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You are here: BAILII >> Databases >> European Court of Human Rights >> PFEIFER AND PLANKL v. AUSTRIA - 10802/84 [1992] ECHR 2 (25 February 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/2.html
Cite as: [1992] ECHR 2, 14 EHRR 692, (1992) 14 EHRR 692
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In the case of Pfeifer and Plankl v. Austria*,
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 J. Cremona, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr J. Pinheiro Farinha,
Mr B. Walsh,
Mr R. Bernhardt,
Mr J. De Meyer,
Mr N. Valticos,
Mr A.N. Loizou,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 27 September 1991 and
25 January 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 54/1990/245/316. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 November 1990
and by the Government of the Republic of Austria ("the
Government") on 6 February 1991, 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. 10802/84) against Austria lodged with the Commission under
Article 25 (art. 25) by two Austrian nationals,
Mr Heinrich Pfeifer and Mrs Margit Plankl, on 23 September 1983.
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), and the Government's application to Article 48
(art. 48). The object of the request and 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 para. 1 and Article 8 (art. 6-1, art. 8).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated
that they wished to take part in the proceedings. They sought
leave to be represented by Mr Reinhard Peters, who was not a
lawyer but had assisted them before the Austrian courts and the
Commission (Rule 30 para. 1).
On 12 February 1991 the President granted this leave; he also
authorised the representative to use the German language
(Rule 27 para. 3).
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 22 November 1990 the President drew by lot the names of the
other seven members, namely Mr F. Gölcüklü,
Mr J. Pinheiro Farinha, Mr R. Bernhardt, Mr J. De Meyer,
Mr N. Valticos, Mr I. Foighel and Mr A.N. Loizou (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
Mr B. Walsh, substitute judge, subsequently replaced Mr Foighel,
who was unable to take part in the further consideration of the
case (Rule 22 para. 1 and Rule 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Austrian Government, the Delegate of the Commission and
counsel for the applicants on the organisation of the proceedings
(Rule 37 para. 1 and Rule 38). Pursuant to his orders and
instructions, the Registrar received the applicants' claims under
Article 50 (art. 50) of the Convention on 17 June 1991 and the
Government's memorial on 18 June. The Secretary to the
Commission submitted the Delegate's observations on 12 July, and
on 4 September 1991 produced various documents which had been
requested by the Registrar.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 24 September 1991. The Chamber was presided over by
Mr J. Cremona, the Vice-President of the Court, replacing
Mr Ryssdal, who was unable to take part in the further
consideration of the case (Rule 21 para. 5, second
sub-paragraph). The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Federal Chancellery, Agent,
Mr F. Haug, Ministry of Foreign Affairs,
Mrs I. Gartner, Federal Ministry
of Justice, Counsel;
(b) for the Commission
Mr F. Ermacora, Delegate;
(c) for the applicants
Mr R. Peters, Counsel,
Mrs A. Schwarz, Assistant.
The Court heard addresses by Mr Okresek, Mr Haug and Mrs Gartner
for the Government, Mr Ermacora for the Commission and Mr Peters
for the applicants, as well as their replies to its questions.
Various documents were produced by the Agent of the Government
and the representative of the applicants.
AS TO THE FACTS
I. The particular circumstances of the case
6. Mr Heinrich Pfeifer and Mrs Margit Plankl, both Austrian
citizens, were detained on remand in 1982 in connection with
separate criminal proceedings brought against them before the
Klagenfurt Regional Court (Landesgericht, "the Regional Court").
The present case is not concerned with the proceedings against
the second applicant.
A. The criminal proceedings against Mr Pfeifer
1. Before the Klagenfurt Regional Court
(a) The investigation
7. On 12 November 1982 Judge Kaiser, an investigating judge
at the said court, issued a warrant for Mr Pfeifer's arrest.
He was suspected of having committed various offences, including
aggravated fraud, professional burglary, forgery and suppression
of documents, receiving stolen goods and unlawful possession of
firearms. The reasons cited by the judge in support of his
detention were the danger of his absconding and the risks of
collusion and repetition of offences (Article 175 (1),
sub-paragraphs 2 to 4, of the Code of Criminal Procedure).
8. Mr Pfeifer was arrested in Klagenfurt on
20 November 1982. On the next day he was brought before
Judge Arnold, the duty judge (Journalrichter, Article 179 (1) of
the Code of Criminal Procedure), who informed him of the reasons
for his arrest. On being questioned in the absence of his
lawyer, he admitted unlawful possession of firearms, but denied
having committed any other offence. The judge remanded him in
custody.
9. Also on 21 November 1982 Judge Kaiser ordered the
applicant's transfer to Vienna, where the Regional Criminal Court
(Landesgericht für Strafsachen) had on 20 November issued a
warrant for his arrest on suspicion of having taken part in an
armed robbery in Vienna. The Klagenfurt proceedings were joined
to those instituted in Vienna, and Mr Pfeifer remained in the
Vienna remand prison from 22 November 1982 to 24 February 1983.
10. The proceedings were severed on 20 January 1983 and the
Klagenfurt Regional Court recovered jurisdiction over the
proceedings which are the subject of the present case.
The case was assigned to Judge Startinig, who on 25 February 1983
opened a judicial investigation (Voruntersuchung) and ordered the
applicant's detention to be continued (Article 180 (1) and (2),
sub-paragraphs 1 to 3, of the Code of Criminal Procedure). The
Graz Court of Appeal (Oberlandesgericht) twice authorised the
extension of his detention on remand, for a maximum period of ten
months in all.
11. On 23 May 1983 Mr Pfeifer challenged the investigating
judge, alleging bias, but on 26 May the challenge was held to be
unsubstantiated by the President of the Regional Court.
On 30 June the applicant brought a criminal complaint against
Mr Startinig for abuse of public powers, on the ground that he
had refused to allow a visit by Mr Peters (see paragraphs 2 and
5 above). As the public prosecutor's office had decided not to
bring a prosecution, Mr Pfeifer brought an alternative private
prosecution himself (Subsidiaranklage, see paragraph 14 below).
12. In the main proceedings, counsel for Mr Pfeifer had
submitted a memorial on 21 June 1983. On 19 July the public
prosecutor filed an indictment, in which the only charges were
receiving stolen goods and illegal possession of firearms. An
objection (Einspruch) by the applicant against this indictment
was dismissed by the Graz Court of Appeal on 18 August 1983.
b) The trial
13. Mr Pfeifer was sent for trial before the Regional Court,
composed of two professional judges, Mr Kaiser (the presiding
judge) and Mr Arnold, and two lay assessors (Schöffen).
On 31 August 1983, Judge Kaiser summoned him to inform him that
he had acted as investigating judge in the case until
31 December 1982 (see paragraphs 7 and 9 above) and was
accordingly prevented from sitting in the trial under
Article 68 (2) of the Code of Criminal Procedure. In the course
of the interview Mr Pfeifer waived his right to lodge a plea of
nullity on this ground (Article 281 (1), first sentence, of the
Code; see paragraphs 22 and 24 below).
On 1 September 1983, the presiding judge informed him that
Judge Arnold was also disqualified under Article 68 (2), since
he had, as duty judge, questioned him on 21 November 1982
(see paragraph 8 above). Mr Pfeifer likewise waived his right
to lodge a plea of nullity on this point.
In both cases, the relevant records were signed by him in the
absence of his counsel, who had not been summoned on that
occasion; the applicant had stated that he did not think it
necessary to consult him.
14. The hearings took place on 16 September and
7 October 1983 with the participation of the two above-mentioned
judges.
Defence counsel did not object to the composition of the Regional
Court or challenge Judges Kaiser and Arnold.
Neither did he draw the court's attention, at the hearing of
7 October 1983, to the fact that, in the criminal proceedings
instituted against Judge Startinig, the third investigating judge
(see paragraph 11 above), the applicant had on 23 September 1983
challenged all the judges of the Klagenfurt Regional Court,
including Judges Kaiser and Arnold. This challenge was
eventually allowed by the Graz Court of Appeal on
10 November 1983, the judges concerned having declared themselves
disqualified. The case was therefore referred to the Leoben
Regional Court and later discontinued.
15. Also on 7 October 1983, the court convicted Mr Pfeifer
of aggravated receiving of stolen goods (Article 164 (3) of the
Criminal Code) and unlawful possession of firearms (section 36
of the Firearms Law, Waffengesetz) and sentenced him to three
years' imprisonment.
2. Before the Supreme Court
16. The applicant lodged a plea of nullity
(Nichtigkeitsbeschwerde) and an appeal against sentence
(Berufung), which were dismissed by the Supreme Court (Oberster
Gerichtshof) on 29 February 1984.
On the plea of nullity, the court observed that the defence had
not raised at the proper time the issue of the participation of
Judges Kaiser and Arnold, who had been challenged in earlier
proceedings, otherwise the Regional Court would have been obliged
to give an interlocutory decision. The fact that the challenge
relating to the other case was subsequently allowed (see
paragraph 14 above) did not justify the conclusion that the two
professional judges were also biased in the criminal proceedings
against Mr Pfeifer. Furthermore, the latter could no longer
argue that Judges Kaiser and Arnold should in principle have
withdrawn under Article 68 (2) of the Code of Criminal Procedure
(see paragraph 22 below), because prior to the trial he had
expressly waived his right to challenge them on this ground.
The Supreme Court also confirmed the sentence.
B. The censorship of correspondence between the two applicants
1. The censorship measure
17. During their detention on remand the applicants
corresponded with each other. In the early summer of 1983, the
investigating judge censored a letter from Mrs Plankl to
Mr Pfeifer by crossing out and making illegible certain passages.
They were not reconstructed in the national proceedings, but
their content was said to have been as follows (translation):
"I wonder whether there is anybody left in this monkey house who
is still normal ... In life they are nobodies, here they think
they are gods. Some of the officers are guests like us. They
are always spying on the women, these monkeys are proper peeping
toms! I hate it!"
2. Mrs Plankl's complaint to the Review Chamber of
the Regional Court
18. Mrs Plankl complained to the Review Chamber (Ratskammer)
of the Regional Court. She claimed that the form of censorship
used was unlawful, since Article 187 (2) of the Code of Criminal
Procedure authorised the stopping of letters, but not making them
illegible. Besides, it allowed censorship only in respect of
letters likely to interfere with the purpose of detention, or
giving rise to the suspicion of a criminal offence where the
offender could be prosecuted ex officio, with or without the
victim's authorisation. The relevant passages contained remarks
critical of prison officers but were not, in her opinion, such
as to fall within the scope of the above rules.
19. The complaint was considered in camera in the absence of
the applicant and her counsel. After hearing the prosecution and
studying a report by the investigating judge, the Review Chamber
rejected her complaint on 26 July 1983.
The crossing out of part of a letter was in its opinion a less
severe measure than stopping the letter. It was therefore within
the investigating judge's powers under Article 187 (2) of the
Code of Criminal Procedure (see paragraph 25 below), and did not
infringe Mrs Plankl's rights. It had moreover been justified,
because the passages in question, described in the report as
"jokes of an insulting nature against prison officers", had
constituted defamation (üble Nachrede) of officials in the
exercise of their duty (Article 111 (1) in conjunction with
Article 117 (2) of the Criminal Code), an offence capable of
justifying a censorship measure under Article 187 (2).
3. The plea of nullity for the preservation of the law
before the Supreme Court
20. After the Commission had communicated the application to
the Austrian Government, the Attorney-General's Office
(Generalprokuratur) brought a plea of nullity for the
preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des
Gesetzes) before the Supreme Court. Two grounds of appeal were
submitted.
It was argued, firstly, that the rendering illegible
(Unleserlichmachen) of certain passages and the Review Chamber's
decision thereon were not covered by Article 187 (2). Under that
provision all letters from a person detained on remand to a
private individual had to be stopped if they gave rise to the
suspicion of a criminal offence subject to public prosecution ex
officio (von Amts wegen). This was not the case with the
passages in question. If they were to be regarded as an offence
under Articles 111 (1) or 115 (1) of the Criminal Code, in
principle only the victim could act, and public prosecution (with
the victim's authorisation and that of his superior authority)
under Article 117 (2) of the Criminal Code was possible only if
the insults were made "person to person" and not if they were in
a letter.
Secondly, Article 187 (2) authorised only the stopping of
letters, not the deletion of specific passages.
21. On 20 October 1987, after a public hearing, the Supreme
Court dismissed the first ground of appeal but upheld the second.
(a) On the assumption that the passages in issue contained
"jokes of an insulting nature against prison officers", the court
considered that there were grounds for suspecting the applicant
of insulting behaviour (Beleidigung - Article 115 of the Criminal
Code) rather than defamation (Article 111). Such an offence, if
committed against an official in the exercise of his duty,
required public prosecution with the victim's authorisation
(Article 117 (2) of the Criminal Code, see paragraph 26 below).
In the present case, the offence resulted from the handing over
by Mrs Plankl of an unsealed letter to a prison officer for the
purpose of transmitting it to the investigating judge. It had
thus been possible for the letter's content to become known to
several prison or court officers in the exercise of their duty.
Article 117 (2) of the Criminal Code being applicable, the
measure in question was covered by Article 187 (2) of the Code
of Criminal Procedure.
(b) The investigating judge and the Review Chamber had,
however, misapplied this provision, which authorised the stopping
of letters but not the deletion of passages from them. The
investigating judge had in fact not taken a "less severe measure"
under an implied power, but a different measure which interfered
with the interests of the prosecution authorities and the prison
officers concerned, as they had the possibility of bringing
criminal proceedings against Mrs Plankl on account of her remarks
in the letter. The law had been violated in this latter respect,
but Mrs Plankl had not been injured thereby and could therefore
not complain of the dismissal of her complaint by the Review
Chamber.
II. The relevant domestic law
A. Rules concerning disqualification of or challenge to a
judge
22. According to Article 68 (2) of the Code of Criminal
Procedure:
"A person shall be disqualified from participating or deciding
in the trial proceedings if he has acted as investigating judge
in the same case ..."
23. The following provisions of the Code of Criminal
Procedure govern the disqualification (Ausschliessung) of judges:
Article 70 (1)
"A judge is obliged to bring circumstances which disqualify him
to the immediate attention of the president of the court of which
he is a member ..."
Article 71 (1)
"From the moment when grounds for his disqualification come to
his knowledge, every judicial officer (Gerichtsperson) shall
refrain from all judicial acts, on pain of nullity of such acts.
The judicial officer concerned may carry out judicial acts which
are urgent, but only where there is danger in delay and if
another judge or registrar cannot be appointed immediately ..."
24. Furthermore, under Article 72 the parties to the
proceedings may challenge (ablehnen) a judge if they can show
that there are reasons for doubting his complete impartiality.
Although Article 72 refers expressly to grounds other than
disqualification, it is the practice of the courts to apply
Article 72 also in cases where a party raises an issue relating
to a judge's disqualification. In fact, the disqualification of
a first-instance judge cannot subsequently be pleaded in nullity
proceedings unless he was challenged before or at the trial or
immediately after the ground for disqualification became known
to the party (Article 281 (1), sub-paragraph 1, of the Code of
Criminal Procedure). The procedure applicable in this respect
is the following:
Article 73
"An application by a party to challenge a judge shall be
submitted to the court of which the person challenged is a member
or declared orally before the registrar, at any time but not
later than twenty-four hours before the start of the hearing in
the case of a challenge to a member of the trial court, and not
later than three days after service of the summons to appear at
the hearing in the case of a challenge to the whole court. In
the application the grounds of challenge must be stated precisely
and, as far as possible, supported by evidence."
B. Rules concerning surveillance of correspondence
25. The control of correspondence of remand prisoners is
governed by Article 187 of the Code of Criminal Procedure, which
provides:
"(1) Remand prisoners may ... correspond in writing with all
persons, provided that there is no danger that such persons may
interfere with the purpose of the detention ...
(2) ... Letters from detainees which give rise to the suspicion
that an offence, not being an offence which can be prosecuted
only at the request of a person concerned, is being committed by
means of them, are always to be stopped, unless they are
addressed to a national general representative body, a national
court or other national authority, or to the European Commission
of Human Rights.
(3) ..."
Decisions concerning the persons with whom the detainee may
correspond and the surveillance of correspondence are the
responsibility of the investigating judge. A complaint against
such a decision lies with the Review Chamber of the Regional
Court (Article 188 of the Code of Criminal Procedure).
26. For the purposes of Article 187 (2), public prosecution
offences (Offizyialdelikte) may justify the stopping of a letter,
whereas private prosecution offences (Privatanklagedelikte) may
not. In addition, it follows from the Supreme Court judgment of
20 October 1987 (see paragraph 21 above) that such measures may
also be justified in the case of offences qualifying for public
prosecution with the authorisation of the injured party
(Ermächtigungsdelikte), for instance offences committed against
officials in the exercise of their duty. In this latter respect
Article 117 (2) of the Criminal Code provides:
"Where an offence against honour is committed against an official
... during the exercise of his duties ..., the public prosecutor
shall, with the authorisation of the injured party and his
superior authority, institute proceedings within the time-limit
which would otherwise be available to the injured party for the
lodging of a request for prosecution. The same shall apply where
such an offence against [an official] in connection with one of
his professional activities is committed in a printed
publication, in a broadcast, or in some other manner whereby it
becomes accessible to the general public."
PROCEEDINGS BEFORE THE COMMISSION
27. In their application (no. 10802/84) lodged with the
Commission on 23 September 1983, Mr Pfeifer and Mrs Plankl
alleged various violations of Articles 3, 5, 6, 7, 8 and 13 of
the Convention (art. 3, art. 5, art. 6, art. 7, art. 8, art. 13).
In particular, Mr Pfeifer maintained that his right to have his
case examined by an independent and impartial tribunal
established by law within the meaning of Article 6 para. 1
(art. 6-1) had been violated. Furthermore, both applicants
claimed that the censorship of a letter from Mrs Plankl to
Mr Pfeifer constituted an unjustified interference with their
right to respect for their correspondence under Article 8
(art. 8).
28. The Commission, by decisions of 13 May 1987,
15 December 1988 and 8 May 1989, declared the application
inadmissible, apart from two complaints which it found admissible
on the last of these dates. In its report of 11 October 1990
(Article 31) (art. 31), it expressed the opinion that there had
been violations of Article 6 para. 1 (art. 6-1) (unanimously) and
of Article 8 ((art. 8) ten votes to one).
The full text of the Commission's opinion is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 227
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
29. At the hearing on 24 September 1991, the Agent of the
Government asked the Court
"to hold that because of the failure to exhaust domestic remedies
it [had] no jurisdiction to consider the merits of the
application as regards Mr Pfeifer and, in the alternative, to
hold that there [had] not been a violation of Article 8 (art. 8)
of the Convention with respect to either of the two applicants
or of Article 6 (art. 6) with respect to the criminal proceedings
against Mr Pfeifer".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6)
30. Mr Pfeifer claimed to have suffered a violation of his
right to be tried by an "impartial tribunal established by law"
within the meaning of Article 6 para. 1 (art. 6-1) of the
Convention, which reads as follows:
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing ... by an independent and
impartial tribunal established by law."
The Government disputed this argument, but the Commission agreed
with it.
A. The Government's preliminary objection
31. The Government argued that Mr Pfeifer had not exhausted
all domestic remedies, as the defence had neither challenged the
two judges in question before the Regional Court nor raised the
question of their disqualification in the plea of nullity to the
Supreme Court, and had even undisputably waived the right to do
so (see paragraphs 13, 14, 16, 22 and 24 above).
32. The Commission asked the Court to declare the objection
inadmissible and referred to the dissenting opinions in certain
recent cases (see, inter alia, the Cardot v. France judgment of
19 March 1991, Series A no. 200, pp. 22-24, opinions of
Judges Martens and Morenilla). In the alternative, it argued
that the applicant's waiver would in all probability have made
the remedies mentioned by the Government ineffective.
Mr Pfeifer explained that his failure to react at the beginning
of the hearing was due to the fact that he was unaware that he
could still withdraw his declaration. As for his lawyer, he had
not known that grounds for disqualification existed.
33. With reference to its jurisdiction to consider the
objection, the Court refers to its well-established case-law (as
first stated in the De Wilde, Ooms and Versyp v. Belgium judgment
of 18 June 1971, Series A no. 14, pp. 27-30, paras. 44-52); for
the reasons given in the Pine Valley Developments Ltd and Others
v. Ireland judgment of 29 November 1991 (Series A no. 222, p. 19,
para. 39), it does not consider it should depart therefrom. It
further notes that the Government previously put forward a
similar plea before the Commission, so that there is no estoppel.
34. As to the merits of the objection, the Court takes note
of a passage in the judgment of 29 February 1984, in which the
Supreme Court stated that Mr Pfeifer could no longer claim that
there had been an infringement of Article 68 (2) of the Code of
Criminal Procedure, as he had waived doing so before the start
of the trial (see paragraph 16 above). As the Commission rightly
pointed out, such a statement clearly shows that the question is
inextricably linked with that of the validity of the waiver.
Because of its effect on the right recognised in
Article 6 para. 1 (art. 6-1) of the Convention, the question of
the waiver relates to the merits of the case, and the
Government's objection must therefore be joined to the merits.
B. The merits of the complaint
35. Mr Pfeifer claimed that the two professional judges who
sat as members of the Klagenfurt Regional Court in his case
should have withdrawn under Article 68 (2) of the Code of
Criminal Procedure, as they had acted as investigating judges in
the case (see paragraph 22 above).
The Commission agreed with this argument. The Government, on the
other hand, considered that this provision was more rigorous than
Article 6 para. 1 (art. 6-1) of the Convention, so that the
failure to apply the former did not necessarily mean that there
had been a violation of the latter.
36. In the Court's opinion, the complaint of the lack of an
"impartial" tribunal and that of the lack of a tribunal
"established by law" coincide in substance in the present case.
Article 68 (2), under which a judge is disqualified from hearing
a case if he has already had to deal with it as investigating
judge, manifests the legislature's concern to remove all
reasonable doubt as to the impartiality of trial courts. Its
non-observance means that Mr Pfeifer was tried by a court whose
impartiality was recognised by national law itself to be open to
doubt (see, mutatis mutandis, the Oberschlick v. Austria judgment
of 23 May 1991, Series A no. 204, p. 23, para. 50). In this
respect, it is unnecessary to define the precise role played by
the judges in question during the investigative stage (see,
mutatis mutandis, the Piersack v. Belgium judgment of
1 October 1982, Series A no. 53, p. 16, para. 31).
37. The Government argued that the applicant had waived his
right under Article 6 para. 1 (art. 6-1), not only implicitly in
failing to challenge the composition of the Regional Court at the
appropriate time (see paragraph 32 above) but also expressly
before the opening of the hearing (see paragraph 13 above).
According to the Court's case-law, the waiver of a right
guaranteed by the Convention - insofar as it is permissible -
must be established in an unequivocal manner (see, as the most
recent authority, the Oberschlick judgment cited above, Series
A no. 204, p. 23, para. 51). Moreover, the Court agrees with the
Commission that in the case of procedural rights a waiver, in
order to be effective for Convention purposes, requires minimum
guarantees commensurate to its importance.
38. Under Articles 70 (1) and 71 (1) of the Code of Criminal
Procedure (see paragraph 23 above) Judges Kaiser and Arnold were
obliged firstly to inform the President of the Regional Court of
the circumstances entailing their disqualification; they were
also obliged, on pain of nullity, to refrain from carrying out
any judicial act, even before the applicant was summoned by
Judge Kaiser on 31 August and 1 September 1983 in order to be
informed of the situation (see paragraph 13 above). In addition,
as the Government conceded, there is no provision of Austrian law
which allows for a defendant expressly to waive his right to be
tried by a court whose composition is in accordance with the law,
nor consequently is there any provision which defines the
procedure to be followed for this purpose. But such a right is
of essential importance and its exercise cannot depend on the
parties alone.
In the instant case it is sufficient to note that Judge Kaiser
on his own initiative approached Mr Pfeifer in the absence of his
lawyer, the latter not having been summoned despite his having
previously taken part in the proceedings (see paragraphs 12-13
above). He put to him a question which was essentially one of
law, whose implications Mr Pfeifer as a layman was not in a
position to appreciate completely. A waiver of rights expressed
there and then in such circumstances appears questionable, to say
the least. The fact that the applicant stated that he did not
think it necessary for his lawyer to be present makes no
difference.
39. Thus even supposing that the rights in question can be
waived by a defendant, the circumstances surrounding the
applicant's decision deprived it of any validity from the point
of view of the Convention.
In conclusion, the Court rejects the Government's preliminary
objection and considers that there has been a violation of
Article 6 para. 1 (art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
40. Both applicants claimed to be victims of a violation of
Article 8 (art. 8) of the Convention, according to which:
"1. Everyone has the right to respect for ... his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission agreed with this argument, but the Government did
not.
A. The Government's preliminary objection
41. The Government claimed that only Mrs Plankl had exhausted
domestic remedies with respect to the complaint based on
the deletion of part of her letter to Mr Pfeifer (see
paragraphs 17-18 above), as the latter had not complained of this
to the Review Chamber of the Regional Court.
42. The Court observes, as did the Commission, that the
measure in issue affected both applicants at the same time. It
therefore appears pointless to enquire whether one of them
exhausted domestic remedies with reference thereto, given that
the other undeniably did so without success.
B. The merits of the complaint
43. According to the applicants, the alleged violation of
Article 8 (art. 8) followed from the deletion by the
investigating judge of certain passages in Mrs Plankl's letter
to Mr Pfeifer (see paragraph 17 above).
It is not disputed that there was an interference with the
exercise of the applicants' right to respect for their
correspondence, as guaranteed by Article 8 para. 1 (art. 8-1).
44. The Court agrees that, as stated by the Government and
notwithstanding the doubts expressed by the Commission, the
disputed measure was based on Article 187 (2) of the Code of
Criminal Procedure (see paragraph 25 above).
The Court also considers, in agreement with the Commission and
the Government, that the partial crossing out of the letter in
question was aimed at ensuring "the protection of the rights ...
of others" and "the prevention of ... crime".
45. As to whether the interference was "necessary in a
democratic society", it is in the Government's opinion essential
to take into account the contents of the letter, as reported by
the investigating judge (see paragraph 19 above). That judge
considered that the crossing out was necessary as the passages
complained of consisted of remarks which were likely to undermine
the authority of the prison officers and prejudice the proper
working of the prison. Further, it was proportionate, as the
letter had been sent on afterwards.
46. The Court recognises that some measure of control over
prisoners' correspondence is not of itself incompatible with the
Convention, but the resulting interference must not exceed what
is required by the legitimate aim pursued.
47. According to the investigating judge, the deleted
passages contained "jokes of an insulting nature against prison
officers" (see paragraph 19 above). Their text was not, however,
reconstructed before the Austrian courts.
The Commission rightly concluded from the account given by
Mrs Plankl that the letter consisted rather of criticisms of
prison conditions and in particular the behaviour of certain
prison officers. Although some of the expressions used were
doubtless rather strong ones (see paragraph 17 above), they were
part of a private letter which under the relevant legislation
(Article 188 of the Code of Criminal Procedure, see paragraph 25
above) should have been read by Mr Pfeifer and the investigating
judge only.
In the case of Silver and Others v. the United Kingdom, the Court
held that it was not "necessary in a democratic society" to stop
private letters "calculated to hold the authorities up to
contempt" or containing "material deliberately calculated to hold
the prison authorities up to contempt" (judgment of
25 March 1983, Series A no. 61, pp. 26 and 38, paras. 64
and 99 (c)). The deletion of passages is admittedly a less
serious interference, but in the circumstances of the case this
too appears disproportionate.
48. There has therefore been a violation of Article 8
(art. 8).
III. APPLICATION OF ARTICLE 50 (art. 50)
49. According to Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
The applicants claimed compensation for non-pecuniary damage and
reimbursement of costs and expenses.
A. Non-pecuniary damage
50. Mr Pfeifer claimed 45,000 Austrian schillings as
compensation for his detention, which he said had been three
months longer than the sentences passed.
The Court dismisses the claim, as there is no causal link between
the violation of Article 6 (art. 6) which has been found in the
present judgment and the length of the detention (see
paragraph 39 above).
51. Mrs Plankl's claim for 10,000 schillings in respect of
the psychological consequences of her conditions of imprisonment
should also be refused, as there is no direct link between them
and the censorship of the letter.
B. Costs and expenses
52. Mr Pfeifer claimed a total of 69,490 schillings in
respect of his costs and expenses before the Supreme Court,
covering both his appeals (see paragraph 16 above). The
Government correctly pointed out that that court had heard them
together. The Court, deciding on an equitable basis, awards the
applicant 20,000 schillings under this head.
Mrs Plankl drew up her complaint to the Review Chamber herself.
Only the 1,500 schillings it cost her to submit her application
to the Ministry of Justice can be taken into account.
53. The applicants sought reimbursement of 90,480 schillings
in respect of the proceedings before the Commission and Court.
Having regard to the circumstances of the case, the Court, on an
equitable basis, awards them 60,000 schillings jointly.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that it has jurisdiction to
examine the Government's preliminary objections;
2. By unanimous votes, joins to the merits the objection
relating to Mr Pfeifer's complaint based on Article 6 para. 1
(art. 6-1), but dismisses it after examining the merits;
3. Holds unanimously that there has been a violation of
Article 6 para. 1 (art. 6-1);
4. Holds unanimously that there is no need to examine the
objection relating to the alleged violation of Article 8
(art. 8) in the case of Mr Pfeifer;
5. Holds unanimously that there has been a violation of
Article 8 (art. 8) with respect to both applicants;
6. Holds unanimously that the respondent State is within
three months to pay 20,000 (twenty thousand) Austrian schillings
to Mr Pfeifer and 1,500 (one thousand five hundred) schillings
to Mrs Plankl, and 60,000 (sixty thousand) schillings to the two
applicants jointly, in respect of costs and expenses;
7. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in French and in English, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 25 February 1992.
Signed: John CREMONA
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
separate opinion of Mr Bernhardt is annexed to this judgment.
Initialled: J.C.
Initialled: M.-A.E.
SEPARATE OPINION OF JUDGE BERNHARDT
I have voted against point 1 of the operative provisions of the
judgment, since in my view the Court should no longer consider
preliminary objections which have been rejected by the
Commission.