AS TO THE ADMISSIBILITY OF
Application No. 13161/87
by Josef ARTNER
against Austria
The European Commission of Human Rights sitting in private
on 5 March 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 6 July 1987
by Josef Artner against Austria and registered on 21 August 1987
under file No. 13161/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 24 September 1989 and the observations in reply
submitted by the applicant on 13 October 1989;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1953. He was
detained in prison in Vienna when he lodged this application. He is
represented by Mr. Franz X. Gugg, a lawyer in Vienna.
The facts agreed between the parties may be summarised as
follows.
On 16 December 1986 the applicant was convicted by the Vienna
Regional Court (Landesgericht) of two counts of usury (Geldwucher), of
partly completed and partly attempted aggravated fraud (schwerer Betrug),
of breach of trust (Veruntreuung) and of aggravated theft (schwerer
Diebstahl). He was sentenced to three years' imprisonment. The applicant
had previously been convicted eight times of similar charges.
The conviction of usury in one case was based on the following
findings: in the summer of 1982 the applicant advertised in
newspapers that he could procure loans. He was contacted by Miss L.,
who was twenty years old and in financial difficulties. As she could
offer no guarantees, the applicant proposed that she take out a loan
together with a third person who, at the same time, would act as
guarantor. L. accepted and on 24 August 1982 the applicant, L. and
one S., a Yugoslav allegedly unknown to the applicant, contacted a
credit institute. S. and L. applied for and obtained as joint debtors
a loan of 60,000 AS. The money was paid out immediately. L. received
20,000 AS, S. received 30,000 AS and the applicant 10,000 AS. S. later
disappeared, while L. was liable for the reimbursement of 60,000 AS.
The Court considered that the commission of 10,000 AS received by
the applicant was disproportionate to the loan received by L., namely
20,000 AS, and that the applicant had misused L.'s inexperience and
rashness. These findings were based on statements made by L. before
the investigating judge and read out at the trial and on documentary
evidence submitted by L. in connection with the charges she had
previously laid against the applicant.
In preparation of the trial, the applicant's defence counsel
had, on 12 November 1986, requested to hear certain witnesses. Inter
alia, he suggested in respect of the charges laid by L. to hear a
representative of the credit institute supposed to confirm his
allegation that L. first reimbursed during several months the loan
without complaining while later she was apparently informed by the
credit institute of the "well known practices of credit mediators"
which, as the defence put it, might have given certain ideas to her
(motivierend wirkte). Meanwhile L. had been summoned to give evidence
at the trial as witness for the prosecution. As the summons was
returned with the mention that L. had moved and her new whereabouts
were unkown the trial court requested the Central Registry of the
Vienna Federal Police Directorate on 28 October 1986 for information
whether L. was registered under a new address. A new address was in
fact obtained and L. was summoned under this address.
However, L. did not appear at the trial of 21 November 1986.
The applicant denied the respective charges and was not prepared to
renounce the hearing of this witness. The trial was adjourned until
16 December 1986 and the police was ordered to see to it that L. attend
the new hearing but her whereabouts could not be ascertained. The
applicant was so informed at the beginning of the hearing of
16 December 1986. At the end of the hearing his defence counsel
maintained all motions for the taking of evidence which had previously
been rejected (Verteidiger wiederholt die abgewiesenen Beweisanträge).
The evidence given by L. before the investigating judge was then read
out.
The trial court considered L.'s statement to be credible
although initially she had said that the money had been handed over to
the applicant while later she said it was given to S. who distributed
it. This slight contradiction was considered to be of no importance
as uncontestedly all the three had been together at the credit
institute and the money was paid out to them.
The other usury offence concerned a loan of 40,000 AS with
regard to which the applicant had claimed and obtained a commission of
approximately 15,000 AS according to the evidence given by the victim
at the trial.
The applicant's appeal (Berufung) and plea of nullity
(Nichtigkeitsbeschwerde) were rejected by the Supreme Court (Oberster
Gerichtshof) insofar as they related to the conviction of the two
counts of usury. In respect of the applicant's complaint that he was
wrongly convicted on the basis of the reading out of L.'s statements
made before the investigating judge, the Supreme Court pointed out
that the applicant had himself not requested to hear witness L. As
it had been impossible to ascertain L.'s whereabouts Sec. 252 (1) No. 1
of the Code on Criminal Procedure (Strafprozessordnung) allowed the
reading out of L.'s previous statements even without the accused's
consent. This provision reads in its relevant passages: "Records on
hearing of witnesses may be read out ... if the witnesses' whereabouts
are unknown".
Insofar as the applicant complained that L.'s statements were
considered by the trial court to be credible, although there had been a
certain contradiction, the Supreme Court pointed out that the applicant
himself admitted at the trial that he had received a commission both from
L. and S. immediately after the loan had been paid out.
COMPLAINTS
The applicant points out that, under Sec. 162 (2) of the Code
on Criminal Procedure, the investigating judge has to invite the
accused to participate at the hearing of the witness if it is probable
that the record of the hearing will have to be read out later at the
trial on one of the grounds stated in paragraph 1 No. 1 of the Section.
He considers it to be contradictory to acknowledge the accused's right
to be present at the hearing and nevertheless allow the reading out of
records in cases where the investigating judge has not, as in his
case, invited the accused to participate at the hearing of a witness.
In his opinion this practice violates Article 6 para. 3 (d) of
the Convention as L. was the only witness against him and as allegedly
no serious efforts had been made to obtain the appearance of this
witness at the trial.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 July 1987 and registered
on 21 August 1987.
On 9 May 1989 the Commission decided to invite the respondent
Government to submit observations on the admissibility and merits of
the application.
The Government's observations were received by letter dated
21 September 1989 and the applicant's observations in reply were dated
13 October 1989.
By letter of 11 November 1989 the respondent Government stated
that they did not request an oral hearing on admissibility.
THE LAW
The applicant has complained that his conviction by the Vienna
Regional Court on a count of usury was exclusively based on a
statement by the alleged victim, witness L., which had been made in
his absence before the investigating judge and was read out at the
trial because the witness had moved without leaving an address and
could not be found by the police.
It is true that Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention secures to everyone charged with a criminal offence the
right to examine witnesses against him.
The Government submit that the applicant was not only convicted
on the basis of the evidence given before the investigating judge by
L. but also on the basis of documentary evidence proving that a loan
was obtained for L. and S. and that in a similar case the applicant
had asked for and obtained a commission of some AS 15,000 for the
procurement of a loan in the amount of AS 40,000. L. was obliged to
tell the truth when testifying before the investigating judge while
the applicant had not invoked any particular circumstances that could
have cast doubts on the evidence given by L., necessitating a further
hearing of this witness before the trial court.
The applicant submits that it was not necessary for him to
apply for the hearing of witness L. because this witness had been
summoned by the Public Prosecutor and he could therefore expect that
the witness would be heard. He points out that the question whether
he requested and received an excessive commission from L. was decided
exclusively on the basis of her statements before the investigating
judge.
The Commission considers that the situation in the present
case raises a complex issue under Article 6 para. 3 (d) (Art. 6-3-d)
of the Convention which has to be decided on the merits. It follows
that the application is not manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
No other ground of inadmissibility can be established.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE without prejudging
the merits of the case.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy