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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ADOLF v. AUSTRIA - 8269/78 [1982] ECHR 2 (26 March 1982)
URL: http://www.bailii.org/eu/cases/ECHR/1982/2.html
Cite as: [1982] ECHR 2, (1982) 4 EHRR 313
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In the Adolf case,
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 the Rules of Court, as a Chamber composed of the
following judges:
Mr. G. WIARDA, President,
Mr. J. CREMONA,
Mr. L. LIESCH,
Mr. F. MATSCHER,
Mr. L.-E. PETTITI,
Mr. B. WALSH,
Sir Vincent EVANS,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 25 November 1981 and on 22 and
24 February 1982,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The Adolf case was referred to the Court by the European
Commission of Human Rights ("the Commission") and the Government
of the Republic of Austria ("the Government"). The case originated
in an application against this State lodged with the Comission on
7 June 1978 under Article 25 (art. 25) of the Convention by an
Austrian citizen, Mr. Gustav Adolf.
2. The Commission's request and the Government's application were
lodged with the registry of the Court, within the period of three
months laid down in Articles 32 par. 1 and 47 (art. 32-1, art. 47), on
18 December 1980 and 23 January 1981 respectively. The request refers
to Articles 44 and 48 (art. 44, art. 48) and to the declaration by the
Republic of Austria recognising the Court's compulsory jurisdiction
(Article 46) (art. 46), while the application refers to Article 48
(art. 48). Their purpose is to obtain a decision as to whether or not
the facts of the case disclose a breach by the respondent State of its
obligations under Article 6 par. 1, 2 and 3 (d) (art. 6-1, art. 6-2,
art. 6-3-d) of the Convention; the Government's application asks
the Court in particular to find that there has been no such breach
in this case.
3. The Chamber of seven judges to be constituted included, as ex
officio members, Mr. F. Matscher, the elected judge of Austrian
nationality (Article 43 of the Convention) (art. 43), and
Mr. G. Wiarda, the President of the Court (Rule 21 par. 3 (d) of the
Rules of Court). On 31 January 1981 in the presence of the Registrar,
the President drew by lot the names of the five other members, namely
Mr. J. Cremona, Mr. G. Lagergren, Mr. L. Liesch, Mr. B. Walsh and
Sir Vincent Evans (Article 43 in fine of the Convention and
Rule 21 par. 4 of the Rules of Court) (art. 43). Subsequently,
Mr. Lagergren, who was unable to attend, was replaced by the first
substitute judge, Mr. L.-E. Pettiti (Rules 22 and 24 par. 1).
4. Mr. Wiarda assumed the office of President of the Chamber
(Rule 21 par. 5). He ascertained, through the Registrar, the views of
the Agent of the Government and of the Delegate of the Commission
regarding the procedure to be followed. On 3 February, he decided
that the Agent should have until 15 April 1981 to file a memorial and
that the Delegate should be entitled to file a memorial in reply
within two months from the date of the transmission of the
Government's memorial to him by the Registrar.
The Government's memorial was received at the registry on 14 April.
On 11 June, the Secretary to the Commission advised the Registrar
that the Delegate would submit his observations at the hearings, and
forwarded to him the observations of the applicant's lawyer on the
Government's memorial.
5. After consulting, through the Deputy Registrar, the Agent of the
Government and the Delegate of the Commission, the President
directed on 23 July that the oral hearings should open on
24 November 1981.
6. On 9 October, the Government produced a document to the Court.
7. The oral hearings took place in public at the Human Rights
Building, Strasbourg, on 24 November. Immediately before their
opening, the Court had held a preparatory meeting at which it had
authorised the person assisting the Delegate of the Commission to
address the Court in German (Rule 27 par. 3).
There appeared before the Court:
- for the Government:
Mr. K. HERNDL, Ambassador, Ministry
or Foreign Affairs, Agent,
Mr. R. LINKE, Advocate-General, Ministry of Justice,
Mr. W. OKRESEK, Oberrat, Federal Chancellery,
Constitutional Department, Advisers;
- for the Commission:
Mr. M. MELCHIOR, Delegate,
Mr. L. HOFFMANN, the applicant's lawyer before the Commission,
assisting the Delegate (Rule 29 par. 1, second sentence, of the
Rules of Court).
The Court heard addresses by Mr. Herndl, Mr. Linke and Mr. Okresek
for the Government and by Mr. Melchior and Mr. Hoffmann for the
Commission, as well as their replies to questions put by the Court.
Those appearing before the Court filed several documents during the
hearings.
8. On 15 December, acting on the instructions of the President, the
Registrar asked the Agent of the Government to produce two
documents; those documents were received at the registry on
5 January 1982.
AS TO THE FACTS
1. The particular circumstances of the case
9. The applicant, an Austrian citizen born in 1918, lives in
Innsbruck where he practises the profession of accountant and
financial consultant (Wirtschaftsprüfer und Steuerberater).
10. On 15 July 1977, an 85-year-old woman, Mrs. Irmgard Proxauf,
acting through a lawyer, reported to the Innsbruck public
prosecutor's office that three days earlier during a quarrel
Mr. Adolf had thrown at another person, Mrs. Anneliese Schuh, a
bunch of keys which had then struck her (Mrs. Proxauf), causing her
injury. In her letter headed "request to inquire into a set of facts",
she called on the prosecutor's office to take criminal proceedings
against the applicant and stated that she would be a civil party
claiming damages in any such proceedings (Privatbeteiligte).
