In the case of Artner v. Austria*,
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 R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr B. Walsh,
Mr R. Macdonald,
Mr J. De Meyer,
Mrs E. Palm,
Mr F. Bigi,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 February and
25 June 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 39/1991/291/362. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 8 March 1991,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated in
an application (no. 13161/87) against the Republic of Austria lodged
with the Commission under Article 25 (art. 25) by an Austrian
national, Mr Josef Artner, on 6 July 1987.
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 object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 6 paras. 3 (d) and 1 (art. 6-3-d,
art. 6-1) taken together.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 22 March 1991,
Mr Matscher, having been duly delegated by the President, drew by
lot, in the presence of the Registrar, the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü, Mr B. Walsh, Mr J. De Meyer, Mrs E. Palm and
Mr F. Bigi (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43). Subsequently, Mr R. Macdonald, substitute
judge, replaced Mrs Bindschedler-Robert, who had resigned and whose
successor at the Court had taken up his duties before the hearing
(Rules 2 para. 3 and 22 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Austrian Government ("the Government"), the Delegate of the
Commission and the applicant's lawyer on the organisation of the
procedure (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the applicant's memorial on
3 June 1991 and the Government's memorial on 31 July. The
applicant, having declared that he did not intend to attend the
hearing, obtained the President's leave to lodge a memorial in
reply, which he filed on 30 September.
On 12 September the Secretary to the Commission had
informed the Registrar that the Delegate would make oral
submissions. On 30 January 1992 the Secretary produced various
documents from the proceedings before the Commission; he had been
asked to do so by the Registrar, who had acted on the instructions
of the President following a request from the applicant.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on
24 February 1992. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr H. Türk, Ambassador, Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mr S. Rosenmayr, Federal Chancellery,
Mr S. Benner, Federal Ministry of Justice, Advisers;
(b) for the Commission
Mr M.P. Pellonpää, Delegate.
The Court heard addresses by the above-mentioned
representatives, as well as their answers to its questions.
On the same day the Government provided to the Court other
documents whose production it had requested.
AS TO THE FACTS
6. Mr Josef Artner, who is an Austrian national, currently
resides in Vienna (Austria).
7. On 16 December 1986 the Vienna Regional Court
(Landesgericht) sentenced him to three years' imprisonment on two
counts of usury (Geldwucher) and on counts of aggravated fraud
(schwerer Betrug) and attempted aggravated fraud, embezzlement
(Veruntreuung) and aggravated theft (schwerer Diebstahl).
8. In one of the two cases of usury - the only one at issue in
the present proceedings - the judgment found the following facts to
be proven. In response to an advertisement in the press, Miss L.
had contacted the applicant in the course of the summer of 1982 with
a view to obtaining a loan. As she was unable to provide any
security, she abandoned the idea until she received a letter from
him in which he purported to charge her 2,350 schillings because the
negotiations had failed. He had then persuaded her to contract the
loan jointly with a certain S., a Yugoslavian national, whom she did
not know and who was to stand surety for the loan. On
24 August 1982 they both signed, as joint debtors, a loan agreement
for 60,000 schillings with a bank, which paid over the sum to them
immediately in Mr Artner's presence. The latter then demanded and
obtained 10,000 schillings as commission, whilst S. received 30,000
and Miss L. the remaining 20,000. The previous day the applicant
had talked her into agreeing to reimburse the monthly instalments
payable by S. with effect from March 1984. Shortly afterwards S.
disappeared, leaving Miss L. to pay off the debt in full.
9. Following a complaint laid by her, Miss L. was interviewed
first by the police and then by the investigating judge, on 5 May
and 4 July 1983. She was not, however, confronted with the
applicant. As the latter had also disappeared, the investigating
judge ordered, on 29 July 1983, that he be placed on the list of
wanted persons. On 2 January and 2 April 1985, at the border, and
on 17 April 1985, in Vienna, the police invited him to report to the
Vienna Regional Court in connection with the criminal proceedings
against him, but to no avail. Finally, he was extradited from
Germany on 19 June 1986.
On 9 October 1986 the Regional Court summoned Miss L. to
the hearing of 21 November 1986 as a prosecution witness. As she
had moved in the meantime, the court instructed the Federal Police
Department of Vienna to discover her new address, where it sent her
the summons on 6 November 1986. On the day fixed for the hearing
Miss L. failed to appear. Mr Artner had not himself asked that she
be called to testify, but he refused to waive his right to have her
called as a witness. Accordingly, the court adjourned the
proceedings to 16 December and ordered the police to make further
efforts to contact Miss L. and to bring her to the hearing. Their
efforts were unsuccessful as she had moved again, without leaving an
address. The court informed the applicant of this at the hearing on
16 December and then had Miss L.'s statements to the police and
before the investigating judge read out, pursuant to Article 252,
first paragraph, no. 1, of the Code of Criminal Procedure.
10. Mr Artner protested his innocence, claiming that he had
received only 3,000 schillings as commission. He proposed to call
as witnesses an employee of the bank which had lent the sum in
question and a representative of a consumers' association which
Miss L. had consulted before laying her complaint, but the court
decided not to take evidence from them because they had not been
present when the money had been shared out.
11. In the court's opinion the applicant could be convicted on
the basis of Miss L.'s statements, which it found to be credible,
and of the documents that she had produced in support. Although
they revealed a slight discrepancy concerning the person to whom the
bank had handed over the money, this was not deemed to be important
as all three had been present on that occasion. Moreover the
account of the events was very similar to that given by the victim
in the other case of usury (a Mrs S.), in which the accused had
allegedly received a commission of 15,000 schillings on a loan of
40,000 schillings.
Having regard to Mr Artner's eight previous convictions,
mostly for theft, the court refused to accept his version of events,
according to which he had received only 3,000 schillings. It
considered that the applicant had, on the contrary, taken advantage
of Miss L.'s distress and inexperience to obtain remuneration which
was manifestly disproportionate to the service rendered.
12. On 18 February 1987 Mr Artner filed with the Supreme Court
(Oberster Gerichtshof) an appeal (Berufung) and an application for a
declaration of nullity (Nichtigkeitsbeschwerde) against the judgment
of 16 December 1986. On 26 May that court dismissed the submissions
relating to the usury case. It took the view that he was not
well-founded in criticising the Regional Court for having dispensed
with hearing Miss L., whose appearance in court he had not,
moreover, himself requested. The two attempts which the court had
directed to be made to determine Miss L.'s whereabouts having
failed, Article 252, first paragraph, no. 1, empowered the court to
have the contested statements read out. The slight discrepancy
referred to above could legitimately have been regarded as
negligible since the applicant had admitted that he had received a
commission (Provision) from the two borrowers. As regards the
defence witnesses, the Regional Court had been justified in refusing
to hear their testimony as irrelevant. The Supreme Court did,
however, find fault with the lower court's judgment in a number of
respects of no relevance to the present proceedings.
13. The case was remitted to the Regional Court, which on
20 November 1987 reduced the applicant's total sentence to two and a
half years' imprisonment.
PROCEEDINGS BEFORE THE COMMISSION
14. Mr Artner lodged his application with the Commission on
6 July 1987. He complained that he had been convicted solely on the
basis of the statements of Miss L., whom the Regional Court had not
heard; he relied on Article 6 paras. 1 and 3 (d) (art. 6-1,
art. 6-3-d) of the Convention.
15. The Commission declared the application (no. 13161/87)
admissible on 5 March 1990. In its report of 8 January 1991
(Article 31) (art. 31), it expressed the opinion, by nine votes to
seven, that there had been no violation. The full text of its
opinion and of the dissenting opinion contained in the report is
reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 242-A of Series A of the Publications of the Court), but a
copy of the Commission's report is available from the registry.
_______________
AS TO THE LAW
16. The applicant alleged a breach of the following
requirements of Article 6 (art. 6) of the Convention:
"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;
..."
He maintained that the conviction he complained of had been
based solely on Miss L.'s statements to the police and before the
investigating judge, which had been read out at the hearing. It had
never been possible for him "to examine or have examined" the
complainant. Yet, at the hearing on 21 November 1986, he had
clearly indicated that he did not wish to waive his right to have
her called, all the more so because there were a number of
contradictions between the two sets of statements.
17. In the Government's contention, on the other hand, the
Vienna Regional Court had taken into account, in addition to the
contested statements, the documents relating to the loan agreement
and the very similar facts which had led to Mr Artner's conviction
in the other case of usury (see paragraph 11 above).
Furthermore, prior to the disputed judgment, numerous
attempts had been made to organise a confrontation. They had all
failed owing to the conduct of the two persons concerned themselves;
as both of them had moved house several times without leaving an
address, neither the applicant nor Miss L. had been able to receive
the summonses to appear, before the investigating judge in the
former's case and before the Regional Court in the latter's
(see paragraph 9 above).
Moreover, on 16 December 1986 Mr Artner had no longer
insisted, as he had done on 21 November, that Miss L. be called to
give evidence; he had merely requested that defence witnesses be
called (see paragraphs 9-10 above).
18. The Commission subscribed in substance to the Government's
view.
19. The guarantees in paragraph 3 of Article 6 (art. 6-3) are
specific aspects of the right to a fair trial set forth in
paragraph 1 (art. 6-1); the Court considers it appropriate to
examine the complaint under the two provisions taken together (see,
inter alia, the Asch v. Austria judgment of 26 April 1991, Series A
no. 203, p. 10, para. 25).
Although the Regional Court did not hear Miss L., she
should, for the purposes of Article 6 para. 3 (d) (art. 6-3-d), be
regarded as a witness - a term to be given an autonomous
interpretation (see the same judgment, p. 10, para. 25) - because
her statements, as taken down in writing and then read out at the
hearing, were before the court, which took account of them.
20. In the present case it should be noted in the first place
that from June 1983 to June 1986 the applicant's absence made it
impossible to organise a confrontation between him and Miss L. From
the moment when the proceedings were first instituted, he had proved
impossible to trace; indeed so much so that in July 1983 the
investigating judge had directed that he be placed on the list of
wanted persons. Despite the fact that the police had on several
occasions invited Mr Artner to contact the Vienna Regional Court in
connection with the proceedings brought against him, the
investigating judge had to wait until he was extradited on
19 June 1986 before he could question him (see paragraph 9 above).
21. Shortly afterwards Miss L. disappeared in her turn. The
Regional Court twice instructed the police to make every effort to
find her, even adjourning the hearing in order to allow the
inquiries sufficient time to bear fruit, but to no avail (ibid.).
It would of course have been preferable if she could have testified
in court, but her failure to appear did not in itself make it
necessary to halt the prosecution - the appropriateness of which,
moreover, falls outside the scope of the Court's review -, provided
that the authorities had not been negligent in their efforts to find
the persons concerned.
22. As it was impossible to secure Miss L.'s attendance at the
hearing, it was open to the national court, subject to the rights of
the defence being respected, to have regard to the statements
obtained by the police and the investigating judge, in particular in
view of the fact that it could consider those statements to be
corroborated by other evidence before it.
23. That other evidence included the documents concerning the
loan agreement, and notably Mr Artner's letter demanding that
Miss L. pay him the sum of 2,350 schillings following their first
unsuccessful discussions, or again the undertaking which he had made
her sign to reimburse with effect from March 1984 the monthly
instalments payable by S. (see paragraph 8 above). There were in
addition the applicant's criminal record and his conviction -
against which he did not appeal (see paragraphs 8 and 11 above) - in
the other case of usury on similar facts. Although this evidence
did not provide a precise indication as to the amount of commission
received, it could nevertheless, in the victim's absence, help the
judges to form their opinion.
24. It follows that Miss L.'s contested statements were not the
only evidence on which the Regional Court based its finding.
Accordingly, the fact that it was impossible to examine her
at the hearing did not, in the circumstances of the case, infringe
the rights of the defence to such an extent that it constituted a
breach of paragraphs 1 and 3 (d) of Article 6, taken together
(art. 6-1, art. 6-3-d).
FOR THESE REASONS, THE COURT
Holds by five votes to four that there has been no
violation of paragraphs 1 and 3 (d) of Article 6, taken
together (art. 6-1, art. 6-3-d).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 28 August 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the dissenting
opinion of Mr Thór Vilhjálmsson and the joint dissenting opinion of
Mr Walsh, Mr Macdonald and Mrs Palm are annexed to this judgment.
Initialled: R.R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON
The case-law of our Court shows that it is not always
possible to apply strictly the important rule set out in
Article 6 para. 3 (d) (art. 6-3-d) of our Convention, despite the
fact that it is stated in this very same paragraph that the rights
set out therein are minimum rights. Unfortunately, the
interpretation of this rule takes our Court into forbidden territory
so to say, i.e. the assessment of evidence, which should be the
reserved domain of the national courts. I consider that there are
insufficient reasons in the present case for departing from the rule
cited. The applicant clearly did not have an opportunity to examine
the witness Miss L., who was only heard by an investigating judge.
Neither the applicant nor his lawyer was present on that occasion.
It may perhaps be said that her testimony was not the only evidence
taken into account. Nevertheless, it seems beyond doubt that it was
by far the most important, so that this case cannot, in my opinion,
be distinguished from the Unterpertinger case.
I am therefore of the opinion that there was a violation.
JOINT DISSENTING OPINION OF JUDGES WALSH, MACDONALD AND PALM
1. In our opinion the procedure adopted by the Austrian court
amounted to a violation of Article 6 paras. 1 and 3 (art. 6-1,
art. 6-3) of the Convention.
2. The right of the applicant to question the evidence of
Miss L., by way of examination as guaranteed by Article 6 (art. 6),
was not vindicated. It was alleged that she had disappeared and
that the police had been unable to trace her, in contrast to their
success in securing the extradition of the applicant to stand trial.
The failure of the police to ensure the presence of the complainant
to give evidence in person at the trial did not justify her untested
written statement being admitted in evidence. Its admission was
very prejudicial to the applicant at his trial and in fact was
relied on by the trial court as evidence of his guilt. That there
was other incriminating evidence is beside the point. It appears
that without the use of the statement the conviction could not have
been obtained. If the case were otherwise, there would have been no
need to admit the statement. The applicant, through no fault of
his, was deprived of his right to examine Miss L. as to the accuracy
and/or truth of her obviously damaging statement which filled the
gap in the evidence necessary to secure the conviction. In the
event the prejudicial effect remained uncorrected.
3. We also agree with the reasoning in the dissenting opinion
expressed in the report of the Commission by Vice-President Trechsel
and his five colleagues.
Full & Egal Universal Law Academy