CASE OF PUTZ v. AUSTRIA

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
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
There appeared before the Court:
Mr W. Okresek, Head of the International Affairs
Division, Constitutional Department, Federal
Mrs I. Gartner, State Counsel, Federal Ministry of
Mrs E. Bertagnoli, International Law Department,
Federal Ministry of Foreign Affairs, Advisers;
Mr C.J. Schwab, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Weitzel, Mr Schwab,
I. The circumstances of the case
6. Mr Wilhelm Putz, an Austrian national born in 1936, lives
at Bad Goisern (Upper Austria).
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
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
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
On 16 April 1991 the Wels Regional Court served that
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
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
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
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
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
"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."
14. On 20 June 1991 the applicant sent observations to the
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
"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
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
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
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
1. Keeping order in oral proceedings
"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
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
"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
"Decisions taken under Articles 233 to 235 ... shall be
enforceable immediately. No appeal shall lie against
"If the conduct referred to in the aforementioned
Articles amounts to a criminal offence, the provisions of
"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
"No judge or registrar may perform any judicial functions
in criminal proceedings if he is himself the victim of
"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
Under Article 114 para. 1 of the same Code, an appeal lies
against decisions to convert a fine into a sentence of
Preserving propriety in written proceedings
"[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."
"[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."
"1. A pecuniary penalty (Ordnungsstrafe) may not exceed
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
24. The Criminal Code contains the following rules:
2. A fixed-term custodial sentence may not be for less
than one day or more than twenty years."
"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
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
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,
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).
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
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,
2. that there has been no violation of Article 6
paras. 1 and 3 (art. 6-1, art. 6-3) of the Convention in
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
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
(b) to have adequate time and facilities for the
(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
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
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
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
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.
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
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.,
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
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
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
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
"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
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
1. Holds by seven votes to two that Article 6 (art. 6) of