EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 19125/91
Konrad Bechter
against
Austria
REPORT OF THE COMMISSION
(adopted on 18 October 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-28) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-27). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(para. 28). . . . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 29-35) . . . . . . . . . . . . . . . . . . . . .6
A. Complaint declared admissible
(para. 29). . . . . . . . . . . . . . . . . . . . .6
B. Point at issue
(para. 30). . . . . . . . . . . . . . . . . . . . .6
C. As regards Article 6 para. 1 of the Convention
(paras. 31-34). . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 35). . . . . . . . . . . . . . . . . . . . .7
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . .8
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, a police officer, is an Austrian citizen, born in
1941 and resident in Krumbach. He was represented before the
Commission by Mr. Ludwig Weh, a lawyer practising in Bregenz.
3. The application is directed against Austria. The respondent
Government were represented by Mr. F. Cede, Deputy Secretary General
and Legal Counsel of the Austrian Federal Ministry of Foreign Affairs.
4. The case concerns the complaint that in criminal proceedings
against him the applicant was not communicated, for his comments, the
observations ("croquis") which the Senior Public Prosecutor had
submitted in respect of the applicant's appeal against his conviction
and sentence. The applicant invokes Article 6 para. 1 and 3 (d) of the
Convention.
B. The proceedings
5. The application was introduced on 19 November 1991 and registered
on 22 November 1991.
6. On 13 October 1993 the Commission (First Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on the admissibility and
merits of the applicant's complaints relating to the appeal proceedings
and the submission of the "croquis".
7. The Government's observations were submitted on 14 January 1994.
The applicant replied on 9 March 1994.
8. On 5 April 1995 the Commission declared admissible the
applicant's complaint under Article 6 para. 1 of the Convention
relating to the use of the "croquis" in the appeal proceedings. It
declared inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 16 May 1995 and they were invited to submit such
further information or observations on the merits as they wished. No
further submissions were however received from the parties.
10. 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
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. C.L. ROZAKIS, President
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
12. The text of this Report was adopted on 18 October 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. 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.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. 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
16. On 29 January 1991 the applicant was convicted by the Feldkirch
Regional Court (Landesgericht) of defamation (Verleumdung). He was
sentenced to a fine of 360 day-rates in the amount of AS 200 each.
17. The court considered it to be established:
- that the applicant had told a colleague, police officer A.M.,
that police officer H.S. had, upon the occasion of local
festivities, allowed his brother P., who was under the influence
of alcohol, to enter his car and drive away.
The court found the above statement to be untrue and made with
the intent to wrongly incriminate H.S. with whom the applicant had had,
for many years, an acrimonious relationship.
18. The court further found that when heard in the above matter as
an accused suspected of having committed defamation:
- the applicant had told the investigating judge on
25 September 1990 that the alleged defamatory remark had been
made in good faith as one K.B. who had allegedly witnessed the
incident in question had informed him about it.
This statement made before the investigating judge was, according
to the court's findings likewise untrue and defamatory as it
incriminated K.B. of having wrongly denounced H.S. for having neglected
his duties as a police officer.
The findings of the court were based on evidence given against
the applicant by witnesses H.S., A.M., K.B., H.L. and A.S.
19. K.B. denied as a witness having incriminated H.S. vis-à-vis the
applicant. He only admitted that he had met the applicant and his
daughter at the local festivities in question and had conversed with
them for a while. In the course of the conversation he had mentioned
having passed in his own car that of P. who seemed to be drunk as his
face was all red. K.B. denied however having spoken of H.S., P.'s
brother, whom he had not seen at all.
20. H.L., a senior police officer, stated that when he questioned the
applicant about his remarks incriminating H.S. the applicant had
replied that he knew from hearsay only that H.S. had not interfered
when his brother decided to drive although he was drunk. The applicant
had however not been able to name a person who had given him the
information about H.S.
21. The applicant's daughter, A.S., gave evidence for her father
stating that K.B. had told her father in her presence that H.S. had not
interfered when his drunken brother P. drove away in his car. The
court considered however that this evidence was unreliable and
contradicted by the evidence given by K.B. who was considered to be
credible.
22. The applicant's wife stated as witness that K.B. had confirmed
in her and her daughter's presence on the occasion of a visit to their
house that he had given the applicant the information about H.S. and
his brother P. The trial court considered however that the applicant
had intentionally invited K.B. in order to fabricate evidence in his
favour. Neither the applicant's wife nor his daughter were considered
to be credible.
23. The defence requested an expert opinion on the question whether
it had been possible for K.B. to recognise P. in the circumstances
described by him as a witness and to see that his face was red. The
trial court rejected this request stating in an order given in the
course of the trial that it had itself enough experience to decide this
issue without the assistance of an expert.
24. The applicant lodged an appeal complaining of his conviction and
the sentence. He argued, inter alia, that his rights had been violated
in that his request to obtain an expert opinion had been rejected. He
also argued that there was not sufficient evidence to prove his guilt.
25. The Senior Public Prosecutor (Oberstaatsanwaltschaft) submitted
the following observations (croquis):
[Translation]
"The dismissal of the request to obtain a photometric expert
opinion did not violate the rights of the defence. Reasons for
the dismissal were given at the trial and did not need to be
repeated in the judgment. The request related to irrelevant
circumstances. The appeal on points of law must therefore fail.
The trial court's assessment of the evidence is extensive and
convincing. The reasons stated in the appeal do not give cause
to doubt the findings of the trial court.
The sentence likewise does not call for any correction."
[German]
"Durch die Abweisung des Beweisantrages auf Einholung eines
lichttechnischen Sachbefundes, die im Urteil nicht noch einmal
eigens begründet werden mußte, nachdem die Gründe dafür in der
Hauptverhandlung verkündet wurden, wurden Verteidigungsrechte des
Angeklagten nicht verletzt. Mit diesem Beweisantrag sollten
nämlich nicht entscheidungswesentliche Umstände bewiesen werden.
Es versagt daher die Nichtigkeitsberufung.
Die Beweiswürdigung des Erstgerichtes ist ausführlich und
überzeugend. Die Schuldberufung vermag keine Zweifel dagegen zu
erwecken.
Auch die Strafe gibt zu keiner Korrektur Anlaß."
26. These observations were not communicated to the defence. It is
stated in the minutes concerning the appeal hearing on 15 May 1991 that
a judge rapporteur summarised the case and issues and that subsequently
the pleadings of the Public Prosecutor and the defence were delivered.
27. On 15 May 1991 the appeal was rejected by the Innsbruck Court of
Appeal (Oberlandesgericht) on the ground that the dismissal of the
request for an expert opinion was unobjectionable as it was irrelevant
whether K.B. had in fact been able to see that P. was red-faced or
whether he only believed that he had seen this. The appellate court
further considered that the trial court's assessment of the available
evidence was unobjectionable. The sentence was considered to be
lenient and likewise unobjectionable.
B. Relevant domestic law
28. At the relevant time it had been a standing practice that the
Senior Public Prosecutor file a so-called croquis in such cases as
this was deemed appropriate. Such a croquis was not always and
automatically communicated to the defendant as it was considered that
the defence could safeguard its rights by requesting leave to inspect
the file under Section 82 of the Code of Criminal Procedure (see Eur.
Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211,
p. 28 para. 67).
In consequence of the Brandstetter judgment, Section 35 (2) of
the Austrian Code of Criminal procedure was amended as follows:
[Translation]
"(2) If the Public Prosecutor at the Court of Appeal submits his
observations on a plea of nullity (Nichtigkeitsbeschwerde), an
appeal or a complaint, the Court of Appeal shall communicate
these observations to the person against whom criminal
investigations are pending (the accused, the person concerned)
and shall inform his of his right to comment on these
observations within an adequate period of time to be determined
by the court. It can refrain from doing so, if the Public
Prosecutor confines himself to opposing without further
explanations the request set out in the appeal, if he only
submits a statement in favour of the person against whom criminal
investigations are pending or if the court allows the latter's
appeal."
[German]
" Nimmt der Staatsanwalt bei einem Rechtsmittelgericht zu
einer Nichtigkeitsbeschwerde, einer Berufung oder einer
Beschwerde Stellung, so hat das Rechtsmittelgericht dem
Beschuldigten (Angeklagten, Betroffenen) diese Stellungnahme mit
dem Bedeuten mitzuteilen, dass er sich binnen einer
festzusetzenden angemessenen Frist hiezu äußern könne. Diese
Mitteilung kann unterbleiben, wenn der Staatsanwalt sich darauf
beschränkt, dem Rechtsmittelbegehren ohne weitere Ausführungen
entgegenzutreten, er bloß zugunsten des Beschuldigten Stellung
nimmit, oder wenn dem Rechtsmittel des Beschuldigten Folge
gegeben wird"
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
29. The Commission has declared admissible the applicant's complaint
that in the appeal proceedings he was not given the opportunity to take
cognisance of and comment on the observations submitted by the Senior
Public Prosecutor.
B. Point at issue
30. The only point at issue is whether there has been a violation of
Article 6 para. 1 (Art. 6-1) in the appeal proceedings on account of
the fact that the Prosecution observations ("croquis") were not
communicated to the defence.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
31. The relevant part of Article 6 para. 1 (Art. 6-1) reads as
follows:
"In the determination ... of any criminal charge
against him, everyone is entitled to a fair and
public hearing ..."
The applicant alleges that on appeal he did not have a fair
hearing on the ground that the Prosecution's "croquis" with
observations on his appeal was not communicated to him.
The Government consider that communication had been unnecessary
as the croquis did not, in their opinion, contain any relevant new
argument and, in any case, arguments were discussed at the appeal
hearing.
32. The Commission recalls that the European Court of Human Rights
has found a violation of the Convention where the Senior Public
Prosecutor (Oberstaatsanwalt) filed submissions with the Court of
Appeal of which the defence knew nothing (Eur. Court H.R., Brandstetter
judgment of 28 August 1991, Series A no. 211, pp. 27-28, paras. 64-69).
On the other hand, where the defence obtain a copy of the submissions
of the Procurator General in advance of a hearing before the Supreme
Court, there may well be no violation of Article 6 (Art. 6) of the
Convention (Eur. Court H.R., Kremzow judgment of 21 September 1993,
Series A no. 268-B, p. 42, paras. 48-50).
33. In the present case the applicant did not receive the Senior
Public Prosecutor's submissions to the Innsbruck Court of Appeal at
all. It is true, as the Government submit, that the observations were
not, in any event, very detailed and did not contain any relevant new
argument. The principle of equality of arms does not, however, depend
on further, quantifiable unfairness flowing from a procedural
inequality: it is inherently unfair for the prosecution to make
submissions to a court of which the defence is unaware and on which the
defence has no opportunity to comment (see M.B.A. v. Austria, Comm.
Report 8.9.1994, pending before the European Court of Human Rights).
34. The Commission therefore finds that the passing of submissions
by the prosecution to the Court of Appeal in the present case was not
compatible with the principle of equality of arms.
CONCLUSION
35. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention by virtue of the passing of a statement to the Court of
Appeal by the Senior Public Prosecutor of which the applicant was not
aware.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy