AS TO THE ADMISSIBILITY OF
Application No. 16413/90
by Rudolf DANZINGER
against Austria
The European Commission of Human Rights sitting in private on 31
March 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
J.-C. GEUS
M. NOWICKI
Mr. K. ROGGE, Secretary to the Second Chamber
assisted by Mr. W. PEUKERT.
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 March 1990 by
Rudolf DANZINGER against Austria and registered on 6 April 1990 under
file No. 16413/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1944 and living in
Vienna. He is represented by Mr. G. Zanger, a lawyer practising in
Vienna.
It follows from the applicant's statements and the documents
submitted that on 13 March 1989 the applicant was convicted by the
Vienna Regional Court (Landesgericht) of having on 17 June 1986 given
false evidence when heard as a witness in criminal investigation
proceedings against Mr. K. S., a former Federal Minister of Buildings
(Bautenminister). The investigation proceedings in which the applicant
had given evidence apparently concerned illegal property transactions
according to which the minister's wife had bought a villa at a price
far below its real value. The applicant had been involved in the
transaction on the vendor's side. The sale had been fixed in a
provisional agreement but was apparently not realised.
The applicant, when heard as a witness, denied being implicated
in the matter. He alleged that, on the contrary, he prevented the
sale.
Having heard ten witnesses, the Regional Court came to the
conclusion that the applicant's prior statements given as a witness
were untrue and that it had been the applicant who initiated the sales
agreement in question.
On 19 September 1989, the Vienna Court of Appeal
(Oberlandesgericht) rejected the applicant's appeal and plea of
nullity. Prior to the hearing of the appeal the Public Prosecutor at
the Court of Appeal (Oberstaatsanwaltschaft) had submitted
observations. In an order of 23 August 1989 fixing the hearing for the
19 September 1989 it was stated that along with the summons the
applicant should be informed that he could inspect the Public
Prosecutor's observations which were included in the court file.
Insofar as the applicant had complained that he had been heard in the
prior criminal proceedings against S. despite the fact that he risked
incriminating himself, the appellate court pointed out that the
investigating judge had at the hearing in question informed the
applicant about his right to refuse to give evidence in accordance with
Section 153 of the Code on Criminal Procedure (StPO). Furthermore, at
the relevant time there had been no objective reasons to consider the
applicant as a suspect rather than a witness.
COMPLAINTS
The applicant submits that his conviction violates the principle
of a fair trial and that he was obliged to give evidence in a matter
in which he was himself involved.
Furthermore, he submits that the appeal proceedings were unfair
because not only the Public Prosecutor at the Regional Court, but
subsequently also the Public Prosecutor of the Court of Appeal were
requested to submit observations. In the applicant's submission it is
unusual that the Public Prosecutor of the Court of Appeal is requested
to submit observations when, as was done in his case, the Public
Prosecutor at the Regional Court does not consider it necessary to
submit such observations. He furthermore submits that the Public
Prosecutor at the Court of Appeal received the draft judgment of the
judge rapporteur and he considers that in these circumstances the
principle of equality of arms as guaranteed by Article 6 para. 1 of the
Convention was violated. He points out that the Constitutional Court
(Verfassungsgerichtshof) also objected to the practice in question.
THE LAW
1. The applicant complains that he did not have a fair trial in that
he was convicted on account of evidence he was obliged to give although
he risked thereby incriminating himself.
Article 6 para. 1 (Art. 6-1) of the Convention secures to
everyone charged with a criminal offence the right to a fair hearing.
The obligation to testify may under certain circumstances amount
to a violation of the right to a fair hearing, in particular where
someone is forced to give evidence in a matter in which criminal
proceedings are likewise pending against him or are likely to be
instituted against him (cf. K. v. Austria, Comm. Report 13.10.92).
However, the applicant is not prosecuted on account of the matter on
which he was questioned as a witness but on account of having made
false statements. In addition, the Commission notes that when heard
as a witness the applicant could under Section 153 of the Austrian Code
on Criminal Procedure refuse to give evidence. He did not, however,
avail himself of this possibility.
Insofar as the applicant complains of the first instance criminal
proceedings against him, his statements and the documents submitted
therefore do not disclose that his right to a fair hearing was in any
way impaired. To this extent the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains about the appeal proceedings
which in his opinion violated the principle of equality of arms, as
guaranteed by Article 6 para. 1 (Art. 6-1), in that the Prosecutor at
the Court of Appeal was given the possibility to submit comments on his
appeal and saw the Judge Rapporteur's draft decision relating to his
appeal before the appeal was determined.
However, the applicant has himself referred to the case law of
the Austrian Constitutional Court according to which draft judgments
may not be made available to the public prosecution. The Commission
knows from other cases brought against Austria that in principle the
draft decision of the judge rapporteur is only established after the
observations by the Public Prosecution have been received and is not
communicated to the Public Prosecution (No. 13129/87, Frick v. Austria,
Dec. 15.10.91 to be published in D.R. 71). The applicant has not
submitted any evidence tending to show that contrary to this general
practice the judicial authorities proceeded otherwise in the present
case.
Insofar as the applicant complains that the appellate court's
draft judgment was prepared before the hearing of the appeal took place
the Commission has already found this practice to be unobjectionable
(Kremzow v. Austria, Comm. Report, 20.5.92, pending before the European
Court of Human Rights, with further reference in para. 110).
It follows that this part of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
For these reasons the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy