AS TO THE ADMISSIBILITY OF
Application No. 19795/92
by H. G.
against Austria
The European Commission of Human Rights (First Chamber)
sitting in private on 7 April 1994, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 January
1992 by H. G. against Austria and registered on 3 April 1992
under file No. 19795/92;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the
respondent Government on 4 February 1993 and the observations in
reply submitted by the applicant on 1 April 1993;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1958, is an Austrian national and
resident at Haugsdorf. He is a veterinary surgeon by profession.
Before the Commission he is represented by Mr. E. Mack, a lawyer
practising at Korneuburg.
In January 1988 the Lower Austria Regional Government
(Landes-regierung) appointed the applicant as meat inspector
responsible in an area of six municipalities.
In July 1988 preliminary investigations were opened against
the applicant on the suspicion of having wrongly affirmed the
adequate quality of a pig after a forced slaughter on 25 June
1988, and neither ordered, as would have been required after
forced slaughters, a bacteriological examination, nor informed
the competent authorities thereof. In these proceedings, the
applicant was assisted by defence counsel, namely Mr. Mack.
On 28 July and 31 October 1988 the applicant was questioned
by the police authorities, and, on 20 December 1989, by the
Investigating Judge at the Korneuburg Regional Court
(Kreisgericht). The applicant stated that, in the course of the
examination on 25 June 1988 concerning altogether 125 pigs and
6 piglets, he had not observed any anomalies. He further
indicated that normally between 100 and 150 animals were
slaughtered on one occasion, and that he received a payment of
AS 10 per animal which he examined.
On 28 March 1990 the Korneuburg Public Prosecutor's Office
(Staatsanwaltschaft) preferred an indictment against the
applicant charging him with abuse of official authority in that
he had deliberately failed to inform the competent authorities
of the forced slaughter or to order a bacteriological examination
of the pig concerned.
The Korneuburg Regional Court conducted the trial against
the applicant on 2 August 1990 and 17 January 1991, and heard the
applicant and several witnesses as well as a veterinary expert.
The applicant was in particular questioned on his professional
practice, in particular in respect of examining animals
slaughtered at the place of his cousin, a butcher. As regards the
volume of his work with his cousin, the applicant indicated that
between February and June 1988 he had examined 1,500 pigs per
month. His cousin, when heard as witness, indicated that he
slaughtered between 400 and 500 pigs per week.
On 17 January 1991 the Korneuburg Regional Court convicted
the applicant of abuse of official authority and sentenced him
to six months' imprisonment on probation.
The Regional Court, having regard to the statements made by
the applicant and the testimonies of several witnesses, found him
guilty as charged. It considered in particular that the applicant
had not inspected the pig while it had still been alive. Even
assuming that, after the forced slaughter, the applicant had not,
due to a superficial inspection, noticed the pig's serious
disease and thus the forced slaughter, the absence of an
inspection prior to the slaughter in any event would have
entailed for him the obligation to order a bacteriological
examination and to inform the competent authorities. Only on the
occasion of a subsequent inspection independently ordered, the
serious disease and blood poisoning of the pig and its inadequate
quality were established.
As regards the applicant's personal particulars, the
Regional Court's judgment, proceeding from an estimate given by
the applicant at the hearing of the same day, stated inter alia
that his monthly income amounted to AS 10,000 and that he had to
maintain his wife and a child.
On 8 April 1991 the applicant lodged a plea of nullity
(Nichtig-keitsbeschwerde) and an appeal (Berufung) against
sentence. He complained that the reasoning in the judgment of the
Korneuburg Regional Court was contradictory and deviated from the
indictment. Moreover, the imposition of a fine would have been
sufficient. Payment of the whole fine or part thereof might even
be suspended on probation.
On 4 July 1991 the Austrian Supreme Court (Oberster
Gerichtshof) dismissed the applicant's plea of nullity. The
Supreme Court confirmed the Regional Court's reasoning that the
applicant had misused his official authority by failing to order
a bacteriological examination and to inform the competent
authorities, either that he knew about the forced slaughter or
at least that he was aware that the pig had been slaughtered
without a prior inspection when still alive. The case was
referred to the competent Court of Appeal (Oberlandesgericht) for
decision upon the appeal. The Supreme Court's decision was served
on 5 August 1991.
On 8 August 1991 the hearing before the Vienna Court of
Appeal was fixed for 19 September 1991. On 12 August 1991 the
summons for the hearing were served upon the applicant.
On 3 September 1991 the applicant informed the Court that,
for holiday reasons, he could not be present at the hearing. He
requested that either his non-appearance be excused or the
hearing be postponed.
On 19 September 1991 the hearing on the applicant's appeal
took place before the Vienna Court of Appeal in the presence of
the applicant's counsel. According to the verbatim record,
counsel informed the Court of Appeal again about the applicant's
absence for reasons of holidays, and repeated essentially his
written submissions. The Chief State Prosecutor
(Oberstaatsanwalt) objected to the appeal.
Following the hearing the Vienna Court of Appeal amended the
judgment of 17 January 1991 to the effect that the applicant's
sentence to imprisonment was replaced by a fine of 360 daily
rates of AS 400, in default of payment 180 days' imprisonment.
The execution of part of the sentence, namely sixty daily rates,
was suspended on probation. The Court of Appeal considered that,
having regard to the applicant's clean criminal record so far,
his sentence to imprisonment could be replaced by an equivalent
fine. The amount of the daily rates were calculated on the basis
of the applicant's monthly income which the Court "assessed
realistically" ("realistische Einschätzung") at more than AS
20,000. The Court of Appeal also noted that the applicant's wife
had an income of AS 8,500 and that they had one child. The Court
considered that, having regard to the applicant's personal and
financial situation, he was capable of paying AS 12,000 per month
for the fine without ruining himself.
On 25 October 1991 the Korneuburg Regional Court granted the
applicant's request to pay the fine in six rates of AS 20,000.
COMPLAINTS
The applicant complains under Article 6 of the Convention
about his conviction and about the alleged unfairness of the
criminal proceedings against him. He submits in particular that
the reasoning in the Regional Court's judgment was not conclusive
and not in conformity with the indictment. He further submits
that the proceedings before the Court of Appeal were unfair on
the ground that the Court of Appeal did not fix the fine on the
basis of the Regional Court's findings as to his income, but made
an excessive assessment without having heard him on this matter
or otherwise established his income.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 January 1992 and
registered on 3 April 1992.
On 14 October 1992 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 4 February 1993, the Government submitted their
observations. The applicant's observations in reply were
submitted on 1 April 1993.
THE LAW
The applicant complains about his conviction and also about
the proceedings concerned.
The Commission recalls that 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 set out in the Convention (No. 10486/83, Dec. 9.10.86,
D.R. 49 p. 100).
In the present case, the applicant complains that, for
several reasons, he did not receive a fair hearing, as guaranteed
by Article 6 para. 1 (Art. 6-1), in the determination of the
criminal charge against him.
The applicant complains in particular that the appeal
proceedings before the Vienna Court of Appeal regarding the
fixing of the fine imposed upon him were unfair.
The Government contend that the applicant cannot claim to
be a victim, within the meaning of Article 25 (Art. 25) of the
Convention, of the alleged violation of Article 6 para. 1 (Art.
6-1) on the ground that he voluntarily did not avail himself of
the opportunity to appear in person at the hearing on his appeal.
The applicant and his counsel failed to request expressly that
the hearing be postponed. Moreover, in his submissions upon
appeal, the applicant himself suggested that the sentence be
commuted to a fine, and should have, therefore, been aware that
the question of his income might could be of relevance. Having
regard to counsel's failure to request that the hearing be
postponed, the Government also claim non-exhaustion of domestic
remedies under Article 26 (Art. 26) of the Convention.
The Government also submit that the Regional Court, in its
judgment, had only referred to the applicant's indications as to
his monthly income without assessing this matter on the basis of
evidence, as it sentenced him to imprisonment. The Vienna Court
of Appeal could reasonably estimate the applicant's income on the
basis of the contents of the file.
The applicant submits that the Court of Appeal, deviating
from a finding of the first instance court, assessed his income
at an unreasonable amount without having heard him on this
matter. Such a new estimation by the Court of Appeal was not to
be expected.
The Commission notes that the Korneuburg Regional Court,
following two hearings, convicted the applicant of abuse of
official authority and sentenced him to six months' imprisonment
on probation. In its judgment, the Regional Court, proceeding
from the applicant's indications at the hearing of the same day,
assumed a monthly income of AS 10,000. The applicant's plea of
nullity remained unsuccessful. Upon his appeal against sentence,
the Vienna Court of Appeal replaced the sentence to imprisonment
by a fine of 360 daily rates of AS 400, and suspended the
execution of part of the sentence on probation. As regards the
fixing of the amount of the daily rates, the Court of Appeal
based itself on an assessment of his monthly income at more than
AS 20,000.
The Commission also notes that the applicant, in his
submissions upon appeal, suggested the imposition of a fine
without specifying the amount he considered to be appropriate,
or referring to his income as a basis for calculating any daily
rates to be imposed. Having been summoned for the hearing on his
appeal, he informed the Court that, for holiday reasons, he could
not be present at the hearing, and requested that either his non-
appearance be excused or the hearing be postponed. At the hearing
in question, the applicant's defence counsel was present.
The Commission is not required to decide whether the
Government's arguments suffice to conclude that the applicant,
in this respect, cannot claim to be a victim, within the meaning
of Article 25
(Art. 25), or failed to exhaust the domestic remedies, as
required by Article 26 (Art. 26), as his complaints do not, in
any event, disclose any appearance of a violation of his right
to a fair trial.
The Commission considers that the Court of Appeal, when
replacing the applicant's prison sentence by a fine which had to
be fixed in relation to his income, could, on the basis of the
full contents of the criminal file assess the applicant's income
without being bound by the indications of the first instance
court in this respect. In the course of the proceedings against
him, the applicant had made various statements relating to his
workload as a meat inspector, and also to his income. Further
indications in this respect followed from the statement of a
witness heard at the trial against him. In these circumstances,
the assessment made by the Court of Appeal does not appear
arbitrary. Moreover, the applicant had made a statement on his
monthly income at the trial before the Regional Court. When
suggesting, in his appeal, to replace his prison sentence by a
fine, he had the opportunity to comment on the question as to the
fixing of such a fine, and particularly to specify his income.
Having decided not to appear at the hearing upon his appeal, the
applicant missed a further opportunity to address this matter
before the Court of Appeal, and so did his defence counsel.
The Commission, therefore, finds that there was no element
of unfairness in the appeal proceedings before the Vienna Court
of Appeal concerning the fixing of the fine imposed upon the
applicant.
As regards the applicant's further submissions that the
reasoning in the Regional Court's judgment was not conclusive and
not in conformity with the indictment, the Commission considers
that there is no indication that in the course of the trial
before the Korneuburg Regional Court, the applicant, assisted by
defence counsel, could not properly present his arguments or not
effectively exercise his defence rights.
In these circumstances, the Commission finds that the
criminal proceedings against the applicant, taken as a whole,
satisfied the requirements of a fair hearing, pursuant to Article
6 para. 1
(Art. 6-1) of the Convention.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy