AS TO THE ADMISSIBILITY OF
Application No. 16121/90
by Walter Franz Leopold JEDINGER
against Austria
The European Commission of Human Rights sitting in private
on 6 March 1991 , the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 July 1989
by Walter Franz Leopold JEDINGER against Austria and registered
on 2 February 1990 under file No. 16121/90;
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 1956 and at
present detained in prison in Krems.
The applicant complains that he was convicted and sentenced
on the basis of confessions obtained by the police under duress.
The facts submitted are as follows.
On 9 November 1988 the applicant was convicted by the Vienna
Regional Court (Landesgericht) of several counts of aggravated theft
(gewerbsmässiger schwerer Diebstahl) and other offences. He was
sentenced to seven years' imprisonment. Two co-accused received
sentences of two and four years' imprisonment.
According to the findings of the trial court, the applicant
was arrested by the police during the night of 25 October 1987 after
having tried to break into a shop. He was heard by the police on the
same day, the following day and 10 November 1987, and confessed a
series of burglaries and other offences.
Two months later, on 18 January 1988, he revoked his
confession alleging that it had been extorted by the police. He
stated that they had put a plastic bag over his head depriving him of
oxygen so that he repeatedly fell unconscious. Eventually he was made
to sign the reports drawn up by the police.
The trial court considered that this allegation was
contradicted by the statements of the investigating policemen. The
trial court also pointed out that when hearing a suspect who was
caught red-handed the police officers involved do not usually have at
their disposal detailed reports about offences committed elsewhere but
only circular notes with summary information. Normally other police
stations are requested to submit detailed reports once there is reason
to believe that an arrested person has committed several offences at
different places. This was, according to the evidence given by the
police officers involved in the applicant's case, the manner in which
the police proceeded. Therefore, the court concluded that the
detailed description in the applicant's confession after his arrest of
how the various offences had been carried out by him and and his
accomplices could only have been given by the person who in fact
perpetrated the offences. The fact that other persons had also
alleged to have been ill-treated by the police did not prove that the
applicant's confession had been extorted because in the other cases in
question no allegation was made that the confessions made under duress
did not correspond to the reality. The Court also noted that the
applicant had a criminal record with seven prior convictions for
similar offences, while the policemen in question were considered to
be credible. Furthermore, account was taken of the fact that the
applicant had been incriminated by the statements made before the
police by his co-accused who did not allege to have been ill-treated.
The applicant's plea of nullity (Nichtigkeitsbeschwerde) was
rejected by the Supreme Court (Oberster Gerichtshof) on 27 April 1989.
Insofar as the applicant had alleged that he had been under police
surveillance for a considerable period and consequently the police had
had the opportunity to "prepare" his case, the Supreme Court noted from
the files that the police surveillance, caused by an informant, had
started on 24 October 1987 and ended with the applicant's arrest on
the following early morning. The remaining complaints were likewise
considered to be ill-founded. The Supreme Court only dealt with the
grounds of nullity submitted by defence counsel but refused to
consider submissions made by the applicant personally. The
applicant's appeal (Berufung) was rejected by the Vienna Court of
Appeal (Oberlandesgericht) on 14 June 1989.
A request for a retrial (Wiederaufnahme des Strafverfahrens)
was rejected by the Vienna Regional Court on 4 October 1989. An
appeal (Beschwerde) against this decision was rejected on 5 December
1989 by the Court of Appeal.
The applicant points out that Amnesty International reported
his case. The report has been submitted and is apparently based
exclusively on the applicant's own allegations. It states, inter
alia, that on 3 November 1987 the applicant was heard by the
investigating judge to whom he reported in detail about his
ill-treatment by the police. Nevertheless the investigating judge
allowed the police to interrogate the applicant again on 10 November.
Allegedly he was then again ill-treated by way of a plastic bag being
put over his head in order to produce a sensation of suffocation.
It follows from observations sent by the Austrian authorities
to Amnesty International that three of several witnesses named by the
applicant, who had allegedly also been ill-treated in the same manner,
were heard and did not confirm the applicant's allegations.
The applicant laid criminal charges against several police
officers. On 13 June 1990 he was informed by the Public Prosecution
that there were no reasons to institute criminal proceedings but that
he was free to request the Regional Court to institute investigating
proceedings and bring an action for damages.
COMPLAINTS
The applicant maintains that his conviction is based on
evidence obtained under duress by the police. He invokes Articles 3,
5, 6, 13, and 14 of the Convention.
THE LAW
The Commission has considered the applicant's complaints under
Article 3 (Art. 3) (prohibition of ill-treatment), Article 5 (Art. 5)
(personal liberty) and Article 6 (Art. 6) of the Convention (right to
a fair hearing in criminal cases).
The Commission is not competent to examine complaints
alleging that domestic court decisions are based on errors of law or
fact unless such errors involve a violation of Convention rights.
In the present case, the applicant's allegations of ill-treatment by
the police prior to his conviction and sentence were examined by the
competent Austrian courts and considered to be unfounded. The trial
court heard the responsible police officers and accepted their
statements denying the charges laid against them by the applicant as
credible. The trial court pointed out that in his confessions the
applicant had given details which only the person who had committed
the offences could have known. Furthermore, the applicant was
incriminated by his accomplices who did not allege that their
statements had been made under duress. The Commission further notes
that the applicant was arrested at night when attempting to break into
a shop.
The Commission has noted that Amnesty International reported
about the applicant's allegation of having been ill-treated by the
police. However, this report does not refer to any evidence, other
than the applicant's own statements, that would support the
applicant's allegations in this respect and he has not submitted any
other documents or other evidence to prove them. It further appears
from the information provided by the Government to Amnesty
International that three prisoners, named by the applicant as victims
of the ill-treatment by the police, denied having been ill-treated,
either with a plastic bag or in any other way.
In these circumstances there is nothing to show that the
applicant was arbitrarily arrested, contrary to Article 5 (Art. 5), or
ill-treated by the police, in violation of Article 3 (Art. 3), or
that, in the subsequent criminal proceedings against him, he was not
given a fair hearing, as required by Article 6 of the Convention, both
by the trial court and the courts which considered his plea of nullity
and his appeal.
In conclusion the Commission finds no appearance of a
violation of the Articles invoked by the applicant.
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 by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy