EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 22342/93
Erol Dür
against
Austria
REPORT OF THE COMMISSION
(adopted on 16 October 1996)
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. 16-26) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-25). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(para. 26). . . . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 27-38) . . . . . . . . . . . . . . . . . . . . .6
A. Complaint declared admissible
(para. 27). . . . . . . . . . . . . . . . . . . . .6
B. Point at issue
(para. 28). . . . . . . . . . . . . . . . . . . . .6
C. Article 6 of the Convention
(paras. 29-37). . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 38). . . . . . . . . . . . . . . . . . . . .8
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . .9
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 is a Turkish citizen, born in 1964 and resident in
Vienna. He was represented before the Commission by Mr. H. Pochieser,
a lawyer practising in Vienna.
3. The application is directed against Austria. The respondent
Government were represented by their agent, Ambassador F. Cede, Head
of the International Law Department of the Federal Ministry for Foreign
Affairs.
4. The case concerns the refusal of the Austrian courts to summon
and hear the applicant's brother as witness in criminal proceedings
instituted against the applicant. The applicant invokes Article 6
paras. 1 and 3 (d) of the Convention.
B. The proceedings
5. The application was introduced on 17 June 1993 and registered on
26 July 1993.
6. On 12 October 1994 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 its admissibility and
merits.
7. The Government's observations were submitted on 23 January 1995
after an extension of the time-limit fixed for this purpose. The
applicant replied on 17 march 1995.
8. On 16 January 1996 the Commission declared admissible the
applicant's complaint about the alleged unfairness of the criminal
proceedings against him. It declared inadmissible the remainder of the
application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 30 January 1996 and they were invited to submit such
further information or observations on the merits as they wished. No
such observations were submitted.
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:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
12. The text of this Report was adopted on 16 October 1996 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 21 November 1991 the chief of the Deutsch Wagram Police
Station (Postenkommandant) laid a criminal information against the
applicant and his brother I. with the Korneuburg Public Prosecutor's
Office (Staatsanwaltschaft). According to the criminal information,
on 21 November 1991, at 5.20 hours, the applicant's brother had tried
to resist his arrest, which had been ordered with a view to his
deportation to Turkey, by hitting and kicking the police officers
concerned. The applicant had also resisted public authority in that
he too had attacked the police officers. The applicant and his brother
had finally been arrested. The applicant's brother had then been
brought to the airport and at 9.30 hours had been handed over to the
airport police for deportation. At about 11.30 hours the detention
order (Schubhaftbescheid) had been served on counsel for the
applicant's brother. The deportation had taken place at 13.15 hours.
The applicant himself had been released at 11.30 hours. The Public
Prosecutor, who had been informed of the events by telephone, had made
no objections to the deportation of the applicant's brother, as he
found that any possible criminal prosecution could be taken over by the
Turkish authorities.
17. On 26 November 1991 the Korneuburg Public Prosecutor filed a bill
of indictment against the applicant charging him with attempted
resistance to public authority (versuchter Widerstand gegen die
Staatsgewalt). The Public Prosecutor requested that the five police
officers concerned and the applicant's brother be heard as witnesses
at the trial.
18. On 17 January 1992 the applicant, who was then assisted by
counsel, requested that his brother and A.T., who had been present at
the events on 21 November 1991, be heard as witnesses.
19. On 23 March 1992 the trial (Hauptverhandlung) of the applicant
took place before the Korneuburg Regional Court (Kreisgericht). In the
course of the trial the Regional Court heard the five police officers
and A. T. as witnesses. As regards the events in the morning of
21 November 1991, A.T. stated that after the police officers had
arrived he had left to make a telephone call. On his return he had told
the applicant, who had a heated discussion with the police officers,
to calm down and had then started to prepare breakfast. He had not
paid attention to what was going on around him. The applicant's
counsel requested again that the applicant's brother be heard as a
witness. This request was refused by the Regional Court, which found
that the applicant's brother had been deported to Turkey and therefore
had to be considered as an "unobtainable means of evidence" (nicht
greifbares Beweismittel).
20. On the same day the Regional Court convicted the applicant of
attempted resistance to public authority and sentenced him to four
months' imprisonment suspended for a probationary period of three
years. The Regional Court, having regard to the evidence taken, found
that the applicant had hit and kicked the police officers who carried
out his brother's and his own arrest. The arrest had initially been
carried out by two police officers, who, in view of the resistance, had
called for reinforcement. Subsequently three more police officers had
arrived and it had taken three police officers to break the applicant's
resistance and to carry out his arrest.
