CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1993

.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. 19362/92                       by Albert HEBERGER                       against Germany         The European Commission of Human Rights sitting in private on 3 December 1993, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            A.S. GÖZÜBÜYÜK            J.-C. SOYER       Mrs. G.H. THUNE       MM.   F. MARTINEZ            C.L. ROZAKIS            L. LOUCAIDES            M.P. PELLONPÄÄ            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            N. BRATZA            I. BÉKÉS         Mr.   M. de SALVIA, Deputy Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 11 November 1991 by Albert HEBERGER against Germany and registered on 16 January 1992 under file No. 19362/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as they have been submitted by the parties, may be summarised as follows.         The applicant, born in 1930, is a German national and resident in Frankfurt. He is retired. Since July 1993 the applicant has been represented by Mr. Riedel, a lawyer practising in Frankfurt/Main.   A.     Particular circumstances of the case         On 12 December 1990 the applicant appeared as a witness before the Darmstadt Regional Court (Landgericht), summoned to give testimony in criminal proceedings against third persons.         According to the record of the trial the applicant appeared as the tenth witness. He first made his statements as to his personal particulars. He was then informed about his right under S. 55 of the Code of Criminal Procedure (Strafprozeßordnung) not to give evidence, if he would thereby incriminate himself. The record summarised the relevant events as follows:         "He first declared not to be willing to give evidence, but then       replied to some questions. He was shouting around, molested the       lawyers, and, even after being warned, did not calm down. The       defence counsel [H.] stated that the witness, due to consumption       of alcohol, was not fit to participate in the proceedings. He       requested that the witness be produced for the next hearing. The       Presiding Judge warned about penalties. The Public Prosecutor       suggested that an appropriate penalty be imposed upon the witness       for improper behaviour (Ungebühr) in court."         Furthermore, the Presiding Judge asked the medical expert E., who was present at the trial, for confirmation that the applicant was capable of comprehending his situation. The applicant objected to the imposition of a penalty and submitted that he was in a very poor state of health and not capable of participating in the proceedings; he also requested that evidence be taken as to his blood alcohol content level.         The Darmstadt Regional Court thereupon imposed a penalty of six days' imprisonment upon the applicant for improper behaviour in court, i.e. an "offence against the order in court" within the meaning of S. 178 para. 1 of the Court Organisation Act (Gerichtsverfassungs- gesetz). The Regional Court considered in particular that the applicant, although duly summoned, had appeared in court drunk, to an extent that he was not capable of making a proper statement. Though warned several times, he constantly interrupted the persons putting questions to him. He also claimed that one or other questions should not be put to him. This behaviour resulted from his alcoholism, which impaired his self-restraint and constantly led him to make irrelevant and rude remarks.         The decision ordering the applicant's imprisonment was executed immediately, and the applicant served the penalty until 18 December 1990.         On 31 January 1991 the Frankfurt Court of Appeal (Oberlandes- gericht) dismissed the applicant's complaint about the decision of the Presiding Judge (Beschwerde). The Court of Appeal, referring to the record of the trial, found in particular that the reason for imposing the penalty in question was sufficiently stated. The imprisonment imposed by the Presiding Judge did not appear unreasonable. As regards the applicant's complaint about unfairness and in particular the refusal of his request to take evidence on his blood alcohol content level, the Court of Appeal considered that the Presiding Judge could himself assess the question whether the applicant, having regard to his consumption of spirits, was fit to participate in the proceedings.         On 8 May 1991 the Federal Constitutional Court (Bundes- verfassungsgericht) rejected the applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success. The Constitutional Court considered that the Regional Court had duly heard the applicant, in particular as to his bodily handicaps, and then decided that his behaviour resulted nevertheless from the consumption of alcohol. The Court of Appeal had further informed him that the Presiding Judge could himself decide upon the question as to whether the applicant was unfit to participate in the proceedings. The Court's finding that the applicant's behaviour amounted to an "offence against the order in court" within the meaning of S. 178 para. 1 of the Court Organisation Act was not arbitrary, and could not be contested under constitutional law.         The applicant received the decision on 24 June 1991.   B.     Relevant domestic law         SS. 176 to 183 of the German Court Organisation Act (Gerichts- verfassungsgesetz) concern the powers of the presiding judge and of the court for maintaining order in the court in the course of hearings.         S. 178, so far as relevant, defines the "offence against the order in cour" as follows:         "1. Upon parties, accused persons, witnesses, experts or persons       not participating in the proceedings, who shows an improper       behaviour in court, a fine (Ordnungsgeld) not exceeding DM 2,000,       or imprisonment not exceeding one week may be imposed, subject       to criminal prosecution, and immediately enforced. If a fine is       imposed the imprisonment in default of payment shall be       determined at the same time.         2. The presiding judge decides upon penalties against persons not       participating in the proceedings, otherwise the court decides."         S. 179 provides that the presiding judge has immediately to order the enforcement of the penalty imposed.         S. 181 regulates the appeal (Beschwerde) against the penalty for the above "offence against the order in court. S. 182 provides for the recording of the decision on such a penalty and the reasons for it.         S. 183 provides that, when a criminal offence has been committed in court, the court concerned has to establish the facts and to forward the record to the competent authority. If necessary, the court has to order the provisional arrest of the offender.   COMPLAINTS         The applicant complains under Articles 3, 5 and 6 of the Convention that he did not have a fair hearing, and could not exercise his defence rights, regarding the Darmstadt Regional Court's decision imposing six days' imprisonment upon him for an "offence against the order in court".         The applicant claims that he was not drunk, but had suffered from various bodily handicaps and pains, and was ill. He had therefore been unfit to participate in the proceedings at the time in question. He complains in particular that his request to take expert evidence as to his capability to participate in the proceedings and his alleged consumption of alcohol were unduly dismissed.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 11 November 1991 and registered on 16 January 1992.         On 11 March 1992 the Commission decided to communicate the application for written observations on its admissibility and merits.         The Government's observations were submitted on 27 July 1992. The applicant submitted his observations in reply on 5 October 1992.   THE LAW         The applicant complains that he did not have a fair hearing, and could not exercise his defence rights, in respect of the Darmstadt Regional Court's decision of 12 December 1990 imposing six days' imprisonment upon him for "an offence against the order in court". He invokes Articles 3, 5 and 6 (Art. 3, 5, 6) of the Convention.         The Government maintain that Article 6 (Art. 6) of the Convention does not apply to the proceedings in question. They submit that under domestic law, the imposition of the term of imprisonment for "an offence against the order in court" under S. 178 of the Court Organisation Act was no criminal penalty, but a disciplinary measure. The applicant's behaviour which the Darmstadt Regional Court found to be an "offence against the order in court" did not constitute a criminal offence, otherwise it would have proceeded under S. 183 of the Court Organisation Act.         The Government also submit that, in cases of disturbances at court hearings, the good order in court could not be effectively secured by later criminal proceedings against the disturber or by his removal from the court room. Imposing a penalty for "an offence against the order in court was a further means to ensure undisturbed continuation of the court proceedings. Such decisions could be taken in a summary procedure which did not meet the formal requirements of criminal proceedings, as the offence was clearly proven.         Moreover, the Government consider that the courts' powers to impose penalties for an "offence against the order in court" serve the purpose of ensuring the right to a hearing within a reasonable time under Article 6 para. 1 (Art. 6-1) of the Convention. It would be contrary to the object and purpose of Article 6 (Art. 6), could disturbances at court hearings not be instantly dealt with by disciplinary means in form of penalties for an "offence against the order in court".         Finally, the Government state that there is no appearance of unfairness in the applicant's case. In particular, the applicant was warned during his questioning, inter alia by the accused's defence counsel. A medical expert present at the hearing confirmed that the applicant was capable of comprehending his situation, and the question of his blood alcohol content level was irrelevant for the finding that he had committed an "offence against the order in court".         The Commission finds that the applicant's complaints raise difficult questions of fact and of law which require an examination of the merits. The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION ADMISSIBLE,       without prejudging the merits of the case.   Deputy Secretary to the Commission           President of the Commission         (M. de Salvia)                               (C.A. Nørgaard)