11. The federal police at Innsbruck, instructed on 12 August by the
public prosecutor's office to investigate whether or not a
punishable act had been committed, interrogated several persons
cited by Mrs. Proxauf at witnesses and, on 22 September, the
applicant himself. He denied the facts alleged against him and
denounced the complaint as being knowingly false. After pointing out
that the object alleged to have caused the injury was, in fact, an
envelope containing a single key, he asserted, amongst other things,
that he had not thrown it: he had wanted to give it back to
Mrs. Proxauf, but it had slipped out of his hand and touched her arm.
Mrs. Schuh, he said, had picked it up and thrown it, just above his
head, over a distance of thirteen metres in the direction of his
house. Mr. Adolf's wife and two employees had written a note setting
out what they remembered of the incident. This note, he stated was
available to the court, as an item for inclusion in the case-file.
The police accepted the note, but did not question Mrs. Adolf or the
employees.
On 28 September, the public prosecutor's office, to which the file had
been returned, asked the Innsbruck District Court (Bezirksgericht) to
procure a medical report on the seriousness of Mrs. Proxauf's injury.
The Court registered the case on 4 October 1977; under the heading
"punishable act" it specified "section 83 of the Penal Code", which is
a provision, amongst others, dealing with the infliction of bodily
harm.
Following receipt of the doctor's opinion, the District Court
assessed the costs of that opinion on 11 November 1977. The district
prosecutor (Bezirksanwalt) requested the District Court on
21 November to "decide that the conditions of section 42 of the Penal
Code [were] fulfilled" (see paragraph 22 below). The Court acceded
to the request on 24 November by inserting in the file a note worded
as follows: "B" (Beschluss, decision): "... the proceedings are
closed pursuant to section 451 par. 2 of the Code of Criminal
Procedure"; in addition, it added to the register, under the
heading "date and manner ... of disposal of the matter"
(Erledigung): "24. 11. Section 451 par. 2 of the Code of Criminal
Procedure".
12. On 3 December, an application was made to the District Court by
Mr. Adolf who, after consultation of the file on his case, had come
to learn on 22 November of the submissions made by the public
prosecutor's office on the previous day; however, like that office,
he was not aware of the decision of 24 November. He denied that he
had injured Mrs. Proxauf, whether by throwing a bunch of keys or
otherwise, and contested the doctor's findings, claiming in
particular that the latter had based his opinion on information that
was contradicted by the material in the case-file (aktenwidrig). He
called on the District Court either to acquit him after trial or to
terminate the proceedings pursuant to section 90 par. 1 of the Code
of Criminal Procedure (see paragraph 21 below). He requested that,
if the District Court should choose the first alternative, fresh
medical evidence be taken forthwith.
On 22 December, the District Court notified an associate of the
applicant's lawyer that the proceedings had been terminated - on an
unspecified date - in pursuance of section 451 2 the Code of
Criminal Procedure. Following a request made by Mr. Adolf on
4 January 1978, the Court served on him on 24 January a decision dated
10 January which reads as follows (translation from German):
"Decision
In the criminal case (Strafsache) against Dr. Gustav Adolf for the
offence of inflicting bodily harm, within the meaning of section 83
of the Penal Code, the District Court of Innsbruck has decided as
follows upon the request of the public prosecutor:
The conditions of section 42 of the Penal Code are met; the
proceedings are terminated in accordance with section 451 par. 2 of
the Code of Criminal Procedure.
Reasons
By letter of 15 July 1977, the civil party Irma Proxauf informed the
public prosecutor of an incident involving herself and the accused
(Beschuldigter) which had happened on 12 July 1977. She alleged
that the accused had caused her an injury, namely a bruise on her left
arm and another below her left breast, with a bunch of keys. The
investigations made thereupon and the expert opinion have shown
(ergeben) that in the course of a quarrel the accused flew into a
rage and threw an envelope containing a key in the direction of
Mrs. Anneliese Schuh who however managed to avoid the missile, while
the 85-year-old Irma Proxauf standing behind her was hit. The key
first struck the back of the right hand, causing a superficial
abrasion, and then bounced against the left side of the above-named
person's chest. No injury could be established on the chest.
The injury found (festgestellte) is insignificant (geringfügig) as it
does not exceed the three-day limit; the fault (Verschulden) of the
accused may be described as insignificant (geringfügig), and his
character gives cause to expect that he will conduct himself
properly in future.
Therefore the conditions of section 42 of the Penal Code are met,
justifying the above decision.
District Court of Innsbruck,
Section 9, 10 January 1978."
13. The applicant challenged this decision before the Regional Court
(Landesgericht) of Innsbruck which, on 23 February 1978, declared
the appeal (Beschwerde) inadmissible on the ground that
section 451 par. 2 of the Code of Criminal Procedure limited
the right of appeal to the prosecutor (Ankläger).
14. On 25 January 1980, a little more than six months after the
European Commission of Human Rights had accepted the application,
the Generalprokurator (the public prosecutor attached to the Supreme
Court (Oberster Gerichtshof) filed, with the Supreme Court, pursuant
to section 33 par. 2 of the Code of Criminal Procedure, an
application for annulment of the decision dated 10 January 1978 in
the interests of the proper application of the law
(Nichtigkeitsbeschwerde zur Wahrung des Gesetzes).
The Generalprokurator drew a distinction between the termination of
proceedings by virtue of section 451 par. 2 and their termination by
virtue of section 90 par. 1 of the Code of Criminal Procedure. The
former provision applied when, prior to the trial hearing, the court
was satisfied that the conditions of section 42 of the Penal Code
were met; where, however, no sufficient grounds existed for
continuing with the prosecution, the public prosecutor should close
the file (zurücklegen) on the complaint and the investigating judge
should bring the proceeding to an end in accordance with the general
rules laid down in section 90 par. 1 and 447 par. 1. In both cases,
he said, the decisions would be taken without the formal hearing of
evidence (Beweisverfahren), something which, as followed in any
event from Article 6 par. 1 (art. 6-1) of the Convention
- Article 6 par. 1 (art. 6-1) being a provision that has
constitutional status in Austrian law -, should in principle precede
any finding of guilt (Schulderkenntnis).
Thus, in the submission of the Generalprokurator, section 42 of the
Penal Code was not appropriate where, on the basis of the complaint
or the preliminary enquiries, no offence could be established on the
facts or existed in law. On the other hand, for section 42 to apply
it was not essential for there to be proof of guilt, but merely a
suspicion (Tatverdacht) such as would warrant the opening of
preliminary enquiries or an application seeking the imposition of a
penalty. A court decision terminating proceedings in accordance with
section 42 could therefore only be grounded on a "suspected state
of affairs" (Verdachtslage) as disclosed by the case-file: the
court had to limit itself to ascertaining whether there existed
against the suspect sufficient suspicion for proceeding with the
prosecution and whether, on the hypothetical assumption that the
suspect had indeed committed the alleged offence, he was or was not
entitled to benefit from the ground for exoneration
(Strafausschliessungsgrund) provided for under section 42 of the
Penal Code. It seemed inadmissible to state in the reasons for such
a decision conclusions on the objective and subjective aspects of
the act and to take it as proved against the suspect that he had
engaged in a certain course of conduct constituting a punishable
act. Such an assertion in the reasons for a decision terminating
proceedings amounted to a finding of guilt without any formal taking
of evidence at a public hearing, which would be in violation of
Article 6 par. 2 (art. 6-2) of the Convention.
In the instant case, said the Generalprokurator, the District Court
had clearly indicated that it accepted the account of the incident
given by Mrs. Proxauf and corroborated by the police investigations
and by the medical evidence, and that it disbelieved the applicant's
denials which were mainly concerned with what had happened during
the incident (Tathergang). He submitted that as the decision in
issue was not capable of causing Mr. Adolf any direct prejudice, a
finding that it had infringed the law would be sufficient. The
Generalprokurator therefore moved the Supreme Court to hold that the
Innsbruck District Court's decision dated 10 January 1978 was, as
regards its reasoning, contrary to the law, that is to say
section 451 par. 2 of the Code of Criminal Procedure read in
conjunction with Article 6 par. 1 and 2 (art. 6-1, art. 6-2) of the
Convention.
15. On 24 February 1980, Mr. Adolf submitted to the Supreme Court
certain observations on the application for annulment. Whilst
welcoming the initiative taken by the Generalprokurator, he considered
that the latter had disregarded essential elements of violation of the
law inherent in the impugned decision. In particular, he disputed the
interpretation given by the Generalprokurator to section 42 of the
Penal Code; in the applicant's view, this section in fact required the
court to make a positive finding of an act fulfilling the description
of a criminal offence. He relied on section 451 par. 2 of the Code of
Criminal Procedure which places the judge under a duty to satisfy
himself, before bringing the proceedings to a close, that the
conditions stipulated under section 42 of the Penal Code are met; in
order to do this, so the applicant contended, the judge must have
regard to all the evidence adduced and not simply to the evidence
supporting the suspicion.
Mr. Adolf criticised the District Court for having failed to take into
consideration evidence in his favour, for having declined to hear
witnesses requested by him and for not having given him the
opportunity to challenge the expert medical opinion; he alleged a
breach of Article 6 par. 1 and 3 (d) (art. 6-1, art. 6-3-d)
of the Convention. He accordingly called on the Supreme Court to find
infringements of the law other than those pleaded by the
Generalprokurator and to order that the proceedings be terminated
under section 451 par. 1 of the Code of Criminal Procedure.
16. The Supreme Court rejected the application for annulment on
28 February 1980.
In the opinion of the Supreme Court, the application of
section 42 par. 1 of the Penal Code did not place the suspect in a
worse position than where the case is closed for some other reason
(for example, in pursuance of section 90 par. 1 of the Code of
Criminal Procedure), that is to say, a closure of the case which, in
general, does not involve establishing the innocence of the person
concerned. Section 42 is not at all meant to be used to terminate
proceedings when it is certain that an offence cannot be proved on the
facts or does not exist in law. On the other hand, section 42 does
not demand verification of the objective and subjective elements of
the offence; indeed, this would be contrary to the main object of the
section, namely procedural economy (Prozessökonomie - the principle
that the court's time should be usefully employed). The person
concerned thus has no right to have doubtful issues in the case
clarified.
Section 42 simply requires the existence of a suspicion. Even if a
court describes the suspect's conduct in terms of findings of fact,
any statements to this effect could not be regarded as judicial
findings (Konstatierungen), within the meaning of section 270 par. 2,
no. 5, of the Code of Criminal Procedure, with the attendant legal
consequences. In point of fact, by reason of its basic legal
character, any decision taken in pursuance of section 42 of the Penal
Code can only be understood in one way: further clarification of, and
possible prosecution in, a case which is already recognisable as being
a trifling matter is to be avoided, not least in the interests of
procedural economy. Howsoever the reasons given therefor may be
worded, any such decision contains - if only because of its very
nature - a negative ruling on the merits of the case and does not at
all amount to a declaration, equivalent to a finding of guilt, that
the suspect has (unlawfully and with criminal intent) committed a
punishable act.
It would certainly have been preferable had the Innsbruck District
Court stated this explicitly and without ambiguity in the decision
being challenged. Nonetheless, the more or less apposite choice of
wording in the reasoning could not deprive the reasoning of the
specific significance it had as a result of the nature of the
decision given and could not, therefore, in any way adversely affect
the person concerned.
Since legal proof of the suspect's guilt is not the object pursued
under section 42 of the Penal Code, no question arises as to the
extent to which a decision given in pursuance of this provision has
or has not been preceded by proceedings complying with the
requirements of Article 6 par. 1 (art. 6-1) of the Convention.
17. The judgment of the Supreme Court was reproduced in an Austrian
legal journal but the applicant's identity was not revealed. The
accompanying commentary on the judgment referred to an article
entitled "A trivial affair leads to an application against
Austria" ("Aus Bagatellsache wurde Klage gegen Österreich"),
which had been published in a newspaper in May 1980 and which did
disclose his name, profession and place of residence.
The professional association to which Mr. Adolf belongs has not
instituted any disciplinary proceedings against him in respect of the
facts underlying Mrs. Proxauf's complaint.
According to Mr. Adolf, the file on his case, including the
Innsbruck District Court's decision dated 10 January 1978, has been
produced in evidence in a civil action between himself and
Mrs. Proxauf in the matter of an easement (Dienstbarkeit); an order
issued by the competent civil court in Innsbruck took the case-file
into consideration.
18. The costs of the procedure, and notably the costs of the medical
opinion, were borne by the State. The applicant himself had to pay
his lawyer's fees and his own expenses.
2. The relevant legislation
19. In Austria, the public prosecutor (Staatsanwalt) is required by
law to inquire into the correctness of any report (Anzeige) of an
offence for which a prosecution must be brought as a matter of
course (section 87 par. 1 of the Code of Criminal Procedure). He is
obliged, as a matter of course, to prosecute in respect of any
offence which appears to him to have been committed and where it is
not a precondition of investigation and punishment that an
application be made by the victim or some other person concerned; it
is his duty to cause the competent court to take the necessary
measures of investigation and punishment (section 34 par. 1).
In order to procure the necessary evidence for the institution of
criminal proceedings or for the closing of the file (Zurücklegung) on
a complaint, the public prosecutor may have preliminary enquiries
(Vorerhebungen) carried out by the investigating judge, the district
courts and the police authorities (section 88 par. 1).
20. Where the public prosecutor is satisfied that there are
sufficient grounds for bringing a criminal prosecution, he shall
either apply for the institution of a preliminary investigation
(Voruntersuchung) or file a formal accusation (Anklageschrift,
section 90 par. 1). However, in district court proceedings there is
no formal process of investigation and no special procedure of
accusation: all that is required is a written or oral application
from the district prosecutor seeking the imposition of a penalty on
the person concerned (Antrag auf gesetzliche Bestrafung,
section 451 par. 1).
21. Where sufficient grounds for prosecuting the individual in
question are lacking, the public prosecutor shall take no further
action on the complaint and shall transmit the file to the
investigating judge, together with a statement to the effect that he
sees no reason to continue with the prosecution; the judge must then
terminate the preliminary enquiries (section 90 par. 1). This
provision applies, mutatis mutandis, to district court proceedings
(section 447 par. 1).
Under the terms of section 90 par. 2 of the Code of Criminal
Procedure, the public prosecutor may alternatively ask the
investigating judge to hold that the conditions of section 42 of the
Penal Code are met. In cases before a district court, the decision
terminating proceedings is governed by section 451 par. 2 of the
Code of Criminal Procedure, which provides (translation from
German):
"If the court is satisfied that the conditions laid down in
section 42 are met, it shall terminate the proceedings by a decision.
The public prosecutor may lodge an appeal against any such decision
..."
22. Section 42 of the Penal Code reads as follows (translation from
German):
"(1) Where an act requiring public prosecution as a matter of
course involves liability to no more than a fine, a custodial
sentence not exceeding one year or both, the act shall not be
punishable (strafbar) if
1. the guilt (Schuld) of the author of the act is slight (gering);
2. the act has had no or only trifling consequences, and if addition
3. punishment is not necessary in order to deter the author of the
act or other persons from committing criminal offences.
(2) The decision whether or not the conditions of paragraph (1)
hereof are met shall be taken by the court; where the court decides
in the affirmative, it shall bring the proceedings to a close no
matter what stage they may have reached."
Section 42 was introduced into the new Austrian Penal Code which
entered into force on 1 January 1975, and is aimed at avoiding
criminal trials in trivial cases, notably for reasons of procedural
economy; the section is headed "acts not meriting punishment"
("mangelnde Strafwürdigkeit der Tat"). The Supreme Court and the
great majority of legal commentators regard it as a clause which is
not concerned with mere procedure but which provides a substantive
ground for exonerating the accused (sachlicher
Strafausschliessungsgrund).
23. A decision taken by a court in pursuance of section 42 to
terminate proceedings is not entered in the criminal record of the
person concerned. The file relating to a case closed in this manner
may be used in other legal (and disciplinary) proceedings, as may,
in principle, the case-file in any legal action whatever its
outcome.
According to Mr. Adolf, anyone may go to the court and consult the
register of cases and the register of names and, at least as far as
the former is concerned, ask for an extract. The Government
contested these assertions, save apparently as regards the
possibility of having access to the register of names. The latter
simply contains a reference to the register of cases without giving
any indication as to the nature of the litigation.
24. As a result of the present case, two circulars were issued on
15 January 1979 and 24 March 1980 by the relevant Austrian authorities
drawing the attention of the courts to the problems raised by the
application of section 42 of the Penal Code and to the need for a
careful wording of the relevant decisions (see paragraphs 33 and 34
of the report of the Commission).
PROCEEDINGS BEFORE THE COMMISSION
25. In his application of 7 June 1978 to the Commission (no. 8269/78),
Mr. Adolf complained of the Innsbruck District Court's decision dated
10 January 1978. He claimed that this decision was contrary to
Article 6 par. 2 (art. 6-2) of the Convention as it contained findings
both on the facts of the alleged offence and on his guilt. In his
submission, since such findings were required by the very terms of
section 42 of the Penal Code, the legislation itself was inconsistent
with Article 6 par. 2 (art. 6-2). He further alleged violation of the
rights guaranteed by Article 6 par. 1 and 3 (d) (art. 6-1, art. 6-3-d)
in that, notwithstanding his denial of the accusations made against
him and his request for the hearing of witnesses in his favour, the
District Court took its decision without holding a trial hearing and
without proper inquiry into the evidence.
26. The Commission accepted the application on 6 July 1979.
In its report of 8 October 1980 (Article 31 of the Convention)
(art. 31), the Commission expressed the opinion that there had been
breach of paragraph 2 of Article 6 (art. 6-2) (nine votes to six,
with one abstention), but no breach of paragraph 1 or paragraph 3 (d)
(art. 6-1, art. 6-3-d) (twelve votes to three, with one
abstention).
The report contains three dissenting opinions.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
27. In their memorial, the Government requested the Court
"to hold that in the present case the provisions of paragraphs 1, 2 and
3 (d) of Article 6 (art. 6-1, art. 6-2, art. 6-3-d) of the Convention
were not violated and that, as a consequence, the facts underlying the
dispute do not indicate any breach by the Republic of Austria of its
obligations under the Convention".
At the close of the hearings held on 24 November 1981, the Agent of
the Government made "a final submission and a formal motion, namely
that the Court, when considering this matter, come to the conclusion
that, in the present case, there was no violation of the European
Convention on Human Rights and Fundamental Freedoms in all three
aspects which have been mentioned".
AS TO THE LAW
28. The applicant claimed to be the victim of a breach of
paragraphs 1, 2 and 3 (d) of Article 6 (art. 6-1, art. 6-2,
art. 6-3-d) which provide as follows:
"1. In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by a ...
tribunal ...
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following
minimum rights:
...
(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 the submission of Mr. Adolf, this breach resulted from the
Innsbruck District Court's decision dated 10 January 1978, from the
earlier procedure and also from section 42 of the Austrian Penal
Code itself.
1. The applicability of Article 6 (art. 6)
29. The Government's principal submission was that Article 6
(art. 6) was not applicable in the present case since no criminal
charge existed at any time or, at least, at the time when the decision
at issue was rendered. This view was not shared by the Commission and
was contested by the applicant.
30. The Court thus has to ascertain whether there was a "criminal
charge" ("accusation en matière pénale", Article 6 par. 1 (art. 6-1))
against Mr. Adolf or whether he was "charged with a criminal
offence" ("accusé d'une infraction" and "accusé", Article 6
par. 2 and 3) (art. 6-2, art 6-3).
These expressions are to be interpreted as having an "autonomous"
meaning in the context of the Convention and not on the basis of
their meaning in domestic law (see notably, mutatis mutandis, the
Deweer judgment of 27 February 1980, Series A no. 35, p. 22,
par. 42). The legislation of the State concerned is certainly relevant,
but it provides no more than a starting point in ascertaining
whether at any time there was a "criminal charge" against
Mr. Adolf or he was "charged with a criminal offence" (see, mutatis
mutandis, the Engel and others judgment of 8 June 1976, Series A
no. 22, p. 35, par. 82, and the König judgment of 28 June 1978, Series A
no. 27, p. 30, par. 89). The prominent place held in a democratic
society by the right to a fair trial favours a "substantive",
rather than a "formal", conception of the "charge" referred to
by Article 6 (art. 6); it impels the Court to look behind the
appearances and examine the realities of the procedure in question in
order to determine whether there has been a "charge" within the
meaning of Article 6 (art. 6) (see the above-mentioned Deweer
judgment, p. 23, par. 44).
In particular, the applicant's situation under the domestic legal
rules in force has to be examined in the light of the object and
purpose of Article 6 (art. 6), namely the protection of the rights
of the defence.
31. On 12 August 1977, following Mrs. Proxauf's complaint, the
public prosecutor's office had instructed the federal police to
investigate "whether or not a punishable act had been committed".
The police questioned Mr. Adolf and several witnesses about the
complaint and then returned the case-file to the public prosecutor's
office which, on 28 September 1977, asked the District Court to
procure a medical report on the seriousness of Mrs. Proxauf's
injury. The Court entered the case in the register and, under the
heading "punishable act", referred to section 83 of the Penal
Code, this being a provision - amongst others - that deals with the
infliction of bodily harm. Following receipt of the doctor's
opinion, the court assessed the costs of the opinion in a decision
of 11 November 1977 which mentioned "the criminal proceedings
against Gustav Adolf under section 83 of the Penal Code" and
described him as "accused".
In view of these circumstances, which are not constested (see
paragraph 11 above), the Court considers that there is a combination
of factors demonstrating that at the relevant time there was a
"criminal charge" against Mr. Adolf within the meaning of the
Convention. Since Mr. Adolf complained of the decision dated
10 January 1978 and of the legal basis thereof, namely section 42 of
the Penal Code, but not of the institution of proceedings against
him, it is unneccessary to determine the precise moment at which he
was "charged".
32. According to the Government, as a matter of law the termination
of proceedings took effect on 24 November 1977, so that at least
from that date onwards Mr. Adolf could no longer be regarded as a
person "charged with a criminal offence" within the meaning of
Article 6 (art. 6) of the Convention.
In the Court's opinion, the decision taken by the District Court on
that date, which was not notified to the applicant, is inseparable
from the reasoned written version dated 10 January 1978, the latter
having spelt out the grounds underlying the former. In short, there
was - to adopt the expression utilised by the Commission's
Delegate - "a single procedural act effected in several stages".
Besides, this was how the Austrian judicial authorities understood the
position: the Generalprokurator's application for annulment, on which
the Supreme Court ruled on 28 February 1980, was directed exclusively
against the decision dated 10 January 1978 (see paragraphs 14 and 16
above).
33. In the submission of the Government, the fact that the District
Court applied section 42 of the Penal Code proved that there never
was a "charge" or an "offence" in this case. The Government
pointed out, futhermore, that the Supreme Court and the great
majority of Austrian legal commentators regard the section as not
being concerned with procedure but as providing a substantive ground
for exonerating the accused, its purpose, it is said, being to
"decriminalise" certain acts of a trivial nature by making them
non-punishable (see paragraph 22 above).
In the first place, the Court observes, as did the Commission's
Delegate, that recourse to section 42 cannot affect the existence,
or retroactively alter the nature, of the procedures conducted prior
to the court order terminating proceedings. The decision dated
10 January 1978 referred to "the criminal case against
Dr. Gustav Adolf for the offence of inflicting bodily harm, within the
meaning of section 83 of the Penal Code" and described him as an
"accused" (see paragraph 12 above). In the notification
of 22 December 1977 (ibid.), the District Court had moreover already
mentioned the "proceedings against Gustav Adolf under section 83 of
the Penal Code".
As regards the concept of a non-punishable act, it is clearly in
line with the title and text of section 42 (mangelnde
Strafwürdigkeit, nicht strafbar). Nevertheless, non-punishable or
unpunished criminal offences do exist and Article 6 (art. 6)
of the Convention does not distinguish between them and other criminal
offences; it applies whenever a person is "charged" with any criminal
offence.
34. To sum up, in 1977 Mr. Adolf was subject to a criminal charge
(within the meaning of the Convention) to which the reasoned
decision dated 10 January 1978 related. Article 6 (art. 6) was thus
applicable in the present case.
2. Compliance with Article 6 (art. 6)
35. Relying on paragraphs 1, 2 and 3 (d) of Article 6 (art. 6-1,
art. 6-2, art. 6-3-d), the applicant reiterated in substance the
arguments he had put forward before the Commission (see paragraph 25
above). In reply, the Government pleaded as their alternative
submission that neither the impugned decision of the Innsbruck
District Court nor its basis in law, namely section 42 of the Penal
Code, infringed the requirements of Article 6 (art. 6) of the
Convention. The Commission, for its part, considered that there had
been a violation of paragraph 2 (art. 6-2), but not of any other
paragraph, such violation arising solely from the said decision.
36. As to whether section 42 of the Penal Code is in itself
compatible with the Convention, the Court would recall its
established case-law: "in proceedings originating in an individual
application, [the Court] has to confine its attention, as far as
possible, to the issues raised by the concrete case before it" (see
notably the Guzzardi judgment of 6 November 1980, Series A no. 39,
pp. 31-32, par. 88). Accordingly, the Court's task is not review in
abstracto under the Convention the provision of domestic law
challenged by Mr. Adolf but to review the manner in which that
provision was applied to him (see notably, in addition to the
Guzzardi judgment, loc. cit., the X v. the United Kingdom judgment
of 5 November 1981, Series A no. 46, p. 14, par. 41).
37. The Government contended that Mr. Adolf was not actually
prejudiced by the District Court's decision and was therefore not a
victim of a violation of his Convention rights. However, in its use
of the word "victim", Article 25 (art. 25) denotes "the person directly
affected by the act or omission which is in issue" - that is to
say, in the present case, the applicant; and the existence of a
violation is conceivable even in the absence of prejudice, prejudice
being relevant only in the context of Article 50 (art. 50) (see
notably the Artico judgment of 13 May 1980, Series A no. 37, p. 18,
par. 35).
38. In its decision dated 10 January 1978, the District Court stated
(see paragraph 12 above):
"... The investigations ... and the expert opinion have shown that
in the course of a quarrel the accused flew into a rage and threw an
envelope containing a key in the direction of Mrs. Anneliese Schuh
who however managed to avoid the missile, while ... Irma Proxauf
standing behind her was hit. The key first struck the back of the
right hand, causing a superficial abrasion, and then bounced against
the left side of the above-mentioned person's chest.
The injury found is insignificant as it does not exceed the
three-day limit; the fault of the accused may be described as
insignificant, and his character gives cause to except that he will
conduct himself properly in future."
In the Court's opinion, this reasoning was capable of suggesting
that Mr. Adolf had inflicted bodily harm on Mrs. Proxauf and that he
was at fault in doing so. The above-quoted extract is not limited to
recounting a "suspected state of affairs": it presents as
established certain facts alleged by the complainant, without even
mentioning that Mr. Adolf had denied throwing any keys and had
denounced the complaint as being knowingly false.
39. The Government considered that a distinction should be drawn
between operative provisions and reasoning adduced; they questioned
whether the use of imprecise or incorrect terminology in the
reasoning, but not in the operative provisions, of a decision
terminating proceedings and hence, in their submission, one that was
beneficial to the person concerned, could in itself go counter to
the presumption of innocence. They drew attention, in this
connection also, to the particular legal character of section 42 of the
Penal Code: the application of this section, so they contended,
meant that the District Court objectively could not, and
subjectively did not, intend to make a finding of legal or moral
guilt.
According to the Supreme Court and the Austrian authorities, section
42 must be read in the light of, inter alia, its drafting history,
the rules of criminal procedure and Article 6 par. 2 (art. 6-2)
of the Convention, the Convention having constitutional status in
Austria. When the section is so construed, the termination of
proceedings under it should be understood as being based on the mere
existence of suspicion and not on actual findings of fact and guilt
(see paragraphs 14, 16 and 24 above).
The fact nonetheless remains that the reasoning in the decision
dated 10 January 1978 was in terms that, in the opinion of the
Court, were well capable of being understood as meaning that
Mr. Adolf was guilty of a criminal offence, albeit one that did not
merit punishment; as the Delegate of the Commission pointed out, the
decision's reasoning forms a whole with and cannot be dissociated
from the operative provisions.
40. According to the Government, the District Court's decision
should be read in conjunction with the judgment of the Supreme
Court; this judgment, the Government submitted, clarified the
District Court's decision by showing that it was grounded solely on
the existence of a "suspected state of affairs".
The judgment of 28 February 1980 (see paragraph 16 above) did indeed
hold that a decision taken in pursuance of section 42 of the Penal
Code does not, because of its very character and whatever may be its
wording, involve anything in the nature of a verdict of guilt. It
would have been preferable, the judgment added, had the District
Court stated this explicitly and without ambiguity, but the more or
less apposite choice of wording in the reasoning could not deprive
the reasoning of the specific significance it had as a result of the
nature of the decision given.
The Court recognises that the District Court's reasoned decision
dated 10 January 1978 must be read with the judgment of the Supreme
Court and in the light of it. That judgment has cleared Mr. Adolf of
any finding of guilt and thus the presumption of his innocence is no
longer called into question. By reason of the nature of section 42
of the Penal Code, the proceedings, on that section being applied,
did not and could not terminate with any finding of guilt; it was
therefore not necessary for the District Court to proceed with any
hearing in the case or exomination of evidence.
41. There has accordingly been no breach of Article 6 (art. 6)
of the Convention.
FOR THESE REASONS, THE COURT
1. Holds unanimously that Article 6 (art. 6) of the Convention
was applicable in the present case;
2. Holds, by four votes to three, that there has been no breach of
that Article (art. 6).
Done in English and in French, the French text being authentic, at
the Human Rights Building, Strasbourg, this twenty-sixth day of
March, one thousand nine hundred and eighy-two.
Signed: Gérard WIARDA
President
Signed: Marc-André EISSEN
Registrar
The following separate opinions are annexed to the present judgment
in accordance with Article 51 par. 2 (art. 51-2) of the Convention
and Rule 50 par. 2 of the Rules of Court :
- joint dissenting opinion of Mr. Cremona, Mr. Liesch and
Mr. Pettiti;
- concurring opinion of Mr. Matscher.
Initialled: G.W.
Initialled: M.-A.E.
JOINT DISSENTING OPINION OF JUDGES CREMONA,
LIESCH AND PETTITI
We find ourselves unable to agree with the majority of our colleagues
that there was no violation of the Convention in this case.
We do go along with them as far as their conclusions that in 1977
the applicant was subjected to a criminal charge and that
Article 6 (art. 6) of the Convention is in fact applicable to this
case. But then we cannot agree that the decision of the Austrian
Supreme Court of 28 February 1980, so far as it went, contrived
to set right a situation which was then already in violation of
Article 6, paragraphs 1 and 2 (art. 6-1, art. 6-2), of the
Convention. It is here at this cucial point that we are compelled
to part ways with the majority.
In its decision dated 10 January 1978 ("Decision in the criminal
case against Dr. Gustav Adolf for the offence of inflicting bodily
harm, within the meaning of section 83 of the Penal Code") the
Innsbruck District Court, applying section 42 of the Penal Code,
stated as follows:
"... The investigations ... and the expert opinion have shown that
in the course of a quarrel the accused flew into a rage and threw
an envelope containing a key in the direction of Mrs. Anneliese Schuh
who however managed to avoid the missile, while ... Irma Proxauf
standing behind her was hit. The key first struck the back of the
right hand, causing a superficial abrasion, and then bounced against
the left side of the above-mentioned person's chest.
The injury found is insignificant as it does not exceed the
three-day limit; the fault (Verschulden) of the accused may be
described as insignificant, and his character gives cause to expect
that he will conduct himself properly in future."
In our view this reasoning clearly amounts to a judicial finding,
in the context of a criminal charge, that the applicant inflicted
bodily harm on another person and that he was in a state of guilt
in doing so. The net result is that, notwithstanding the applicant's
persistent denial of the allegations made against him, and without
holding a public trial, hearing any witnesses and giving the applicant
the opportunity to challenge the aforesaid expert medical opinion,
that Court made findings establishing both the disputed facts and
his contested guilt.
It is true that in its decision of 28 February 1980 the Austrian
Supreme Court in effect stated that, notwithstanding the infelicitous
wording used by the District Court in its decision, that decision,
inasmuch as it applied section 42 of the Austrian Penal Code, was
based solely on the existence of a "suspected state of affairs".
But whilst it is clear that, in a case like this, in principle
it is not within the province of our Court to review the correctness
of the construction put upon section 42 of the Penal Code of Austria
by the Austrian Supreme Court, it is equally clear that what was
found by the District Court in unambigous and unmistakable language
cannot be made to mean other than what it obviously and unavoidably
means. The "fact" of those findings was not erased by mere
"hypothetical" whitewashing.
Indeed the fact remains that the District Court's decision, the
grounds of which in effect amounted to declaring the applicant
guilty of a criminal offence, still stands. The Supreme Court
did not set it aside and the construction put upon it in no way
erased the positive findings actually made in it. Nor did that
Court correct the failure of the District Court to respect the
requirements of Article 6 §§ 1 and 2 (art. 6-1, art. 6-2)
of the Convention taken together, which should have been observed
before those findings were actually reached.
Clearly, before a person is found guilty of a criminal offence
it is essential that he should have the benefit of the guarantees
of Article 6 (art. 6) of the Convention. But the decision of the
District Court, which as already stated still stands, was reached
by a procedure under which the applicant did not have the opportunity
to exercise his rights under that Article (art. 6), in particular
his right to a fair and public hearing and his right to be presumed
innocent until proved guilty according to law.
We therefore find that there was a breach of Article 6,
paragraphs 1 and 2 (art. 6-1, art. 6-2), of the Convention.
In view of this conclusion, we feel dispensed from ascertaining
whether there was, in addition, a breach of Article 6 § 3 (d)
(art. 6-3-d).
CONCURRING OPINION OF JUDGE MATSCHER
(Translation)
I voted for the conclusion that there had been no violation of
Article 6 § 2 (art. 6-2) of the Convention, primarily for the
reasons given in the judgment.
Nonetheless, I should like to point out that the same conclusion
could be reached by other routes, for example by reliance on the
nature of section 42 of the Austrian Penal Code, from which it
follows that the district court, whenever it applies this section
of the Penal Code, is deciding that the contested facts do not
attain the level of seriousness of a criminal offence and thus
fall completely outside the sphere of the criminal law; in other
words, by applying this provision a disctrict court can never violate
Article 6 § 2 (art. 6-2) of the Convention, which safeguards the
presumption of innocence only in respect of a charge of a criminal
offence.
It could also be maintained that whilst the Innsbruck District
Court did indeed make a finding of certain facts in the reasoning
of its decision, it did so in such a generic manner that what it
stated did not amount to finding proved all the various elements
that must be proved for there to be a specific criminal offence.
On the other hand, I well understand the way of thinking of my
colleagues who have felt unable to concur with the majority. In
point of fact, the present case is the result of a chain of
unfortunate circumstances and of mishandling on the part of the
relevant authorities, something which can make it difficult in
the particular event to reach the conclusion that there was no
breach of Article 6 § 2 (art. 6-2) of the Convention.
To begin with, section 42 of the Austrian Penal Code seems to me
to be unsatisfactorily drafted. Read literally, it could be taken
as suggesting that its application presupposes a finding of guilt,
which would hardly be reconcilable with the presumption of innocence
within the meaning of Article 6 § 2 (art. 6-2) of the Convention
(unless the argument based on the very nature of section 42 of
the Penal Code be adopted; as to this, see above). The picture
changes only if section 42 of the Penal Code is construed in the
light of its drafting history, the corpus of the rules of criminal
procedure and Article 6 § 2 (art. 6-2) of the Convention (which
has constitutional status in Austria).
It is also understandable that, confronted with this text which,
as is evident can be conducive to misunderstandings, the judge
at Innsbruck should have resorted to what the Supreme Court called
a "more or less apposite choice of wording" but what I, personally,
would prefer to term as a choice of totally improper wording.
It is precisely this factor that lies at the root of the present
application.
Furthermore, it was wrong of the District Court to have dated
10 January 1978 the written reasoning requested by the applicant,
without specifying that as a matter of law the termination decision
had been taken earlier on 24 November 1977.
Finally, it would have been preferable had the Supreme Court taken
advantage of the occasion offered to it by holding the reasoning
of 10 January 1978 to be contrary to the law, as it had been moved
to do by the Generalprokurator. Such a course of action was all
the more open to the Supreme Court in view of the fact that
section 292 of the Code of Criminal Procedure, fourth sentence,
provides, inter alia, for judgment declaring that a "manner of
proceeding" (Vorgang) was contrary to the law; and this, without
any doubt, was what occurred in the present case.
To sum up, notwithstanding the circumstances that I have just
recounted, I consider the correct conclusion to be that there was
no breach of Article 6 § 2 (art. 6-2) of the Convention.