21. On 24 June 1992 the applicant introduced an appeal with the Court
of Appeal. He submitted that the Regional Court had wrongly refused
to hear his brother as a witness for the defence. He submitted further
that in the meantime his brother had introduced a complaint with the
Independent Administrative Panel (Unabhängiger Verwaltungssenat)
complaining that his arrest and deportation to Turkey had been
unlawful.
22. On 29 June 1992 the Lower Austrian Independent Administrative
Panel, upon the complaint by the applicant's brother about his arrest,
subsequent detention and deportation to Turkey, decided that the
applicant's brother's arrest on 21 November 1991 at 5.30 hours and his
detention until 11.30 hours, when the detention order was served on the
lawyer, had been unlawful and dismissed the remainder of the complaint.
The Administrative Panel found that, at the time of the arrest of the
applicant's brother, the order for detention with a view to his
deportation had not yet been served on the lawyer of the applicant's
brother. Therefore the arrest and the detention until 11.30 hours had
been unlawful. The subsequent detention and the deportation to Turkey,
however, had been based on a lawful and enforceable detention order and
on an enforceable residence prohibition.
23. On 25 August 1992 a hearing took place before the Court of Appeal
on the applicant's appeal, in the presence of the applicant and his
counsel. The applicant filed the decision of the Administrative Panel
of 29 June 1992.
24. On the same day the Court of Appeal dismissed the applicant's
appeal against his conviction but replaced the prison sentence by a
fine of 100 daily rates of ATS 100 each.
25. The Court of Appeal found that the Regional Court had acted
correctly when refusing to hear the applicant's brother as a witness.
His brother had not been a means of evidence available to the court as
he was staying in Turkey and a residence prohibition in Austria had
been imposed on him. In particular it was not for the trial court to
arrange, pursuant to Section 6 of the Aliens Act, that the enforcement
of the residence prohibition be suspended for the purposes of the
trial. Furthermore the Court of Appeal noted that the public
prosecutor had agreed to the applicant's brother's deportation because
he had found that any possible criminal prosecution could be taken over
by the Turkish authorities.
The Court of Appeal had no doubts as to the Regional Court's
assessment of evidence, which it found sufficient in that, based on the
personal impression the witnesses had made on the Regional Court, it
had provided the main reasons for considering the witnesses credible,
and was in accordance with the principles of logic and the contents of
the file. The Court of Appeal further found that the Administrative
Panel's decision of 29 June 1992 had no effect on the lawfulness of the
applicant's own arrest, which was not based on the detention order.
B. Relevant domestic law
26. Section 6 para. 1 of the Aliens Police Act
(Fremdenpolizeigesetz), as in force at the relevant time, provides as
follows:
[Translation]
"An alien on whom a residence prohibition has been imposed must
leave the area to which the prohibition applies within a week
after the decision has become legally effective. While the
prohibition is in force, he may not return to the area without
official permission."
[German]
"Der Fremde, gegen den ein Aufenthaltsverbot erlassen worden ist,
hat das Gebiet, in dem ihm der Aufenthalt verboten ist, innerhalb
einer Woche nach Rechtskraft des Bescheides zu verlassen. Er
darf dieses Gebiet während der Geltungsdauer des
Aufenthaltsverbotes ohne Bewilligung nicht wieder betreten."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
27. The Commission has declared admissible the applicant's complaint
about the alleged unfairness of the criminal proceedings conducted
against him.
B. Point at issue
28. Accordingly the issue to be determined is whether there has been
a violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the
Convention.
C. Article 6 (Art. 6) of the Convention
29. Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention,
insofar as relevant, read as follows:
"1. In the determination of ... of any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law. ...
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 ..."
30. The applicant maintains that the criminal proceedings conducted
against him were unfair because the Austrian courts refused to summon
his brother as witness for the defence. The Regional Court heard as
witnesses only several police officers and A.T., who, according to his
statement, had not himself witnessed the events or could not remember
them. Therefore his brother was the only eye witness who could have
exonerated him. The Regional Court also did not consider the
statements of his brother to be irrelevant for the proceedings. He
contradicts the Regional Court's reasoning that this witness was an
unobtainable means of evidence.
31. In the applicant's view it would have been preferable to have his
brother questioned in Austria. The Austrian courts could have summoned
his brother to appear at the trial. In this respect the Government's
description of the legal situation under Section 6 para. 1 of the
Aliens Police Act is misleading. It is true that the courts themselves
could not have granted permission to the applicant's brother to return
to Austria nor could they have requested the administrative authorities
to issue a permission under Section 6 para. 1 of the Aliens Police Act
to the applicant's brother. However, if the Austrian courts had
summoned the applicant's brother, he could have requested the
administrative authorities to grant him a permission to re-enter
Austria under Section 6 para. 1 of the Aliens Police Act. According
to this provision a person on whom a residence prohibition has been
imposed may be allowed to re-enter Austria for a short stay if this is
necessary in the private or public interest. According to case-law of
the Administrative Court the necessity to appear before a court is a
valid reason for applying for a permission under Section 6 para. 1 of
the Aliens Police Act.
32. The Government submit that according to the Convention organs'
case-law Article 6 para. 3 (d) (Art. 6-1, 6-3-d) of the Convention does
not grant an unlimited right to question or summon defence witnesses.
The trial court can refuse to hear witnesses if it finds that the
statements expected are not relevant to the establishment of the
truth. In the present case the Regional Court heard six witnesses,
including A.T., who had been called as witness for the defence. Not
even A.T. supported the applicant's defence according to which he had
not resisted the police officers and had remained calm throughout the
events. Rather, A.T. stated that at a certain moment he had told the
applicant to calm down. In these circumstances the Austrian courts
could reasonably have concluded that the statements of the applicant's
brother would have been irrelevant to the case.
33. Furthermore the Austrian courts had found correctly that the
applicant's brother did not offer an available means of evidence. The
courts could have asked the Turkish authorities to question the
applicant's brother under letters rogatory, but since the courts would
not have got a direct impression of the witness and such proceedings
were very lengthy this would not have been a very effective means of
gathering evidence. Moreover, the Austrian courts were unable to
summon the applicant's brother to appear at the trial because a
residence prohibition had been imposed on him. The courts were not
competent to lift the residence prohibition nor could they formally
request the competent administrative authorities to issue a permission
under Section 6 para. 1 in fine of the Aliens Police Act to the
applicant's brother allowing him to re-enter Austria.
34. The Commission recalls that the guarantees contained in
paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific
aspects of the general concept of fair trial set forth in paragraph 1
of this Article. In the circumstances of the present case, it will
consider the applicant's complaint under the two provisions taken
together (see Eur. Court HR, Isgro v. Italy judgment of
19 February 1991, Series A no. 194-A, p. 12, para. 31).
35. The Commission recalls further that Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention does not give an absolute right to the
examination of every witness proposed by the defence. In particular
it is in the trial court's discretion to refuse to take evidence which
is considered irrelevant and unobtainable (Eur. Court HR, Engel and
others v. the Netherlands judgment of 6 June 1976, Series A no. 22,
p. 38, para. 91; No. 8417/78, Dec. 4.5.79, D.R. 16 p. 200;
No. 18962/91, Dec. 30.6.93, unpublished).
36. The Commission observes that the Austrian courts did not address
the issue of the relevance of the evidence to be given by the
applicant's brother. Indeed, their refusal to hear the applicant's
brother as witness was not based on any considerations concerning the
relevance of the evidence to be given. Rather, noting that he had been
deported following a residence prohibition, the Austrian courts
regarded him as an "unobtainable means of evidence". The Commission
observes that the Austrian courts arrived at this conclusion without
making any attempt at all to obtain the testimony of this witness. In
the first place, the Austrian courts could have summoned the
applicant's brother as witness notwithstanding the residence
prohibition imposed on him. In that case the applicant's brother could
have applied for a permission to re-enter Austria. There is nothing
to show that such a request by the applicant's brother would have been
without any prospect of success from the outset. Furthermore, there
were no legal obstacles to questioning the applicant's brother under
letters rogatory with the assistance of the Turkish authorities.
37. The Commission finds that in such circumstances the failure of
the Austrian courts to make any attempt to obtain the testimony of the
applicant's brother amounted to a violation of Article 6 paras. 1 and
3 (d) (Art. 6-1, 6-3-d) of the Convention.
CONCLUSION
38. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 paras. 1 and 3 (d) (Art. 6-1,
6-3-d) of the Convention.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy