AS TO THE ADMISSIBILITY OF
Application No. 24251/94
by Josef KAROLYI
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 23 February 1994
by Josef KAROLYI against Austria and registered on 1 June 1994 under
file No. 24251/94;
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, as they have been submitted by the applicant, may be
summarised as follows.
The applicant, born in 1958, is an Austrian national. When
lodging his application he was detained at the Stein Prison in Krems.
On 1 January 1992 criminal proceedings were instituted against
the applicant on suspicion of having shot a young woman and attempted
to kill a second woman in the early morning of the same day.
On 27 October 1992 the Vienna Public Prosecutor's Office
(Staatsanwaltschaft) filed an indictment charging the applicant with
murder, attempted murder and unlawful possession of a firearm.
On 22 March 1993 the applicant's trial commenced before a Court
of Assizes (Geschworenengericht) of the Vienna Regional Court
(Landesgericht), sitting with a jury. In these and the ensuing
proceedings the applicant was assisted by defence counsel.
At the hearing, which was continued on 23 March 1993, the Court
heard the applicant's statements and the testimony of several
witnesses. It also heard the opinion of a psychiatric expert on the
question of the applicant's criminal responsibility as well as the
opinion of a forensic expert and of a technical expert. It follows
from the trial record that questions were put to the witnesses by the
Court, the Public Prosecutor and the applicant's defence counsel.
At the hearing on 23 March 1993, the applicant's counsel
requested the taking of further evidence. These requests were
dismissed for the following reasons. The Court found that both the
psychiatric and the technical expert opinion were conclusive and
without deficiencies, and that it was therefore not necessary to obtain
further expert evidence. The requests to hear again two witnesses were
dismissed on the grounds that both witnesses had been questioned in
detail by the Court and the defence at the hearing the day before and
that the evidence to be given was already covered by the expert
opinions. As regards one further witness, the Court noted that the
witness had not appeared at the hearing and that the attempts to bring
her before the court had failed as her whereabouts were unknown. In
any event, her eventual statements as well as those of another witness
named by the defence were covered by the above expert opinions.
Furthermore, no taking of evidence was necessary on the question as to
whether the firearm deposited at the court and examined in the course
of the proceedings had been exchanged, as the applicant had failed to
show any circumstances to support such an assumption. Moreover,
according to the opinion of the forensic expert, the bullet found in
the victim's corpse had been fired with the firearm in question.
No further requests were put at the end of the hearing.
On 23 March 1993 the jury, by a unanimous verdict, found the
applicant guilty of murder, of attempted murder and of unlawful
possession of firearms. The jury also unanimously found that the
applicant was criminally responsible.
The Court sentenced the applicant to life imprisonment.
On 31 August 1994 the Austrian Supreme Court (Oberster
Gerichtshof) dismissed the applicant's plea of nullity
(Nichtigkeitsbeschwerde).
In respect of the applicant's procedural complaints, the Supreme
Court found that the Court of Assizes had correctly refused the
applicant's request to take further evidence. The Supreme Court
considered in particular that the applicant had failed to show specific
circumstances necessitating the preparation of further expert opinions
in addition to expert opinions which were conclusive and without any
deficiencies. Moreover, no further hearing of witnesses had been
necessary, taking into account in particular the concurrent findings
of both the forensic and the technical expert.
On 18 October 1993 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal against sentence (Berufung gegen den
Strafausspruch). The decision was served on 16 November 1993.
COMPLAINTS
The applicant complains about his conviction by the Court of
Assizes of the Vienna Regional Court of 23 March 1993 and the alleged
unfairness of the court proceedings concerned. He submits that the
Court of Assizes wrongly dismissed his requests to take further
evidence. He submits that his defence counsel was not properly prepared
at the trial and did not effectively assist him. The applicant invokes
Article 6 of the Convention and Article 4 para. 2 of Protocol No. 7.
THE LAW
1. The applicant complains about his conviction by the Court of
Assizes of the Vienna Regional Court, as confirmed by the Supreme
Court, 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 (cf. No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81, 88 and
Eur. Court H.R., Van de Hurk judgment of 19 April 1994, Series A
no. 288, p. 20, para. 61; Klaas judgment of 22 September 1993, Series A
no. 269, p. 17, para. 29).
The applicant, invoking Article 6 (Art. 6) of the Convention and
Article 4 para. 2 of Protocol No. 7 (P7-4-2), alleges that he did not
have a fair trial.
The Commission considers it appropriate to examine his complaints
about the taking and assessment of evidence from the point of view of
paragraphs 1 and 3 of Article 6 (Art. 6-1+6-3) taken together,
especially as the guarantees in paragraph 3 represent aspects of the
concept of a fair trial contained in paragraph 1 (Eur. Court H.R.,
Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14,
para. 29).
Article 6 (Art. 6), so 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 ...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance ...
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;
..."
The Commission 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 the defendants seek to adduce. More
specifically, Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them,
again as a general rule, to assess whether it is appropriate to call
witnesses, in the "autonomous" sense given to that word in the
Convention system; it does not require the attendance and examination
of every witness on the accused's behalf (cf., Eur. Court H.R.,
Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89;
Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para.
33).
The Commission notes that the Court of Assizes regarded the
taking of further evidence requested by the applicant as unnecessary,
given the conclusive findings of the forensic and the technical expert
in their respective opinions. This view was confirmed by the Supreme
Court which, upon the applicant's procedural complaints in his plea of
nullity, considered in particular that the applicant had failed to show
any circumstances necessitating the taking of supplementary expert
advice.
In these circumstances, the Commission finds no sufficient
grounds to conclude that the Court of Assizes's taking of evidence, as
confirmed by the Supreme Court, was incompatible with Article 6
(Art. 6) of the Convention.
Moreover, having regard to the conduct of the proceedings against
the applicant as a whole, the Commission finds no other indication of
unfairness. In particular his submissions do not show that, assisted
by counsel, he could not duly present his arguments in defence or could
not effectively exercise his defence rights. Indeed, it can be seen
from the trial record that counsel put numerous questions to the
experts and witnesses and requested, though unsuccessfully, the taking
of further evidence on the applicant's behalf.
Accordingly, there is no appearance of a violation of Article 6
(Art. 6) of the Convention.
The Commission further finds that the applicant's submissions do
not raise any issue under Article 4 of Protocol No. 7 (P7-4).
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy