CASE OF ADOLF v. AUSTRIA
No violation of Art. 6
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 therefore 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. 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).