Judgment (Merits and Just Satisfaction) of European Court of Human Rights, November 24, 1986 (case CASE OF UNTERPERTINGER v. AUSTRIA)

Judge:N\/A
Defense:AUSTRIA
Resolution Date:November 24, 1986
SUMMARY

Violation of Art. 6-1+6-3-d Pecuniary damage - financial award Non-pecuniary damage - financial award Costs and expenses award - Convention proceedings

 
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COURT (CHAMBER)

CASE OF UNTERPERTINGER v. AUSTRIA

(Application no. 9120/80)

JUDGMENT

STRASBOURG

24 November 1986

In the Unterpertinger case[],

The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:

             Mr.               G. Wiarda, President,

             Mr.               W. Ganshof van der Meersch,

             Mr.               F. Matscher,

             Mr.               B. Walsh,

             Sir               Vincent Evans,

             Mr.               R. Macdonald,

             Mr.               C. Russo,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,

Having deliberated in private on 19 February and 22 October 1986,

Delivers the following judgment, which was adopted on the latter date:

PROCEDURE

  1.    The present case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Government of the Republic of Austria ("the Government") on 14 March and 30 April 1985 respectively, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention. The case originated in an application (no. 9120/80) against the Republic of Austria, lodged with the Commission under Article 25 (art. 25) on 1 September 1980 by an Austrian citizen, Mr. Alois Unterpertinger.

    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); the Government’s application referred to Article 48 (art. 48). Both sought a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 §§ 1 and 3 (d) (art. 6-1, art. 6-3-d).

  2.    In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30).

  3.    The Chamber of seven judges to be constituted included, as ex officio members, Mr. F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of the Court (Rule 21 § 3 (b)). On 27 March 1985, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mrs. D. Bindschedler-Robert, Mr. J. Pinheiro Farinha, Mr. E. García de Enterría, Mr. B. Walsh and Sir Vincent Evans (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr. García de Enterría, Mr. Pinheiro Farinha and Mrs. Bindschedler-Robert, who were unable to take part in the proceedings, were replaced by Mr. W. Ganshof van der Meersch, Mr. C. Russo and Mr. R. Macdonald, substitute judges (Rule 24 § 1).

  4.    Having assumed the office of President of the Chamber (Rule 21 § 5), Mr. Wiarda ascertained, through the Deputy Registrar, the views of the Agent of the Government, the Delegate of the Commission and Mr. Unterpertinger’s representative on the need for a written procedure (Rule 37 § 1). On 24 April, he directed that the applicant’s representative should have until 6 June 1985 to submit a memorial and that the Delegate should be entitled to file a reply within two months of the transmission of that memorial to him by the Registrar. On 12 April, the President had granted the applicant’s lawyer leave to use the German language (Rule 27 § 3).

  5.    The Registrar received the applicant’s memorial on 10 June.

    On 11 July, the Secretary to the Commission notified the Registrar that the Delegate would submit his observations orally at the hearing.

    At the Delegate’s request, the President directed on 3 December 1985 that one paragraph in the applicant’s memorial should not be published or otherwise made accessible to the public (Rule 55).

  6.    Earlier, on 23 October, after consulting - through the Deputy Registrar - the Agent of the Government, the Delegate of the Commission and the applicant’s representative, the President had directed that the oral proceedings should open on 17 February 1986 (Rule 38).

    On 3 February 1986, the Commission supplied to the Registrar certain documents which he had requested on the President’s instructions.

  7.    The hearings were held in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand.

    There appeared before the Court:

    - for the Government

                 Mr. H. Türk, Legal Adviser,

                                             Ministry of Foreign Affairs,               Agent,

                 Mr. M. Matzka, Federal Chancellery,

                 Mr. H. Epp, Federal Ministry of Justice,               Advisers;

    - for the Commission

                 Mr. Gaukur Jörundsson,               Delegate;

    - for the applicant

                 Mr. F. Krall, Rechtsanwalt,               Counsel.

    The Court heard their addresses as well as their replies to its questions. The Government and the applicant produced documents at the hearings.

    THE FACTS

  8.    Mr. Unterpertinger, who is an Austrian national born in 1938, lives in Wörgl.

    He complains of criminal proceedings brought against him for causing actual bodily harm to his step-daughter on 14 August 1979 and to his wife on the following 9 September.

  9. Police proceedings

  10.    The incident on 14 August 1979 was reported to the Wörgl police (Gendarmeriepostenkommando) that day, first by a neighbour at the applicant’s request and then by the applicant himself. According to him, his wife and step-daughter - who had that morning called him a "convict" (Zuchthäusler) - attacked him at about midday during a quarrel. In particular, he claimed that his wife had inflicted several head wounds with a paper-knife and gashed his forehead close to his eyebrow. He had needed treatment by a doctor.

    He admitted that he had pushed his wife at the time and had tried unsuccessfully to slap his step-daughter in the face.

  11.    On 22 August 1979, the police questioned the applicant’s wife as a "suspect" (Verdächtige) and his step-daughter, Miss Tappeiner, as a "person involved" (Beteiligte).

    Mrs. Unterpertinger stated that she had been slapped in the face and beaten by her husband, who had grabbed her daughter by the hair to stop her running away; both of them had then fought back. She had been holding a paper-knife and had, she said, probably struck him with it, but neither she nor her daughter had deliberately caused him any wounds to the head or face.

    Miss Tappeiner admitted having called her step-father a "convict" that morning, and said that he had responded by slapping her in the face, but without injuring her. During the quarrel at midday, he had hit her mother several times, once in the face. When she herself had tried to escape, he had grabbed her by the hair and scratched her just below the right eye. He had also grabbed her mother by the hair and by the scruff of the neck. The two women had therefore fought back, and she had pulled her step-father’s hair but had not hit him; she had not seen her...

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