CEDH · CASELAW;REPORTS;ENG — 9 avril 1997

.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 }                      EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 22541/93                 Bernhard Marte and Walter Achberger                               against                               Austria                      REPORT OF THE COMMISSION                      (adopted on 9 April 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-26) . . . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 27-45) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaints declared admissible           (para. 27). . . . . . . . . . . . . . . . . . . . .5        B.    Points at issue           (para. 28). . . . . . . . . . . . . . . . . . . . .5        C.    As regards Article 6 of the Convention           (paras. 29-34). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 34). . . . . . . . . . . . . . . . . . . . .6        D.    As regards Article 4 of Protocol No. 7 to the Convention           (paras. 35-43). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 43). . . . . . . . . . . . . . . . . . . . .7        E.    Recapitulation           (paras. 44-45). . . . . . . . . . . . . . . . . . .7   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . .8   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicants are Austrian citizens born in 1970.   The first lives in Wolfurt and the second in Lauterach.   They were represented before the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.   3.    The application is directed against Austria.   The respondent Government were represented by Mr. F. Cede, Agent of the Austrian Federal Government.   4.    The case concerns administrative criminal proceedings for public order offences, and their interaction with criminal proceedings which were also brought against the applicants.   B.    The proceedings   5.    The application was introduced on 23 August 1993 and registered on 27 August 1993.   6.    On 11 May 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government without inviting the parties, at that stage of the proceedings, to submit written observations on the admissibility and merits of the application.   7.    On 18 October 1994 the Commission (First Chamber) resumed its examination of the case and decided to request the Government whether, in the light of the Article 31 Reports adopted on 19 May 1994 in similar cases, they wished to waive the possibility of submitting observations on the admissibility and merits of the application and, if they did not, to request the parties to submit their observations on the admissibility and merits of the case.   8.    The Government submitted their observations on 1 February 1995. The applicant replied on 5 October 1995.   9.    On 17 January 1996 the Commission declared the application admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 29 January 1996 and they were invited to submit such further information or observations on the merits as they wished.   No such observations were submitted.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ           Mrs. M. HION           Mr.   R. NICOLINI   13.   The text of this Report was adopted on 9 April 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.   The Commission's decision on the admissibility of the application is annexed hereto.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   17.   On 23 August 1990 the applicants were convicted by the Feldkirch Regional Court (Landesgericht) of resisting the forces of the State. Both had confessed.   They had been accused in the charge (Strafanzeige) of 3 July 1990 of insulting policemen who had come to remove them from the bar at a summer festival ("Arschlöcher, Scheiß Bullen, Ihr könnt uns am Arsch lecken"), of attempting to pull themselves away from the policemen, and of injuring the policemen in the ensuing scuffle.   18.   Administrative criminal proceedings were brought against both applicants.   On 13 September 1990 the first applicant was fined AS 6,000 with nine days' detention in default for (i) causing a breach of the peace by conduct likely to cause annoyance, contrary to Section IX (1)(1) of the Introductory Law of the Administrative Procedure Laws, by his behaviour before the arrival of the police at the summer festival, (ii) offending public decency by insulting the policemen, contrary to Section 18 (2) of the Morals (Policing) Act (Sittenpolizeigesetz), and (iii) offending public decency, contrary to the same provision, by insulting the policemen in the presence of other persons.   19.   On the same day the second applicant was fined AS 11,000 with nine days' detention in default for (i) causing a breach of the peace by conduct likely to cause annoyance, contrary to Section IX (1)(1) of the Introductory Law of the Administrative Procedure Laws, by his behaviour before the arrival of the police at the summer festival, (ii) offending public decency by insulting the policemen, contrary to Section 18 (2) of the Morals (Policing) Act, and (iii) attacking a named policeman in the presence of other persons, contrary to Section IX (1)(1).   20.   The applicants appealed to the Vorarlberg Security Authority (Landessicherheitsdirektion) in respect of the penal orders under the Introductory Law, and to the Vorarlberg Regional Government (Landesregierung) in respect of the penal orders under the Morals (Policing) Act.   21.   The applicants' appeals to the Vorarlberg Security Authority in respect of the penal orders under the Introductory Law were dismissed on 5 August 1991 and the penal orders were confirmed.   22.   The Constitutional Court (Verfassungsgerichtshof) declined to deal with the applicants' constitutional complaints on 17 June 1992. In connection with the complaints under Article 6 of the Convention, it referred to the Austrian reservation to Article 5 of the Convention. In connection with Article 4 of Protocol No. 7, the Constitutional Court referred to the declaration made by Austria on ratifying that Protocol.   It noted that the declaration had the force of constitutional law, and found that the constitutional complaint had no reasonable prospect of success.   It also noted that the case was not excluded from the jurisdiction of the Administrative Court (Verwaltungsgerichtshof).   23.   The Administrative Court dismissed the second applicant's administrative complaint on 25 January 1993 (received by the applicants' representative on 1 March 1993).   It noted that administrative law provided that one offence should not be prosecuted twice in administrative proceedings, but continued that no provision of law excluded the prosecution of administrative offences where criminal proceedings had taken place.   The first applicant's administrative complaint was dismissed on 22 March 1993 (received by the applicants' representative on 29 April 1993).   The Administrative Court referred to its decision of 25 January 1993.                                * * *   24.   The applicants' appeals to the Vorarlberg Regional Government in respect of the offence under the Morals (Policing) Act were largely dismissed on 13 and 11 June 1991.   The fines imposed were reduced slightly.   25.   The applicants' constitutional complaints against the decisions of the Vorarlberg Regional Government were included in the Constitutional Court's decision of 17 June 1992 not to deal with the constitutional complaints.   26.   The Administrative Court dismissed the second applicant's administrative complaints on 22 February 1993 (received by the applicants' representative on 17 March 1993).   It again noted that administrative law provided that one offence should not be prosecuted twice in administrative proceedings, but continued that no provision of law excluded the prosecution of administrative offences where criminal proceedings had taken place.   It considered that the provisions of Section 18 of the Morals (Policing) Act called for a different judgment of human behaviour from Articles 115 (insult: Beleidigung) or 267 (resisting the forces of the State: Widerstand gegen die Staatsgewalt) of the Criminal Code (Strafgesetzbuch), so that the principle of the separation of powers had not been breached.   The first applicant's administrative complaint was dismissed on 22 March 1993 (received by the applicants' representative on 29 March 1993).   The Administrative Court referred to its decision of 22 February 1993.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   27.   The Commission has declared admissible the applicants' complaints concerning the review of the administrative decisions by the Constitutional and Administrative Courts, and the complaints that the applicants were convicted twice in respect of the same behaviour.   B.    Points at issue   28.   The points at issue in the present case are as follows:   -     whether there has been a violation of Article 6 para. 1      (Art. 6-1) of the Convention;   -     whether there has been a violation of Article 4 of Protocol No. 7      (P7-4) to the Convention.   C.    As regards Article 6 (Art. 6) of the Convention   29.   Article 6 (Art. 6) of the Convention provides, so far as      relevant, as follows:        "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 ... "   30.   The applicants claim that they did not have the benefit of a "tribunal" in the administrative criminal proceedings against them.   31.   The Government do not contest the merits of the application to the extent that it is on all fours with the case of Gradinger (Eur. Court HR, Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C).   32.   The Commission recalls that in a series of judgments (Eur. Court HR, Schmautzer v. Austria, Umlauft v. Austria and Gradinger v. Austria judgments of 23 October 1995, Series A no. 328-A, 328-B and 328-C, and Pramstaller v. Austria, Palaoro v. Austria and Pfarrmeier v. Austria, Series A no. 329-A, 329-B and 329-C), the European Court of Human Rights found that the proceedings determined a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, that the Austrian reservation to Article 5 (Art. 5) did not apply to the criminal administrative proceedings at issue, and that neither the Constitutional Court (Verfassungsgerichtshof) nor the Administrative Court (Verwaltungsgerichtshof) had the "full jurisdiction" required by Article 6 (Art. 6) in criminal cases.   33.   In the present case, too, the administrative criminal proceedings were considered by the Constitutional Court and the Administrative Court, and those courts had the same jurisdiction as they had in the cases of Schmautzer and others.        CONCLUSION   34.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.    As regards Article 4 of Protocol No. 7 (P7-4) to the Convention   35.   Article 4 of Protocol No. 7 (P7-4) reads, so far as relevant, as follows:        "1.   No one shall be liable to be tried or punished again      in criminal proceedings under the jurisdiction of the same      State for an offence for which he has already been finally      acquitted or convicted in accordance with the law and penal      procedure of that State."   36.   The applicants claim that they were convicted first in ordinary criminal proceedings and then in administrative criminal proceedings in respect of substantially the same behaviour.   37.   The Government do not contest the merits of the application to the extent that it is on all fours with the case of Gradinger (Eur. Court HR, Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C).   They note, however, that while the proceedings under the Introductory Act were concerned with a disturbance of public order, those under the Morals (Policing) Act referred to an outrage upon public decency.   They consider that disturbing order in a public place is not the same as an outrage on public decency.   38.   The Commission recalls that in the above-mentioned Gradinger judgment the European Court of Human Rights found (at p. 65, para. 51) that the Austrian declaration to Article 4 of Protocol No. 7 (P7-4) did not comply with the requirements of Article 64 (Art. 64) of the Convention.   The same applies in the present case.   39.   In the above-mentioned Gradinger case, the Court was aware (at p. 66, para. 55) that "the provisions in question differ not only as regards the designation of the offences but also, more importantly, as regards their nature and purpose.   It further [observed] that the offence provided for in Section 5 of the Road Traffic Act represents only one aspect of the offence ... under Article 81 para. 2 of the Criminal Code.   Nevertheless, both impugned decisions were based on the same conduct.   Accordingly, there has been a breach of Article 4 of Protocol No. 7 (P7-4)."   40.   The Commission recalls that in Gradinger the criminal and administrative authorities made contradictory findings on one particular factual element, namely the amount of alcohol in the applicant's blood. In the present case, it is not as clear as in that case that the facts in the respective proceedings were identical.   The applicants in the present case were convicted by the Feldkirch Regional Court of resisting the forces of the State.   The factual basis for the criminal convictions was insulting policemen who had come to remove them from the bar at a summer festival, attempting to pull themselves away from the policemen, and injuring the policemen in the ensuing scuffle.   41.   The factual basis of the first applicant's administrative convictions was his behaviour before the arrival of the police at the festival, and insulting the policemen when they arrived.   The factual basis for the second applicant's administrative convictions was his behaviour before the arrival of the police, and attacking a policeman.   42.   The Commission finds, and neither the findings of the Administrative Court nor the pleadings of the Government contest this finding, that the factual bases for the applicants' criminal and administrative convictions overlapped to such an extent that in the second proceedings they were "tried or punished again ... for an offence for which [they had] already been finally ... convicted" in Austria.   As in the case of Gradinger, the fact that the nature and purpose of the offences is different cannot affect the position.        CONCLUSION   43.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 4 of Protocol No. 7 (P7-4) to the Convention.   E.    Recapitulation   44.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 34).   45.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 4 of Protocol No. 7 (P7-4) to the Convention (para. 43).        M.F. BUQUICCHIO                          J. LIDDY         Secretary                             President    to the First Chamber                  of the First Chamber