CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 avril 1994

.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. 20517/92                     by C. and E. F.                     against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 13 April 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             Mrs. M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 6 August 1992 by C. and E. F. against Austria and registered on 21 August 1992 under file No. 20517/92;        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 applicants, born in 1933 and 1955, respectively, are German citizens, residing in Güglingen, Germany. In the proceedings before the Commission, they are represented by Mr. A. Haslinger, a lawyer practising in Linz.   A.    Particular circumstances of the case        In 1989 the applicants, joint owners of a piece of land in Upper Austria, filed an application with the Windischgarsten District Court (Bezirksgericht) for the rectification of their land's frontier. This application was dismissed on 7 August 1991.        On 23 August 1991 the applicants, represented by counsel, lodged an appeal (Rekurs) with the Steyr Regional Court (Kreisgericht). Their counsel especially challenged the assessment of the facts in the District Court's decision and complained of an alleged bias of the District Court towards the applicants.        On 23 September 1991 the Steyr Regional Court dismissed the applicants' appeal. Furthermore, referring to S. 85 para. 1 of the Court Organisation Act (Gerichtsorganisationsgesetz), the Regional Court imposed a fine of 10,000 AS upon them.        The Regional Court found that the written appeal contained various passages alleging that the District Court's establishment of the facts and its conclusions were obviously wrong and resulted from bias to the advantage of the defendant, e.g. that the District Court had acted "with the obvious intention to help the arguments of the defendant on the road to success" ("bei der unverkennbaren Absicht ... dem Rechtsstandpunkt der Antragsgegnerin zum Durchbruch zu verhelfen");   that the District Court's obviously wrong findings and deliberate disregard of some evidence before it proved "the incomprehensible and arbitrary partiality towards the defendant"   ("die völlig unverständ-liche und sachlich nicht gerechtfertigte Einseitigkeit ... zugunsten der Antragsgegnerin").        The Regional Court found that these remarks contained in the written submissions upon appeal, filed by the applicant's counsel were of an insulting nature and amounted to an offence within the meaning of S. 85 para. 1 of the Court Organisation Act. The Court further considered that, while the submissions upon appeal had been filed by the applicants' counsel, the contents thereof must have been known to and approved by the applicants. It regarded a fine of 10,000 ATS as appropriate with regard to the serious nature of these insults and the applicants' financial situation.        On 9 October 1991 the applicants lodged an appeal on points of law (Revisionsrekurs) with the Austrian Supreme Court (Oberster Gerichtshof) against the Regional Court's decision dismissing their appeal in the main proceedings. They further filed an appeal (Rekurs) against the penalty imposed under S. 85 of the Court Organisation Act, complaining in particular about the lack of an oral hearing and, thus, an opportunity to challenge the Regional Court's assertions, inter alia, as to their prior consent to these remarks.        On 23 March 1992 the Steyr Regional Court decided not to forward the applicants' remedies to the Supreme Court on the ground that they were inadmissible. The Regional Court considered that the Supreme Court could only decide upon an appeal against a penalty imposed under S. 85 of the Court Organisation Act, if it could be seized with an appeal in the main case. However, in the applicants' case, there was no further appeal against the appellate court's decision on the main issue of the rectification of their land's frontier. Thus the Supreme Court did not have competence to deal with their appeal against the penalty imposed upon them.        On 21 May 1992 the Supreme Court dismissed the applicants' appeal (Rekurs) against the decision of the Regional Court of 23 March 1992. The Supreme Court held that the decision in the main proceedings was already final and, thus, no appeal could be filed against any of the Regional Court's decisions concerning the conduct of the proceedings.   B.    Relevant domestic law        According to S. 85 para. 1 of the Court Organisation Act (Gerichtsorganisationsgesetz), a penalty (Ordnungsstrafe) within the meaning of S. 220 of the Code of Civil Procedure (Zivilprozeßordnung), i.e. not exceeding the amount of 20,000 AS, may be imposed upon 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.    There is, in principle, an appeal to the higher court in accordance with the provision of the Code of Civil Procedure (Zivilprozeßordnung). S. 220 para. 3 of the Code of Civil Procedure further provides that, in case of default of payment, the fine may be converted into a term of imprisonment. The period of imprisonment is to be fixed by the court having imposed the fine, and may not exceed ten days.     COMPLAINTS   1.    The applicants complain under Article 6 of the Convention that they did not have a fair hearing by an impartial tribunal, and could not exercise their defence rights, in respect of the Regional Court's decision of 23 September 1991, imposing upon them a penalty under S. 85 para. 1 of the Court Organisation Act.     2.    They further consider that, taking into account the contents of their counsel's submissions on appeal, the imposition of the above-mentioned penalty violated their right of freedom of expression under Article 10 of the Convention.     THE LAW   1.    The applicants complain under Article 6 (Art. 6) of the Convention that they did not have a fair hearing as regards the Steyr Regional Court's decision imposing upon them, in respect of insulting submissions contained in their appeal, a fine of 10,000 AS.        In order to determine whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable to this procedure under its criminal "head", regard must be had to the relevant criteria established in the case-law, namely the classification of the offence under domestic law, the very nature of the offence and the nature and the degree of severity of the penalty which may be incurred (see, Eur. Court H.R., Weber judgment of 22 May 1990, Series A no. 177, pp. 17-18, paras. 30-34; Ravnsborg judgment of 23 March 1994, para. 30, to be published in Series A no. 283-B).          The fine was imposed upon the applicants under S. 220 of the Code of Civil Procedure and S. 85 of the Court Organisation Act relating to offences against the order in court. According to the Austrian legal system, such offences do not belong to criminal law.        Moreover, as regards the nature of the offence in question, such measures ordered by courts under rules aimed at ensuring the proper and orderly functioning of its own proceedings are more akin to the exercise of disciplinary powers than to the imposition of a punishment of a criminal offence (see, Eur. Court H.R., Ravnsborg v. Sweden judgment of 23 March 1994, para. 34, to be published in Series A no. 283-B). The Commission therefore considers that the kind of proscribed conduct for which the applicants were fined in principle falls outside the ambit of Article 6 (Art. 6).        Furthermore, with regard to the third criterion, the nature and degree of severity of the penalty, the Commission notes that the fine which may be imposed under S. 220 of the Code of Civil Procedure only could amount to 20.000 AS. Furthermore, the court having imposed the fine may only exceptionally, in case of default of payment, decide to convert it into a term of imprisonment not exceeding 10 days. The Commission therefore considers that the penalty at stake for the applicant was not sufficiently important to warrant classifying the offences as "criminal".        Consequently, Article 6 (Art. 6) of the Convention did not apply to the proceedings in question.        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 applicants further complain under Article 10 (Art. 10) of the Convention about an alleged restriction of their right to freedom of expression.        In this respect, the Commission finds that the interference complained of was justified under Article 10 para. 2 (Art. 10-2) of the Convention. In particular, the Regional Court's decision imposing a fine upon the applicants for an offence against the order in court was prescribed by law and necessary in a democratic society for the protection of the rights of others and for maintaining the authority of the judiciary.        It follows this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission unanimously        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)