THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
application no. 45367/99
by Klaus GRÖCHENIG
against Austria
The European Court of Human Rights (Third Section) sitting on 31 August 1999 as a Chamber composed of
SirNicolas Bratza, President,
MrJ.-P. Costa,
MrL. Loucaides,
MrsF. Tulkens,
MrK. Jungwiert,
MrsH. Greve,
MrK. Traja, Judges,
withMrsS. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 May 1998 by Klaus Gröchenig against Austria and registered on 12 January 1999 under file no. 45367/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian national, born in 1963 and living in Millstatt.
He is represented before the Court by Mr A. Klauser, a lawyer practising in Vienna.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was employed in the Austrian Federal Armed Forces and worked as a military pilot. Following an accident during a flight in March 1995 when the second aircraft, flying in flight formation, crashed and two persons died, the Federal Ministry of Defence (Bundesministerium für Landesverteidigung) ordered that the applicant's military pilot's licence (Militärflugzeugführerschein), issued in 1986, be provisionally withdrawn on account of serious doubts as to his reliability and his qualifications. Furthermore, his additional allowance as a pilot was no longer paid. Thereupon the applicant, represented by counsel, initiated several proceedings (Application no. 32635/96).
In the criminal proceedings against the applicant upon the request of his military superior authority, the Klagenfurt Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment in May 1996, charging the applicant with homicide. The applicant, assisted by counsel, submitted observations on 6 August 1996.
The trial opened before the Klagenfurt Regional Court (Landesgericht) on 14 August 1996 and continued on 8 November 1996 with an on-site inspection. The court heard the statements made by the applicant and several eye-witnesses about the accident. It also had regard to the official report on the air crash, prepared by the Committee of the Federal Ministry of Defence, responsible for the investigation of aircraft accidents (Flugunfallkommission), and to technical expert evidence.
On 8 November 1996 the Regional Court convicted the applicant of homicide and sentenced him to six months' imprisonment. It also ordered him to pay to the parents of one of the victims a sum of 1,000 Austrian schillings. The court, having regard to all material before it, found that the applicant, as the pilot leading a flight of two fighter bombers in formation, had negligently caused the air crash of the second aircraft in that he had made a dangerous stunt flight manoeuvre, contrary to the relevant air-traffic regulations (Luftverkehrsregeln). The court dismissed the applicant's requests for the taking of further evidence, partly because they concerned matters which could be presumed to be true or were irrelevant, such as a repetition of the dangerous manoeuvre in question or the report and witness evidence regarding an allegedly similar air crash, and partly because the witness named had not eye-witnessed the events and was only supposed to give his legal views. Both the applicant and the public prosecutor appealed.
On 1 December 1997 the Graz Court of Appeal (Oberlandesgericht), following a hearing, dismissed the applicant's appeal on questions of law and against sentence (Berufung wegen Nichtigkeit und Strafe). It upheld the public prosecutor's appeal on questions of law and the applicant's appeal against the compensation order. It amended the Regional Court's judgment to the effect that the applicant was convicted of homicide in particularly dangerous conditions (unter besonders gefährlichen Verhältnissen) and sentenced him to twelve months' imprisonment, suspended on probation. The private parties were referred to civil court proceedings and the newly fixed sentence. In its judgment, the Court of Appeal dismissed the applicant's procedural complaints, in particular as regards the refusal to take further evidence, confirming the reasoning of the trial court. Furthermore, the trial court's assessment of the evidence was deemed conclusive. The Court of Appeal considered that the applicant had not merely acted negligently, but had also operated in particularly dangerous conditions, as he had disregarded his military flight instructions, made a prohibited stunt flight manoeuvre in a difficult area at a dangerous altitude, without having duly informed himself about the position of the second aircraft and without informing the pilots of the second aircraft of his intentions. The written version of the judgment was served on 2 July 1998.
COMPLAINTS
The applicant complains about his conviction and also of the alleged unfairness of the proceedings concerned. He submits in particular that the courts dismissed a large part of his requests to take further evidence and thereby also violated the rights of the defence. Moreover, they unduly relied on the report on the aircraft accident, prepared by a committee of the Federal Ministry of Defence although its authorities had laid the information against him. He also considers that the technical experts were not sufficiently qualified. According to him, the conduct of the criminal proceedings disclosed a violation of the presumption of innocence. He invokes Article 6 §§ 1, 2 and 3 of the Convention.
THE LAW
The applicant raises various complaints under Article 6 of the Convention about his conviction by the Klagenfurt Regional Court, as amended by the Graz Court of Appeal.
Article 6, as far as relevant, provides as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to 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; ...”
It seems appropriate in the instant case to look at the applicants' complaints from the points of view of paragraphs 1, 2 and 3 of Article 6 taken together, especially as the guarantees in paragraphs 2 and 3 represent aspects of the concept of a fair trial contained in paragraph 1 (see, inter alia, the Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 14, § 29).
As regards the applicant's complaints about the criminal courts' taking of evidence and its evaluation, the Court recalls that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). In the present case, the Klagenfurt Regional Court, as confirmed by the Graz Regional Court, gave detailed reasons for the refusal to take further evidence, as requested by the defence. Moreover, the applicant had a full opportunity to question the relevance and conclusiveness of the evidence for the prosecution.
Considering the course of the criminal proceedings as a whole, the Court finds no indication that the rights of the defence were restricted or that there were other circumstances rendering the trial against the applicant unfair. Moreover, there is no evidence which might indicate a breach of the presumption of innocence.
Consequently, there is no appearance of a breach of the applicant's rights under Article 6 §§ 1, 2 and 3.
The application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
S. DolléN. Bratza
RegistrarPresident
Full & Egal Universal Law Academy