P. v. AUSTRIA



AS TO THE ADMISSIBILITY OF

Application No. 17072/90

by I.P.

against Austria

The European Commission of Human Rights sitting in private on

29 June 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 August 1990 by

I.P. against Austria and registered on 27 August 1990 under file No.

17072/90;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1935. She is

President of the Administrative Court (Verwaltungsgerichtshof) and is

represented before the Commission by Mr. W. Schuppich, a lawyer

practising in Vienna. The facts of the case, as submitted by the

applicant, may be summarised as follows.

On 27 September 1989 the Austrian Parliament (Nationalrat) set

up a Parliamentary Committee of Inquiry (parlamentarischer

Untersuchungsausschuß) into the way an export licence had been granted

for arms ostensibly destined for Libya, but which were in fact intended

to be shipped to Iran.

The Committee was set up pursuant to Article 53 para. 1 of the

Federal Constitutional Law (Bundes-Verfassungsgesetz). According to

Article 53 para. 2 of that Law, regulations for the proceedings before

such committees are governed by the Rules of Parliamentary Procedure

(Bundesgesetz über die Geschäftsordnung des Nationalrates, "the

Rules"). Rule 33(5) provides that the Code of Criminal Procedure

(Strafprozeßordnung) is applicable to the taking of evidence before

Committees of Inquiry; other provisions of the Code of Criminal

Procedure are applicable to the extent referred to in Articles 246-254

of the Code of Criminal Procedure. The Rules provide only for

witnesses before Committees, not defendants. The applicant considers

that if questions are put to a witness concerning matters which can

also be the basis of criminal offences, the effect of the proceedings

can be to put a person who is technically in the role of witness, in

the position of a de facto defendant (materiell Beschuldigter).

The Committee's terms of reference included

"3. to examine the political and administrative

responsibility in the course of the licence and supervision

of the export, and clarification of the allegation".

On 16 and 20 February 1990 the applicant was questioned by the

Committee into the way the export licence was granted.

The final report of the Committee, presented to Parliament on 2

April 1990, included, at point 104, the following statement:

"The Committee considers that [the applicant's] statements

that she knew nothing of the [telex] cannot be believed."

On 12 December 1991 the applicant was convicted by the Vienna

Regional Court (Landesgericht) of giving false evidence to the

Committee of Inquiry and to criminal courts. In each case the evidence

comprised a denial that she was aware of a specific telex. She was

fined a total of AS 270,000. The appeal against the conviction is

still pending.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

in that in the proceedings before the Parliamentary Committee of

Inquiry she was a "de facto" defendant (materiell Beschuldigter) but

was not given the rights set out in Article 6 of the Convention.

THE LAW

1 The applicant alleges a violation of Article 6 (Art. 6)

of the Convention in that the guarantees secured by that provision were

not available to her while she was being questioned by the

Parliamentary Committee of Inquiry. Article 6 (Art. 6) of the

Convention provides, so far as relevant, as follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law. Judgment shall be pronounced publicly

but the press and public may be excluded from all or part

of the trial in the interest of morals, public order or

national security in a democratic society, where the

interests of juveniles or the protection of the private

life of the parties so require, or to the extent strictly

necessary in the opinion of the court in special

circumstances where publicity would prejudice the interests

of justice.

2 Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law."

The Commission must consider whether Article 6 (Art. 6) of the

Convention should have been applied in the proceedings before the

Parliamentary Committee of Inquiry, that is, it must ascertain whether

any "criminal charge" against the applicant was determined in those

proceedings.

In deciding whether a "criminal charge" within the meaning of the

Convention is at issue in a particular case, the case-law of the

Convention organs requires, first, reference to the domestic law

involved with a view to ascertaining whether the legal system of the

respondent State classifies the "offence" as "criminal". The nature

of the "offence" and the degree of severity of the penalty that the

person concerned risks incurring must then be considered (cf. Eur.

Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22,

p. 34, para. 82, Eur. Court H.R. Óztürk judgment of 21 February 1984,

Series A no. 73, p. 18, para. 50; Eur. Court H.R., Campbell and Fell

judgment of 28 June 1984, Series A no. 80, pp. 35-38, paras. 70-73;

Eur. Court H.R., Weber judgment of 22 May 1990, Series A no. 177, pp.

17-18, paras. 31-34 and Eur. Court H.R., Demicoli judgment of 27 August

1991 Series A no. 210, para. 31).

The applicant in the present case was called as a witness in

parliamentary inquiry proceedings the aim of which was to establish

political responsiblity for the export of arms. In domestic law no

offence and no formal penalty were involved.

The Commission recalls that it is possible for a person to be

"charged" within the meaning of Article 6 (Art. 6) of the Convention

even where domestic law sees no charge (cf. Eur. Court H.R., Deweer

judgment of 27 February 1980, Series A no. 35, p. 23, para. 44). In

the present case, however, the role of the Parliamentary Committee of

Inquiry was limited to an examination of how the controversial licence

came to be issued, how the conditions laid down in the arms control

legislation were circumvented, and where the political and

administrative responsibility for such circumvention lay. Such matters

of general and genuine public concern established the applicant's

administrative responsiblity for the matters under investigation, but

there is no indication that the applicant's appearances before the

Parliamentary Committee of Inquiry in any way amounted to a disguised

form of criminal proceedings. The subsequent criminal proceedings

brought against the applicant for failing to tell the truth to the

Parliamentary Committee are irrelevant to the question whether the

Committee's proceedings determined a criminal charge. Accordingly,

there was no offence whose nature falls to be examined.

The Commission therefore finds that the subject matter before the

Parliamentary Committee of Inquiry was not such as to involve the

determination of any "criminal charge" against the applicant.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

2 The applicant also alleges a violation of Article 6 para. 2

(Art. 6-2) of the Convention.

To the extent that this complaint relates to procedural aspects

of the applicant's questioning before the Parliamentary Committee of

Inquiry, it has been considered in the preceding paragraph.

To the extent that the complaint relates to the impact that the

proceedings before the Parliamentary Committee of Inquiry, and the

subsequent report, may have had on other proceedings, that is on the

proceedings before the Vienna Regional Court in which the applicant was

convicted on 12 December 1991, the Commission notes that those

proceedings are still pending, and recalls that it can only assess the

fairness of criminal proceedings when it is able to consider them in

their entirety (cf. No. 9000/80, Dec. 11. 3. 82, D.R. 28 p. 127, with

further references). Moreover, an acquittal will normally be regarded

as rectifying procedural errors alleged to have violated the Convention

(cf. No. 5572/72, Dec. 8. 7. 73, D.R. 1 p. 44; No. 8083/77, Dec. 13.

3 80, D.R. 19 p. 223). Until the relevant proceedings have finished,

with the exhaustion of domestic remedies as required by Article 26

(Art. 26) of the Convention, it is not possible to consider whether the

proceedings themselves were unfair or whether the use made of the

findings of the Parliamentary Committee of Inquiry violated Article 6

para. 2 (Art. 27-2) of the Convention.

This part of the application is therefore premature and must be

rejected as manifestly ill-founded in accordance with Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)