AS TO THE ADMISSIBILITY OF
Application No. 19205/91
by H.N.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 14 October 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 6 September 1991
by H.N. against Austria and registered on 17 December 1991 under file
No. 19205/91;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1921, is an Austrian national and resident
at Krems-Gneixendorf. Before the Commission she is represented by
Mr. F. Winiwarter, a lawyer practising in Krems.
On 4 February 1991 the Krems Regional Court (Kreisgericht)
convicted the applicant of attempted grave fraud and sentenced her to
eight months' imprisonment on probation. The Regional Court found her
guilty of having presented to the Krems District Court (Bezirksgericht)
the will of her late husband dated 14 April 1986, the contents of the
will and the signatures of her late husband as well as three witnesses
having been forged by her to the disadvantage of the beneficiaries
under an earlier will and to her advantage.
As regards the question of forgery the Regional Court based
itself in particular on the testimonies of the three witnesses named
in the will concerned who stated that they had not signed it. The
Court noted that, in the course of the criminal proceedings against
her, the applicant had deviated from her statements made in the course
of the civil proceedings concerning the validity of the will concerned,
and had left open whether the will had been written by her late husband
or possibly third, unknown persons. The fact that the applicant had
been the author of the said document, namely of its contents and all
the signatures, was considered convincingly proven by the written
opinion of the graphological expert Prof. G., Dean of the Austrian
graphology experts. His opinion which was read out at the trial was
thorough and conclusive. He had used as many handwritings for
comparison as possible. The defence had not invoked any mistake,
contradiction or vagueness justifying the appointment of a second
expert. The Court also noted that, when it ex officio inquired with
the parties about the appointment of a second expert, the applicant
declared that she was not prepared to cooperate with another expert and
supply further handwritten material. The Regional Court further
considered that the written expert opinion could be read out at the
trial in accordance with S. 252 para. 1 (1) of the Austrian Code of
Criminal Procedure (Strafprozeßordnung), as the eighty-seven year old
expert had fallen seriously ill and could not attend the trial. The
Regional Court further considered that the opinion could be used as
evidence although the expert, before asking the applicant for a
handwritten sample, had not advised her on her right to refuse
cooperation in this matter as at the time of the examination of her
handwriting by the expert, she had been informed about the
investigations and charge against her and about the function of the
expert in these proceedings.
In these and the following proceedings the applicant was defended
by Mr. Winiwarter.
On 18 April 1991 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal (Berufung wegen Nichtigkeit, Schuld
und Strafe). The Court of Appeal confirmed the reasoning of the
Regional Court. In particular, the applicant had been informed about
the purpose of her examination by the graphological expert and had
given samples of her handwriting voluntarily. The fact that the
written expert opinion had been read out at the trial could not be
objected to under the Code of Criminal Procedure, as there was no
unlimited right to have witnesses or experts appearing at the trial.
The applicant's criticism of the expert, in particular as regards his
age, were unfounded. The decision was served on 7 May 1991.
COMPLAINTS
The applicant complains under Article 6 para. 3 (d) of the
Convention that she did not have any possibility to put questions to
the graphological expert at the trial. Furthermore, it had been unfair
that the expert had not informed her about her right to refuse
cooperation in respect of the handwriting samples.
THE LAW
The applicant complains about her conviction by the Krems
Regional Court on 4 February 1991, confirmed by the Vienna Court of
Appeal on 18 April 1991, and also of the court proceedings concerned.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, 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 and freedoms set out in the
Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
The applicant also complains under Article 6 para. 3 (d)
(Art. 6-3-d) that she did not have a fair trial in that the expert
opinion had been read out at the trial. Furthermore, the expert had
not informed her that she did not have to cooperate as regards the
handwriting examination.
The Commission notes that, read literally, subparagraph (d) of
paragraph 3 relates to witnesses and not experts. However, the
guarantees contained in paragraph 3 are constituent elements, amongst
others, of the concept of a fair trial set forth in paragraph 1.
Therefore, the Commission considers it appropriate to examine this
complaint under the general rule of paragraph 1 of Article 6 (Art. 6)
of the Convention, whilst having due regard to the guarantees of
paragraph 3 (cf. Eur. Court H.R., Bönisch judgment of 6 May 1985,
Series A no. 92, pp. 14/15, para. 29; Brandstetter judgment of 28
August 1991, Series A no. 211, p. 20, para. 42).
The admissibility of evidence is primarily a matter for
regulation by national law, and, as a rule, it is for the national
courts to assess the evidence before them. It is the task of the
Convention organs to ascertain whether the proceedings considered as
a whole, including the way in which the evidence was taken, were fair
(cf. Eur. Court H.R., Isgrò judgment of 19 February 1991, Series A no.
194-A, p. 11, para. 31; Asch judgment of 26 April 1991, Series A
no. 203, p. 10, para. 26).
All the evidence must normally be produced in the presence of the
accused at a public hearing with a view to adversarial argument. As
this may prove to be impossible in some cases for oral testimony the
use of statements made at the pre-trial stage is not in itself
inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6),
provided that the rights of the defence have been respected. As a rule,
these rights require that the defendant be given an adequate and proper
opportunity to challenge and question a witness against him (cf. Eur.
Court H.R., Asch judgment, loc. cit., para. 27 with further reference).
The Commission notes that the present case concerned the reading
out of a graphological expert opinion at the trial against the
applicant, as the expert, for reasons of old age and ill-health, could
not appear in court. The expert Prof. G. was known to the Austrian
courts concerned. The applicant knew him from the occasion of the
taking of her handwritten samples. At that time, the applicant had
been informed about the criminal proceedings against her and the object
of her examination by the handwriting expert. At the trial the
applicant, defended by counsel, did not cast any doubt as to the well-
foundedness and conclusiveness of the opinion in question. Upon
inquiry by the Regional Court at the trial, the applicant did not ask
for a second expert opinion. The Krems Regional Court also had due
regard to the statements of three witnesses confirming that they had
not signed the document in question. Both the Regional Court and the
Court of Appeal carefully considered the submissions put forward by the
defence.
In these circumstances, the Commission finds that there is no
appearance of a violation of the rights of the defence and hence the
applicant's right to a fair trial.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
Accordingly, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy