represented before the Commission by Mr. W. Schuppich, a lawyer practising in Vienna.   The facts of the case, as submitted by the applicant, may be summarised as follows.         On 27 September 1989 the Austrian Parliament (Nationalrat) set up a Parliamentary Committee of Inquiry (parlamentarischer Untersuchungsausschuß) into the way an export licence had been granted for arms ostensibly destined for Libya, but which were in fact intended to be shipped to Iran.         The Committee was set up pursuant to Article 53 para. 1 of the Federal Constitutional Law (Bundes-Verfassungsgesetz).   According to Article 53 para. 2 of that Law, regulations for the proceedings before such committees are governed by the Rules of Parliamentary Procedure (Bundesgesetz über die Geschäftsordnung des Nationalrates, "the Rules").   Rule 33(5) provides that the Code of Criminal Procedure (Strafprozeßordnung) is applicable to the taking of evidence before Committees of Inquiry; other provisions of the Code of Criminal Procedure are applicable to the extent referred to in Articles 246-254 of the Code of Criminal Procedure.   The Rules provide only for witnesses before Committees, not defendants.   The applicant considers that if questions are put to a witness concerning matters which can also be the basis of criminal offences, the effect of the proceedings can be to put a person who is technically in the role of witness, in the position of a de facto defendant (materiell Beschuldigter).           The Committee's terms of reference included         "3.    to examine the political and administrative       responsibility in the course of the licence and supervision       of the export, and clarification of the allegation".         On 16 and 20 February 1990 the applicant was questioned by the Committee into the way the export licence was granted.         The final report of the Committee, presented to Parliament on 2 April 1990, included, at point 104, the following statement:         "The Committee considers that [the applicant's] statements       that she knew nothing of the [telex] cannot be believed."         On 12 December 1991 the applicant was convicted by the Vienna Regional Court (Landesgericht) of giving false evidence to the Committee of Inquiry and to criminal courts.   In each case the evidence comprised a denial that she was aware of a specific telex.   She was fined a total of AS 270,000.    The appeal against the conviction is still pending.   COMPLAINTS         The applicant alleges a violation of Article 6 of the Convention in that in the proceedings before the Parliamentary Committee of Inquiry she was a "de facto" defendant (materiell Beschuldigter) but was not given the rights set out in Article 6 of the Convention.   THE LAW         1.   The applicant alleges a violation of Article 6 (Art. 6) of the Convention in that the guarantees secured by that provision were not available to her while she was being questioned by the Parliamentary Committee of Inquiry.   Article 6 (Art. 6) of the Convention provides, so far as relevant, 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.   Judgment shall be pronounced publicly       but the press and public may be excluded from all or part       of the trial in the interest of morals, public order or       national security in a democratic society, where the       interests of juveniles or the protection of the private       life of the parties so require, or to the extent strictly       necessary in the opinion of the court in special       circumstances where publicity would prejudice the interests       of justice.         2.    Everyone charged with a criminal offence shall be       presumed innocent until proved guilty according to law."         The Commission must consider whether Article 6 (Art. 6) of the Convention should have been applied in the proceedings before the Parliamentary Committee of Inquiry, that is, it must ascertain whether any "criminal charge" against the applicant was determined in those proceedings.         In deciding whether a "criminal charge" within the meaning of the Convention is at issue in a particular case, the case-law of the Convention organs requires, first, reference to the domestic law involved with a view to ascertaining whether the legal system of the respondent State classifies the "offence" as "criminal".    The nature of the "offence" and the degree of severity of the penalty that the person concerned risks incurring must then be considered (cf. Eur. Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22, p. 34, para. 82, Eur. Court H.R. Óztürk judgment of 21 February 1984, Series A no. 73, p. 18, para. 50;   Eur. Court H.R., Campbell and Fell judgment of 28 June 1984, Series A no. 80, pp. 35-38, paras. 70-73; Eur. Court H.R., Weber judgment of 22 May 1990, Series A no. 177, pp. 17-18, paras. 31-34 and Eur. Court H.R., Demicoli judgment of 27 August 1991. Series A no. 210, para. 31).         The applicant in the present case was called as a witness in parliamentary inquiry proceedings the aim of which was to establish political responsiblity for the export of arms.   In domestic law no offence and no formal penalty were involved.         The Commission recalls that it is possible for a person to be "charged" within the meaning of Article 6 (Art. 6) of the Convention even where domestic law sees no charge (cf. Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 23, para. 44).   In the present case, however, the role of the Parliamentary Committee of Inquiry was limited to an examination of how the controversial licence came to be issued, how the conditions laid down in the arms control legislation were circumvented, and where the political and administrative responsibility for such circumvention lay.   Such matters of general and genuine public concern established the applicant's administrative responsiblity for the matters under investigation, but there is no indication that the applicant's appearances before the Parliamentary Committee of Inquiry in any way amounted to a disguised form of criminal proceedings.   The subsequent criminal proceedings brought against the applicant for failing to tell the truth to the Parliamentary Committee are irrelevant to the question whether the Committee's proceedings determined a criminal charge.   Accordingly, there was no offence whose nature falls to be examined.         The Commission therefore finds that the subject matter before the Parliamentary Committee of Inquiry was not such as to involve the determination of any "criminal charge" against the applicant.         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).         2.   The applicant also alleges a violation of Article 6 para. 2 (Art. 6-2) of the Convention.         To the extent that this complaint relates to procedural aspects of the applicant's questioning before the Parliamentary Committee of Inquiry, it has been considered in the preceding paragraph.         To the extent that the complaint relates to the impact that the proceedings before the Parliamentary Committee of Inquiry, and the subsequent report, may have had on other proceedings, that is on the proceedings before the Vienna Regional Court in which the applicant was convicted on 12 December 1991, the Commission notes that those proceedings are still pending, and recalls that it can only assess the fairness of criminal proceedings when it is able to consider them in their entirety (cf. No. 9000/80, Dec. 11. 3. 82, D.R. 28 p. 127, with further references).   Moreover, an acquittal will normally be regarded as rectifying procedural errors alleged to have violated the Convention (cf. No. 5572/72, Dec. 8. 7. 73, D.R. 1 p. 44; No. 8083/77, Dec. 13. 3. 80, D.R. 19 p. 223).   Until the relevant proceedings have finished, with the exhaustion of domestic remedies as required by Article 26 (Art. 26) of the Convention, it is not possible to consider whether the proceedings themselves were unfair or whether the use made of the findings of the Parliamentary Committee of Inquiry violated Article 6 para. 2 (Art. 27-2) of the Convention.         This part of the application is therefore premature and must be rejected as manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission              (H.C. Krüger)                          (C.A. Nørgaard)