AS TO THE ADMISSIBILITY OF
Application No. 16156/90
by Karl BLECHA
against Austria
The European Commission of Human Rights sitting in private
on 7 June 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
Mr. H.C. KRÜGER, 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 19 January 1990
by Karl BLECHA against Austria and registered on 13 February 1990
under file No. 16156/90;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1933. He is a
market researcher and was Minister of the Interior from May 1983 until
February 1989. He is represented before the Commission by Mr. H.
Wildmoser, lawyer, of Linz. The facts of the application, as submitted
by the applicant's representative, may be summarised as follows.
On 7 March 1985 the Ministry of the Interior issued to Noricum
Ges.mbH ("NORICUM"), a wholly owned subsidiary of the State-owned
VOEST-Alpine Ag ("VOEST"), an export licence for the export
of specified arms and munitions to Libya. Rumours that the arms and
munitions were not in fact bound for Libya but for Iran, at the time
at war with Iraq, led to an internal investigation which did not
produce any material which could justify a prosecution or
revocation of the licence. The State Prosecution Service declined to
take up criminal proceedings instituted by private parties against
managers of VOEST and NORICUM.
On 2 March 1989 criminal proceedings were instituted against
18 managers of NORICUM and VOEST, alleging jeopardising Austrian
neutrality (Neutralitätsgefährdung), contrary to Article 320 para. 3
of the Criminal Code (Art. 320 Z13 StGB). Amongst other
applications, the State Prosecution Service requested that the
applicant be heard as a witness.
On 10 July 1989 criminal proceedings were instituted, on the
request of a private party, against the applicant, the then Federal
Chancellor and the then Minister for Foreign Affairs, alleging
suspicion of misuse of official authority and jeopardising Austrian
neutrality (Verdacht des Missbrauches der Amtsgewalt und
Neutralitätsgefährdung) contrary to Articles 302 and 320 para. 3 of
the Criminal Code. The applicant was alleged to have known of and
condoned the export of the arms and munitions to Iran.
Further proceedings were instituted by a private party (L.)
against V. and against the national leadership of a political party
(P.) alleging defamation and a failure to rectify adequately (üble
Nachrede and Nichtveröffentlichung einer Entgegung oder einer
nachträglichen Mitteilung) contrary to Article 111 of the Criminal
Code and Section 14 (1) of the Media Act (Mediengesetz).
By notice (Verständigung) of 24 August 1989 the applicant was
informed that he should be prepared to appear as witness in the
proceedings against 18 managers of NORICUM and VOEST, but that the
date and subject-matter of his appearance could not yet be fixed. The
applicant's request of 2 November 1989 that the notice be withdrawn
was refused by the Linz Regional Court (Landesgericht) on 13 November
1989. The applicant had argued that he had to be considered as a
"co-accused" (Mitbeschuldigter) in the proceedings against the 18
managers because the cases had the same factual basis. The applicant
contended that although technically the proceedings against him were
separate, these in fact related to the same complex of events. The
court did not accept these arguments. It found that the proceedings
against the applicant involved allegations of abuse of official
authority, and for this reason alone could not be considered as
identical with the proceedings against the 18 managers. Moreover, the
proceedings against the applicant had only been instituted after the
18 managers had been accused. The court accepted that it was not
permissable that a person should take part both as witness and
defendant in a trial, but this was not the case. The court found that
Article 153 of the Code of Criminal Procedure (see below) relates only
to specific questions, and requires the court to consider the
conflicting interests - it was clear that in order to balance the
conflicting interests the person concerned had to be present. The
court concluded that the applicant would have to be present at the
trial, and would then have to decide whether to invoke Article 153.
On 29 September 1989 and 3 October 1989 the applicant was
summoned by the Vienna Regional Court (Landesgericht) to appear on 10
October 1989 as a witness at the trial of V. and P.
On 10 October 1989 the applicant was asked whether he had
spoken with L. about the rumours concerning VOEST's and NORICUM's
business in Iran. He was also asked for L.'s comments. He declined to
reply, invoking Article 153 of the Code of Criminal Procedure. The
event considered Article 153, paragraph one of which reads, as far as
relevant, as follows:
(Original)
"§153. (1) Wenn die Ablegung des Zeugnisses oder die
Beantwortung einer Frage für den Zeugen ... Schande oder
die Gefahr strafgerichtlicher Verfolgung ... mit sich
brächte, und er deshalb das Zeugnis verweigert, so soll er
nur zum Zeugnis verhalten werden, wenn dies wegen der
besonderen Bedeutung seiner Aussage unerlässlich ist."
(Translation)
"If giving evidence or replying to a question would harm the
witness's ... reputation or entail a risk of criminal
proceedings against [him], ... and if he refuses to give
evidence for this reason, he shall only be compelled to give
evidence if the special importance of his testimony makes
this essential."
In balancing the conflicting interests, the court found of
particular relevance the importance of the case in the public sphere
and the likelihood that the applicant, and he alone, would be able to
shed light on it. Moreover, the court found that it could reasonably
expect the applicant to answer the questions as he was a former
Minister of the Interior and could be expected to behave particularly
responsibly.
The court also stated that, if it granted his request not to
be compelled to give evidence now, he would perhaps never give
evidence, as even if the proceedings against him were not continued
with, there was always the possibility that they would be re-opened.
The court fined the applicant AS 8.000 for refusing to give
evidence (Article 160 of the Code of Criminal Procedure).
The applicant's appeal (Beschwerde) to the Vienna Court of
Appeal (Oberlandesgericht) was rejected as no appeal lay in such
circumstances.
COMPLAINTS
The applicant alleges violation of Article 6 paras. 1 and 3 of
the Convention.
He complains that he is required to give evidence in
proceedings which were formally against third parties, but in fact
concern the same events as those at the basis of proceedings against
him. In such a situation he is required to run the risk either of
incriminating himself or of perjuring himself.
In particular, the applicant alleges that, as the documents in
his case were contained in the files of the case involving the 18
managers of NORICUM and VOEST, it is clear that the proceedings
against him are identical with those against the managers. He points
to the inadequate position of a person who is a co-accused or a de
facto co-accused (materiell Mitbeschuldigter) in Austrian law.
The applicant considers that, because he has no remedy in
respect either of the notice to attend in the case against the 18
managers or in respect of the fine in the case against V. and P.,
he must be regarded as having exhausted domestic remedies.
THE LAW
The applicant alleges violation of Article 6 paras. 1
(Art. 6-1) and 3 (Art. 6-3) of the Convention which provide, as far as
relevant, as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law.
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(b) to have adequate time and facilities for the
preparation of his defence;"
To the extent that the applicant complains about the
proceedings against him for refusal to give evidence in L.'s
private prosecution against V. and P., and the attendant fine, and
even assuming such proceedings relate to the determination of a
criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention, the Commission recalls that, in accordance with
Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set
out in the Convention. The Commission refers, on this point, to its
established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3
pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No.
7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). Accordingly, the
applicant may not complain as to the result of those proceedings, and
he makes no specific procedural complaints.
This part of the application is therefore manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
To the extent that the applicant's complaint relates to the
imposition of a fine in a context of proceedings in which he is
involved, the Commission notes that the proceedings in question must
be either the proceedings against him or, if his contentions
concerning his status as "de facto co-accused" (materiell
Mitbeschuldigter) are accepted, the proceedings by L. against V. and
P. and the proceedings against the 18 managers of NORICUM and VOEST.
The Commission notes that all three sets of proceedings are still
pending, and recalls that it can only assess the fairness of criminal
proceedings when it is able to consider them in their entirety (cf.
No. 9000/80, Dec. 11.3.82, D.R. 27 p. 127, with further references).
Moreover, an acquittal will normally be regarded as rectifying
procedural errors alleged to have violated the Convention (cf. No.
5572/72, Dec. 8.7.73, D.R. 1 p. 44; No. 8083/77, Dec. 13.3.80, D.R. 14
p. 223). Until the relevant proceedings have finished, with the
exhaustion of domestic remedies as required by Article 26 (Art. 26) of the
Convention, it is not possible to consider whether, either in respect
of the proceedings formally against the applicant, or in respect of
the complex of proceedings involving the applicant, Article 6 (Art. 6)
has been complied with in this respect, or whether any alleged
violations that may have taken place have been remedied by a
subsequent acquittal.
This part of the application is therefore premature and must
be rejected as manifestly ill-founded in accordance with Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy