CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 février 1996

.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 }          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 fi