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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: 14 EHRR 692, [1992] ECHR 2, (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.