Application No. 13161/87
Josef ARTNER
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 8 January 1991)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 14) ...................................... 1
A. The application
(paras. 2 - 5) ............................... 1
B. The proceedings
(paras. 6 - 9) ............................... 1
C. The present Report
(paras. 10 - 14) ............................. 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 24) ..................................... 3
A. The particular circumstances of the case
(paras. 15 - 24) ............................. 3
B. Relevant domestic law
(para. 24) ................................... 5
III. OPINION OF THE COMMISSION
(paras. 25 - 39) ..................................... 6
A. Complaint declared admissible
(para. 25) ................................... 6
B. Point at issue
(para. 26) ................................... 6
C. Compliance with Article 6 paras. 1 and 3 (d)
of the Convention
(paras. 27 - 38) ............................. 6
D. Conclusion
(para. 39) ................................... 8
Dissenting opinion by Mr. Trechsel,
joined by MM. Busuttil, Gözübüyük, Weitzel,
Sir Basil Hall and Mr. Rozakis ....................... 9
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 10
APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 11
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, Josef Artner, is an Austrian citizen, born in
1953. In the proceedings before the Commission he is represented by
Mr. Franz X. Gugg, a lawyer practising in Vienna.
3. The application is directed against Austria. The respondent
Government are represented by their Agent, Ambassador Helmut Türk, of
the Federal Ministry of Foreign Affairs.
4. The applicant's conviction on a charge of usury was based on
evidence given in pretrial proceedings in the absence of the applicant
and his defence counsel by the alleged victim whose statement was
later read out at the trial because at that time her whereabouts were
unknown. The applicant complains that the defence had no opportunity to
challenge the evidence. He considers that Article 6 paras. 1 and 3 (d)
of the Convention were violated.
B. The proceedings
5. The application was introduced on 6 July 1987 and
registered on 21 August 1987.
6. On 9 May 1989 the Commission decided to give notice of the
application to the respondent Government and to invite them to submit
observations in writing on the admissibility and merits of the
application. The Government submitted their observations on
21 September 1989 and on 13 October 1989 the applicant's lawyer
submitted observations in reply.
7. On 5 March 1990 the Commission declared the application
admissible.
8. The parties were then invited to submit, if they so wished,
further observations on the merits of the application. The applicant
submitted supplementary observations on 17 April 1990 and the
Government on 28 July 1990.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
11. The text of this Report was adopted on 8 January 1991 and
is now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 of the
Convention is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
14. The full text of the parties' submissions, together with
the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. 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.
16. 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, with
the assistance of a lawyer, previously laid against the applicant.
17. 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. during several months reimbursed the loan
without complaining but 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). He did not request that the two alleged victims
of the usury charges be heard as witnesses but denied having requested
and received a commission in the amount indicated by them. Meanwhile
L. had been summonsed to give evidence at the trial as witness for the
prosecution. When 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 to indicate whether L. was registered
under a new address. A new address was in fact obtained and L. was
summoned under this address.
18. 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 were ordered to see to it that L.
attend the new hearing but her whereabouts could not ascertained.
The applicant was so informed at the beginning of the hearing of
16 December 1986. It does not appear from the record (Verhandlungs-
protokoll) of this hearing that the applicant's defence insisted on
hearing this witness at the trial. It is only stated in the record
that at the end of the hearing 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 read out. Counsel for
the applicant requested a moderate sentence.
19. The Regional Court considered L.'s statement made before the
investigating judge 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 irrelevant as uncontestedly all the three had
been together at the credit institute and the money had been paid out
to them.
20. The Court also noted (at p. 12 of the judgment) that the
applicant's conduct as described by L. was very similar to the
description given by the victim in the other case and observed that
the two victims did not know each other. 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 that victim at the trial, which
the trial court found credible.
21. The applicant's appeal (Berufung) and plea of nullity
(Nichtigkeitsbeschwerde) were rejected by the Supreme Court (Oberster
Gerichtshof) on 26 May 1987 insofar as they related to the conviction
of the two counts of usury.
22. In respect of the applicant's complaint that he was wrongly
convicted on the basis of L.'s statements made before the
investigating judge, as read out at the trial, the Supreme Court
pointed out that, contrary to the applicant's allegations, efforts had
been undertaken to find witness L. but the result had been negative.
Furthermore the applicant had himself not requested to hear witness L.
As it had been impossible to ascertain L.'s whereabouts Sec. 252 para.
1 No. 1 of the Code of Criminal Procedure (Strafprozessordnung)
allowed the reading out of L.'s previous statements even without the
accused's consent.
23. With regard to the applicant's complaint that L.'s statements
were considered by the trial court to be credible, in spite of 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.
B. Relevant domestic law
24. Section 252 para. 1 No. 1 of the Code of Criminal Procedure reads
in its relevant passages:
(German)
"Protokolle über die Vernehmung von ...
Zeugen ... dürfen nur in folgenden Fällen
vorgelesen werden:
1. wenn ... ihr Aufenthalt unbekannt (ist) ..."
(English translation)
"(1) Records on hearing of ... witnesses ... may
be read out only in the following cases:
1. if ... their whereabouts are unkown ..."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
25. The complaint declared admissible was that the applicant's
conviction 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.
B. Point at issue
26. Accordingly, the issue to be determined in the present
application is whether there has been a violation of paragraph 3 (d),
taken together with paragraph 1, of Article 6 (Art. 6-3-d+6-1) of the
Convention, in respect of the above conviction.
C. Compliance with Article 6 paras. 1 and 3 (d) (Art. 6-1,6-3-d)
of the Convention
27. Article 6 para. 1 first sentence and para. 3 (d) (Art. 6-1, 6-3-d)
of the Convention provide:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ...
hearing ... by a ... tribunal.
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses
against him;
... "
28. The applicant submits that these two provisions have been
violated because he was convicted on one count of usury solely on
the basis of statements made to the investigating judge, and in
the complaint previously addressed to the Public Prosecutor, by
the alleged victim, L. The question to be decided by the criminal
court was whether the applicant had requested and obtained from the
witness a commission that was disproportionate and therefore usurious.
This question was not answered by the documents which the witness had
submitted in connection with the charges she had laid against him.
Nor was it answered in the affirmative by the fact that another victim
had at the trial confirmed to have been obliged to pay him a usurious
commission. The only evidence showing that he had requested and
received an excessive commission in the case of L. was the statement
made by this witness before the investigating judge and previously in
her submission to the police. As however the applicant never had an
opportunity to examine or have examined this witness and challenge her
credibility, he could not defend himself in an adequate manner. Under
no circumstances would a request to adjourn the proceedings in order
to obtain the attendance of witness L. have been granted by the trial
court. It was therefore sufficient that his defence declared not to
renounce the hearing of witness L. As she was a witness of the
prosecution, it would have been the task of the prosecution to see to
it that this witness was heard in a manner respecting the rights of the
defence. Article 252 of the Austrian Code of Criminal Procedure which
allows the reading out of and relying on statements made before an
investigating judge by a witness who is not available at the trial is
incompatible with the Convention.
29. The Government submit that on the one hand there was
documentary evidence before the trial court showing that witness L.
received, together with another person, a loan with the help of the
applicant who (as admitted by him) in turn received a commission. He
only contested the amount indicated by L. However, L.'s statement
was indirectly confirmed by the documentary evidence, by the evidence
given in court by another victim who had also had to pay the applicant
a usurious commission, and by the fact that he had previously
committed offences of the kind in question. In his detailed memorial
of 12 November 1986, the applicant's defence counsel had requested the
hearing of several witnesses but not of witness L. Neither in his
written pleadings nor at the trial did the applicant explicitly
request the examination of that witness, nor did he request an
adjournment for this purpose in accordance with Section 276 of the
Code of Criminal Procedure when he was informed on 16 December 1986
that witness L. would again not appear.
30. The Commission, recalling that the guarantees in paragraph 3
of Article 6 (Art. 6) are specific aspects of the right to a fair trial set
forth in paragraph 1, will consider the applicant's complaint under
paragraphs 3 (d) and 1 taken together (see the Windisch judgment of
27 September 1990, Eur. Court H.R., Series A no. 186, para. 23).
31. The Commission further notes that the admissibility of
evidence is primarily a matter for regulation by national law, and
that, as a rule, it is for the national courts to assess the evidence
before them (see, as the most recent authority, the above-mentioned
Windisch judgment at para. 25). Accordingly, its task under the
Convention is to ascertain whether the proceedings considered as a
whole, including the way in which evidence was taken, were fair (ibid.).
32. This requires, in principle, that all the evidence be produced
in the presence of the accused at a public hearing with a view to
adversarial argument. However, the use as evidence of statements
obtained at the pre-trial stage is not always in itself inconsistent
with paragraphs 3 (d) and 1 of Article 6 (Art. 6-3-d, 6-1), provided
the rights of the defence have been respected. As a rule, these
rights require that the defendant be given an adequate and proper
opportunity to challenge and question a witness against him, either
when the witness makes his or her statement or at a later stage of the
proceedings (Windisch judgment para. 26 and - as regards evidence
given before the investigating judge by a witness who later
disappeared - Isgró v. Italy, Comm. Report 14.12.89, paras. 52 and 55
- 59).
33. In the instant case witness L. had only been heard at the
investigation stage by the investigating judge and consequently she
was not examined by the trial court nor did the applicant or his
counsel have an opportunity to put questions to her and to challenge
her credibility.
34. The Government point out that the statements of witness L.
were analogous to those of another witness who was heard at the trial
as a victim of another offence of usury committed by the applicant, and
that he had previously been convicted of offences of the kind in question.
35. The Commission also notes that the hearing of 21 November 1986
was adjourned because the applicant's defence counsel did not renounce
the examination of witness L. and that, at the next hearing of
16 December 1986, the defence repeated the request for the taking of
evidence which had already been rejected and was obviously contained
in the memorial of 12 November 1986 (paras. 17 and 18 above).
36. The Commission does not find it necessary to determine whether
the conduct of the defence at the trial can be interpreted as a waiver
of the hearing of witness L.
37. The Commission first notes that the reason why L. was not
heard was that despite the efforts which had been made, it had not
been possible to find her and to ensure her presence at the trial.
In these special circumstances, it cannot be considered to have been
unfair to rely on the statements which L. had previously made,
although in the evaluation of those statements as evidence special
caution was required in view of the fact that the applicant had not
had the opportunity of putting questions to L.
38. However, the conviction in the present case was based not
only on L.'s statements but also on supporting evidence, in
particular the fact that the applicant was also found guilty of
another offence involving a conduct very similar to that of which he
had been accused by L.
C. Conclusion
39. The Commission concludes, by 9 votes to 7, that there has
been no violation of Article 6 para. 3 (d), taken together with
para. 1, (Art. 6-3-d+6-1) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Dissenting opinion by Mr. Trechsel,
joined by MM. Busuttil, Gözübüyük, Weitzel, Sir Basil Hall and Mr. Rozakis
To our regret, we are not able to follow the opinion of the
majority of the Commission in the present case. In our view there has
been a violation of Article 6 paras. 1 and 3 (d) of the Convention.
The case-law of the Court on the problem at issue is by now
well established: "In itself, the reading out of statements ... cannot
be regarded as being inconsistent with Article 6 paras. 1 and 3 (d) of
the Convention. But the use made of them as evidence must
nevertheless comply with the rights of the defence which it is the
object and purpose of Article 6 to protect. This is especially so,
where the person 'charged with the criminal offence', who has the
right under Article 6 para. 3 (d) 'to examine or have examined'
witnesses against him, has not had the opportunity at any stage in the
earlier proceedings to question the person whose statements are read
out at the hearing" (Unterpertinger, Series A no. 110, p. 14 para. 31;
see also Kostovski, no. 166, p. 20 para. 41; Delta, No. 191 para. 36).
In the present case, it is not contested that the statements
of Miss L. were read out at the hearing and that neither the applicant
nor his counsel had ever had an opportunity to challenge these
statements by putting questions directly or indirectly to the witness.
Therefore, neither the applicant nor the court were able "to test the
witnesses' reliability or cast doubt on [her] credibility" (Delta
para. 37).
The question then arises as to whether the court "based the
applicant's conviction mainly on the statements" concerned
(Unterpertinger, para. 33), whether the court, in other words, "relied
on" those statements (Bricmont, para. 84; Windisch, para. 31; Delta,
para. 37). In our view this question cannot be answered but in the
affirmative. In fact, there was no evidence whatsoever as to the
amount of the commission paid by Miss L. to the applicant except her
own contested statement. It is true that the court also referred to
the fact that the applicant had received an exaggerated commission in
the other case of usury of which he was found guilty. However, the
decisive element for his conviction in the case concerning Miss L. was
clearly her own statement. The final sentence of the Vienna Regional
Court after discussing the evidence reads as follows: "Den
glaubwürdigen Angaben der A.L. gegenüber erscheint die Verantwortung
des Angeklagten, er habe nur 3.000,- S erhalten, unglaubwürdig."
("In the face of the credible indications of A.L., the statement of
the accused according to which he had only received 3,000 S is not
credible.").
For these reasons we find that the applicant was "convicted
on the basis of 'testimony' in respect of which his defence rights
were appreciably restricted" (cf. Unterpertinger para. 33). We
therefore conclude that Article 6 paras. 1 and 3 (d) has been violated.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
6 July 1987 Introduction of the application
21 August 1987 Registration of the application
Examination of Admissibility
9 May 1989 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
21 September 1989 Government's observations
13 October 1989 Applicant's observations in reply
5 March 1990 Commission's decision to declare the
application admissible
Examination of the merits
28 March 1990 Decision on admissibility transmitted
to the parties
17 April 1990 Applicant's observations on the merits
28 May 1990 Government's observations on the merits
7 July 1990 Commission's consideration of the
state of proceedings
8 January 1991 Commission's deliberations on the
merits, final vote and adoption of
the Report
Full & Egal Universal Law Academy