AS TO THE ADMISSIBILITY OF
Application No. 23806/94
by Horst KLEINBICHLER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, 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. MARXER
G.B. REFFI
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 15 March 1994 by
Horst KLEINBICHLER against Austria and registered on 5 April 1994 under
file No. 23806/94;
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 applicant, born in 1941, is an Austrian national. He is
currently detained at the prison of the Klagenfurt Regional Court.
Before the Commission he is represented by Mr. D. Clementschitsch, a
lawyer practising in Villach.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
In early September 1978 a fire destroyed a restaurant owned by
the applicant. Subsequently, on 18 September 1978, preliminary
investigations (Voruntersuchung) were opened against the applicant on
the suspicion of fraud. In these and all the subsequent proceedings the
applicant was represented by Mr. Clementschitsch.
On 27 January 1981 the Klagenfurt Public Prosecutor's Office
(Staatsanwaltschaft) preferred the indictment against the applicant.
He was charged inter alia with attempted aggravated fraud. He was
accused of having instigated R.Th. and E.M. to set fire to his
restaurant in order to obtain insurance monies from the B. insurance
company.
On 5 October 1981 the trial was opened at the Klagenfurt Regional
Court (Landesgericht), sitting as a court of two professional judges
and two lay judges (Schöffengericht). Judge Orasche participated as a
professional judge.
On 25 March 1983 the Klagenfurt Regional Court acquitted the
applicant. It noted in particular that R.Th. and E.M. had been
acquitted from the charge of arson by the Augsburg Regional Court for
lack of sufficient proof. The Regional Court further noted that it had
not been able to hear E.M. However, it had heard R.Th., who had denied
that the applicant had instigated him to set fire to his restaurant.
The statement of a further witness, namely E.T., who had incriminated
the applicant, was not sufficient to invalidate the statements made by
the applicant and R.Th.
In subsequent civil proceedings, which lasted from 1983 to 1987,
the applicant obtained judgments from the competent courts, which
ordered the B. insurance company to pay him insurance monies of
altogether about ATS 6,4 million. It appears that payment was made to
the applicant in 1987 and 1988.
On 4 November 1991 the Klagenfurt Public Prosecutor's Office
requested that the criminal proceedings against the applicant be
reopened. Judge Greller, being the head of the competent department of
the Klagenfurt Regional Court, transferred the file to the
investigating judge, requesting him to hear the applicant on the
request to reopen the proceedings. Subsequently, on 15 November 1991
Judge Greller requested a German court for judicial assistance as
regards the questioning of witness E.M. He submitted that the matter
had to be dealt with urgently and requested that E.M. be heard by the
German police authorities and that officers of the Austrian police
department, which was investigating the case, be allowed to be present.
On 22 November 1991 the Klagenfurt Regional Court, sitting in
camera as a senate of three judges (Drei-Richter-Senat), namely Judge
Greller, Judge Lutschounig and Judge Orasche, decided to reopen the
proceedings against the applicant. The Regional Court found in
particular that R.Th., who had, in the former proceedings denied that
the applicant had requested him to set fire to his restaurant, had now
confessed that he and E.M. had actually done so. E.M. had made a
corresponding confession. Having regard in particular to the false
statement made by R.Th. in the former proceedings, and taking into
account that the prosecution of the offence was not yet statute-barred,
the Public Prosecutor's request to reopen the proceedings in accordance
with S. 355 of the Code of Criminal Procedure (Strafprozeßordnung) was
justified. Consequently, the acquittal had to be set aside.
On 31 December 1991 the Graz Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal. It found in particular that the
Klagenfurt Regional Court had been duly composed. A judge, who had
participated in the earlier proceedings, in the present case Judge
Orasche, was not excluded by law from participating in the decision on
the reopening of these proceedings, under S. 68 of the Code of Criminal
Procedure. Furthermore, the Regional Court had rightly found that the
conditions for reopening the proceedings were met. In particular, the
prosecution of the offence was not yet statute-barred. The duration of
the proceedings against the applicant had interrupted the limitation
period. Contrary to the applicant's view, the confessions of R.Th. and
E.M., which had only been made in 1991, constituted new facts. In view
of these confessions, which were also supported by the statements made
by E.T. in the former proceedings, there was a high probability that
the applicant would now be convicted.
On 28 February 1992 the Public Prosecutor's Office preferred the
indictment against the applicant, charging him with aggravated fraud.
He was accused of having instigated R.Th. and E.M. to set fire to his
restaurant and to have subsequently deceived employees of the B.
insurance company causing them to pay him altogether ATS 6,4 million.
On 23 March 1992 the applicant appealed against the indictment.
He submitted in particular that the prosecution of the offence was
already statute-barred. He argued that the duration of the former
proceedings had not been in conformity with Article 6 of the European
Convention on Human Rights and should therefore not have interrupted
the limitation period. As regards the charge, he pointed out that he
had not deceived employees of the insurance company, as the latter had
only paid him upon judgment of the competent civil courts.
On 23 April 1992 the Graz Court of Appeal dismissed the
applicant's appeal. As regards the question whether the prosecution of
the offence was statute-barred, it referred to its decision of
31 December 1991. It added that the duration of the proceedings had
mainly been due to the complexity of the case and the conduct of the
applicant.
On 6 July 1992 the trial was reopened before the Klagenfurt
Regional Court sitting again as a court of two professional judges,
namely Judge Greller and Judge Lutschounig, and two lay judges. The
applicant had already on 30 June 1992 brought a motion, claiming that
the two professional judges were disqualified from participating at the
trial on the ground that they had decided on the reopening of the
proceedings. This motion had been dismissed by the President of the
Regional Court on 3 July 1992. The applicant repeated it at the trial.
However, the Regional Court also dismissed it. The trial was continued
on 23 July, 20 August, 17 September, 15 October, 13, 16, 17 and
18 November 1992.
On 23 July 1992 the witnesses R.Th. and E.M., who had not been
summoned for this date, appeared at the trial. The applicant requested
that they should not be heard as the defence did not have time to
prepare for their questioning. He also indicated that he wanted to
confront them with witnesses of the defence. The Regional Court
dismissed this request and, subsequently, heard the two witnesses.
R. Th. submitted in particular that he had not appeared at the
trial on 6 July 1992 inter alia for fear that he might still be
prosecuted in Austria on charges of arson. However, meanwhile he had
been assured by the police officers, who had investigated the case,
that there were no proceedings pending against him. E.M. also stated
that he had been assured that he did not risk anything, if coming to
Austria. As regards the events in 1978, R. Th. stated that, in the
summer of 1978, he had met the applicant, who had asked him whether he
knew someone who would set fire to his restaurant. He had then offered
to do so against payment of a certain percentage of the insurance sum
and he and the applicant had arranged the details for carrying out
their plan. The applicant had gone to Italy, while he and E.M. had, in
the night of 7 to 8 September 1978, set fire to his restaurant. They
put candles into plastic bowls filled with fuel, to ensure that they
were already at a safe distance when the candles would burn down and
light the fire. He and E.M. had met the applicant in Italy early in the
morning of 8 September 1978 and had received part of their payment. The
applicant had never paid them the rest. E.M. also stated that he and
R.Th. had set fire to the applicant's restaurant.
On 15 October 1992 the Public Prosecutor's Office amended the
indictment. The applicant was still charged with aggravated fraud.
However, it was assumed that he had not deceived employees of the
insurance company but organs of the competent civil courts, thereby
causing them to give judgments, obliging the B. insurance company to
pay him altogether ATS 6,4 million. Thereupon, the applicant claimed
that the charge was not the same any more and requested that the whole
trial be repeated. Further, the applicant requested that B.Sch. and
L.F. be heard as witnesses.
On 18 November 1992 the Klagenfurt Regional Court convicted the
applicant of aggravated fraud and sentenced him to three and a half
years' imprisonment.
The Regional Court found that the applicant had caused R.Th. and
E.M. to set fire to his restaurant. Subsequently, he had deceived
organs of the competent civil courts about the origin of the fire and
had thereby caused them to decide in his favour, obliging the B.
insurance company to pay him about ATS 6,4 million. In establishing
these facts, the Court found that the applicant's defence that he had
not instigated R.Th and E.M. to commit arson, was not credible. It
referred in particular to the statements made by the witnesses R.Th.
and E.M. It also considered the opinion of a fire expert, which it had
ordered and which had confirmed the plausibility of the description
given by R.Th. of how he had set fire to the applicant's restaurant.
As regards the applicant's request to hear B.Sch., the Court
found that he had not witnessed any of the relevant events, but had
just confirmed E.M.'s alibi in the proceedings against the latter. As
E.M. had meanwhile confessed to having participated in setting fire to
the applicant's restaurant, there was no need to hear B.Sch. Moreover,
the request had been made at a very late stage and was apparently aimed
at delaying the proceedings. The same held true as regards the
applicant's request to hear L.F. Further, the applicant had failed to
show why this witness would be able to make a statement on whether or
not the applicant had met R.Th. and E.M. on 8 September 1978. In any
case, this question was not relevant.
Finally, the Court found that the witnesses R.Th. and E.M., whose
questioning the applicant had opposed, had to be heard immediately, as
there was, in the circumstances, a probability that they might not
appear in court again. Moreover, a confrontation of these witnesses
with other witnesses had not proved necessary. In any case, the
applicant had failed to specify the factual issue in relation to which
he wanted such a confrontation.
On 14 December 1993 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's plea of nullity and his appeal (Nichtigkeits-
beschwerde und Berufung).
As regards his complaint that the two professional judges, namely
Judge Greller and Judge Lutschounig were excluded from participating
in the renewed trial or that they were at least biased, the Supreme
Court found that their participation in the decision to reopen the
proceedings against the applicant, did not constitute a reason for
disqualification within the meaning of S. 68 para. 2 of the Code of
Criminal Procedure. It was true that they had to examine the new
evidence when taking the decision to reopen the proceedings. However,
they did not anticipate the evaluation of evidence in the renewed
proceedings and there was also no reason to assume that they would be
biased within the meaning of S. 72 of the Code of Criminal Procedure.
As regards the rejection of various requests for the taking of
evidence by the applicant, the Supreme Court found that they did not
violate the applicant's defence rights. It confirmed the reasoning of
the Regional Court. In particular, witness B.Sch. had already in the
former proceedings proved incapable of making any precise statements.
It was not clear how he could invalidate E.M.'s statement who now
incriminated himself by admitting that he participated in setting fire
to the applicant's house. The Supreme Court equally dismissed the
applicant's complaint that the Regional Court should not have heard
R.Th. and E.M. on 23 July 1992, as the defence had had no possibility
to prepare for their questioning. It found that the contents of these
witnesses' statements, which had led to the reopening of the
proceedings, had long been known to the defence.
As regards the applicant's complaint about the amendment of the
indictment at the hearing of 15 October 1992, the Supreme Court found
that the indictment in the renewed proceedings had referred to the
damage caused to the insurance company by the payment of the insurance
sum which it made in 1987 and 1988. Thus, it had already related not
only to the attempt to deceive employees of the B. insurance company
but, without explicitly saying so, also to the deception of the civil
courts which had only occurred after the applicant had been acquitted.
B. Relevant domestic law
1. Rules concerning disqualification of or challenge to a judge
S. 68 of the Code of Criminal Procedure (Strafprozeßordnung)
governs the disqualification (Ausschließung) of judges.
S. 68 para. 2 provides that a judge shall be disqualified from
participating or deciding in the trial proceedings if he has acted as
investigating judge in the same case or if he has participated in the
decision on the appeal against the indictment. If a trial has to be
repeated following an appeal or a plea of nullity, judges who have
participated in the first trial are disqualified from participating in
the new trial.
After the time of the relevant facts, a paragraph 3 has been
added to S. 68 by amendment of 1993, Federal Law Gazette (Bundesgesetz-
blatt) 1993/526, which entered into force on 1 January 1994. It
provides that a judge who has acted as investigating judge in the same
case or has participated in the former trial, is disqualified from
deciding on a request for reopening of the proceedings and from
participating in the new trial.
S. 72 allows the parties to the proceedings to challenge
(ablehnen) a judge, if they can show that there are reasons for
doubting his complete impartiality.
2. Rules governing the reopening of proceedings
According to S. 355, the Public Prosecutor may only request the
reopening of proceedings, as regards an offence of which the accused
has been acquitted, if it is not yet statute-barred and if the judgment
has either been based on a forged document or a false statement or has
been obtained by bribing or another offence (subpara. 1) or if the
acquitted makes a confession or if there are new facts, which alone or
in connection with evidence obtained in the former proceedings appear
suitable to serve as a basis for the punishment of the accused
(subpara. 2).
S. 357 provides that the request for a re-opening of the
proceedings has to be lodged with the court of first instance, which
has conducted them previously (para. 1). The investigating judge has
to inquire into the facts underlying the request. Subsequently, in
cases under S. 355, the accused has to be heard. The court of first
instance decides upon the reopening of the proceedings, sitting in
camera (para. 2). An appeal may be lodged against this decision within
two weeks with the court of second instance (para. 3).
S. 358 states that the decision to reopen the proceedings sets
aside the former judgment as far as the offence is concerned, in regard
of which the reopening is granted.
According to S. 359, the decision to reopen the proceedings
restores them to the stage of preliminary investigations. The
investigations are to be conducted or completed, having regard to the
decision granting the reopening of the proceedings and to the new
evidence. The provisions on the discontinuation of the preliminary
investigations and on preferring the indictment do also apply
(para. 1). If the new proceedings reach trial stage, a new judgment has
to be given (para. 2). The same remedies which are available against
any other judgment may be brought against this judgment (para. 5).
COMPLAINTS
1. The applicant complains under Article 6 of the Convention about
two aspects of the proceedings relating to the reopening of the
criminal proceedings against him.
Firstly, he complains under Article 6 para. 1 that the Klagenfurt
Regional Court, when deciding on reopening the criminal proceedings
against him, was not an impartial tribunal. He submits that Judge
Orasche was disqualified from participating in this decision, as he
participated in the former trial. He argues that this view was
confirmed by the subsequent 1993 amendment of S. 68 of the Code of
Criminal Procedure.
Secondly, he complains under Article 6 para. 3 (c) that the
decision to reopen the proceedings was taken in camera and that he had
no possibility to defend himself either in person or through counsel.
2. The applicant also complains under Article 6 para. 1 of the
Convention that the Klagenfurt Regional Court, when convicting him
following the new trial in the reopened proceedings, was not an
impartial tribunal. He submits that Judge Greller was disqualified from
participating in the new trial, as he had, prior to the decision to
reopen the proceedings, requested a German Court under letters rogatory
to hear E.M. as a witness. Further, Judges Greller and Lutschounig were
disqualified from participating in the new trial as they had
participated in the decision to reopen the proceedings and had thereby
examined the new facts and evaluated the probability of his conviction
in the new proceedings.
3. Further, the applicant complains under Article 6 para. 2 that the
presumption of innocence was violated by the reopening of the
proceedings against him, which is only admissible if the prosecution
of the offence at issue is not yet statute-barred. He submits in
particular that the duration of the former proceedings was excessive
and should therefore not be calculated as having interrupted the
limitation period. Further he submits that the statements made by R.Th.
and E.M. did not constitute new evidence.
4. Finally, the applicant complains under Article 6 para. 3 that his
defence rights were violated in the reopened proceedings.
a. He submits under Article 6 para. 3 (b) that he did not have
enough time to prepare his defence. He argues that the preliminary
investigations did not last long enough and that the Public
Prosecutor's Office, at the trial on 15 October 1992, amended the
indictment, thus, changing the accusation.
b. He submits under Article 6 para. 3 (d) that his requests to hear
B.Sch. and L.F. as witnesses were dismissed. Further he complains that
the witnesses R.Th. and E.M. were heard at the trial of 23 July 1992
against his objection. Moreover, he claims that they were wrongly
informed that no further criminal proceedings could be conducted
against them in Austria. In his opinion, the prosecution of their
offences was not yet statute-barred.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention about two aspects of the proceedings relating to the
reopening of the criminal proceedings against him. Firstly, he
complains under Article 6 para. 1 (Art. 6-1) that the Klagenfurt
Regional Court, when deciding on reopening the criminal proceedings
against him, was not an impartial tribunal. Secondly, he complains
under Article 6 para. 3 (c) (Art. 6-3-c) that the decision to reopen
the proceedings was taken in camera.
The Commission, recalling its constant case-law that Article 6
(Art. 6) does not apply to proceedings concerning the reopening of a
trial, finds that only the new proceedings, after the reopening has
been granted, can be regarded as concerning the determination of a
criminal charge (No. 7761/77, Dec. 8.5.87, D.R. 14, p. 173 with further
references). Thus, the applicant's complaints about the reopening of
the criminal proceedings against him are incompatible ratione materiae.
It follows that this part of the application is incompatible
ratione materiae within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
2. The applicant also complains under Article 6 para. 1 (Art. 6-1)
of the Convention that the Klagenfurt Regional Court, when convicting
him following the new trial in the reopened proceedings, was not an
impartial tribunal.
Article 6 para. 1 (Art. 6-1), so far as relevant reads as
follows:
"In the determination ... of any criminal charge against him,
everyone is entitled to a fair... hearing ... by an ... impartial
tribunal ... ."
The applicant submits in particular that Judge Greller was
disqualified from participating in the new trial, as he had, prior to
the decision to reopen the proceedings, requested a German Court under
letters rogatory to hear E.M. as a witness. Further, Judges Greller and
Lutschounig were disqualified from participating in the new trial as
they had participated in the decision to reopen the proceedings and had
thereby examined the new facts and evaluated the probability of his
conviction in the new proceedings.
The Commission recalls that the existence of impartiality for the
purposes of Article 6 para. 1 (Art. 6-1) must be determined according
to a subjective test, that is on the basis of the personal conviction
of a particular judge in a given case, and also according to an
objective test, that is ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in this respect
(see Eur. Court H.R. De Cubber judgment of 26 October 1984, Series A
no. 86, pp. 13-14, paras. 24-26; Hauschildt judgment of 24 May 1989,
Series A no. 154, p. 21, para. 46).
The applicant has not alleged that there was any personal bias
on the part of the judges in question. The main thrust of his argument
is that Judges Greller and Lutschounig, when sitting as trial judges
lacked objective impartiality, as they had performed certain functions
or taken decision at the pre-trial stage. Therefore, it falls to be
examined whether the applicant's fear as regards the impartiality of
these judge was objectively justified (Hauschildt judgment, loc. cit.,
para. 48).
In this context, the Commission recalls that the mere fact that
a trial judge has also made pre-trial decisions in the case cannot be
held as in itself justifying fears as to his impartiality. What matters
is the scope and nature of these decisions (Hauschildt judgment, loc.
cit., p. 22, paras. 50-51; Sainte-Marie judgment of 16 December 1992,
Series A no. 253-A, p. 16, para. 32; Nortier judgment of
24 August 1993, Series A no. 267, p. 15, para. 33).
As regards the function exercised by Judge Greller prior to the
decision on the reopening of the proceedings, the Commission observes
that he, being the head of the competent court department, transferred
the file to the investigating judge, requesting him to hear the
applicant on the question of reopening the proceedings. Further, he
requested a German court for judicial assistance as regards the
questioning of one witness. However, he heard neither the applicant nor
any witnesses himself. The Commission finds that there are no
circumstances to indicate that Judge Greller acquired any detailed
knowledge of the case or of the person of the accused, which would have
put him at risk of forming a pre-conceived opinion about the question
of the applicant's guilt (De Cubber judgment, loc. cit., p. 15-16
para. 29; Hauschildt judgment, loc. cit., p. 22-23, paras. 51-52).
Judges Greller and Lutschounig, when deciding on the reopening
of the proceedings against the applicant, had to decide, in accordance
with S. 355 of the Austrian Code of Criminal Procedure, whether the new
facts presented by the prosecution appeared suitable to serve as a
basis for the applicant's punishment either alone or in connection with
the evidence obtained in the former proceedings. This may have
occasioned misgivings on part of the applicant, which cannot, however,
necessarily be treated as objectively justified.
The Commission observes that the decision granting the reopening
of the proceedings restores the proceedings to the stage of preliminary
investigations. According to S. 359 para. 1 of the Code of Criminal
Procedure these investigations may either be discontinued or lead to
a new indictment. If the case, like the present one, attains trial
stage, the court proceeds to a full hearing of the case. Furthermore,
as the Supreme Court pointed out in its decision of 14 December 1993,
the Austrian legislation does not exclude judges, who ruled on the
reopening of the proceedings, from participation in the new trial.
Having regard to the rules of the Austrian Code of Criminal
Procedure, the Commission finds that the questions which Judges Greller
and Lutschounig had to answer when deciding on the reopening of the
proceedings, were not the same as those which were decisive for the new
judgment. They only had to ascertain summarily whether the prosecution
had shown prima facie grounds for the reopening of the proceedings
(Hauschildt judgment, loc. cit., p. 22, para. 50; Sainte-Marie
judgment, loc. cit., p. 16, para. 33; Nortier judgment, loc. cit.,
p. 16, para. 35).
In conclusion, the Commission finds that the applicant's fear
that Judges Greller and Lutschounig lacked impartiality cannot be
regarded as objectively justified.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Further the applicant complains under Article 6 para. 2
(Art. 6-2) that the presumption of innocence was violated by the
reopening of the proceedings against him, which is only admissible if
the prosecution of the offence at issue is not yet statute-barred and
if there are new facts. He submits in particular that the duration of
the former proceedings was excessive and should therefore not be
calculated as having interrupted the limitation period. Further he
submits that the statements made by R.Th. and E.M. did not constitute
new facts.
As far as the applicant can be understood as complaining that the
Austrian courts did not correctly apply the law, 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
were it considers that such errors might have involved a possible
violation of the Convention (No. 21283/93, Dec. 5.4.94, D.R. 77-A,
pp. 81, 88). Article 6 para. 2 (Art. 6-2) of the Convention requires
that no representative of the State declares that a person is guilty
of having committed an offence before that guilt is established by a
court (No. 7986/77, Dec. 3.10.78, D.R. 13, p. 73). The contested
findings that specific requirements for reopening the proceedings were
met, do not contain any finding of guilt. The Commission, therefore,
finds that the applicant's submissions do not raise an issue under
Article 6 para. 2 (Art. 6-2) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant complains under Article 6 paras. 3 (b) and (d)
(Art. 6-3-b, 6-3-d) that his defence rights were violated in the
renewed proceedings.
Article 6 para. 3 (Art. 6-3), so far as relevant, reads as
follows:
"Everyone charged with a criminal offence has the following
minimum rights:
b. to have adequate time and facilities for the preparation of
his defence;
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 the guarantees in paragraph 3 of
Article 6 (Art. 6-3) are specific aspects of the right to a fair trial
set forth in paragraph 1 (Art. 6-1). The question of a violation of
these provisions must, therefore, be examined having regard to the
proceedings as a whole (see Eur. Court H.R. Windisch judgment of
27 September 1990, Series A no. 186, p. 9, para. 23).
a. The applicant submits under Article 6 para. 3 (b) (Art. 6-3-b)
that he did not have enough time to prepare his defence. In this
respect, he argues that the preliminary investigations did not last
long enough and that the Public Prosecutor's Office, at the trial on
15 October 1992, amended the indictment, thus, changing the accusation.
As regards the applicant's complaint that the preliminary
investigations in the renewed proceedings did not last long enough, the
Commission notes that the decision to reopen the proceedings was taken
on 22 November 1991. Thereby they were restored to the state of
preliminary investigations in accordance with S. 359 para. 1 of the
Code of Criminal Procedure. The indictment against the applicant was
preferred on 28 February 1992 and the trial was reopened on
6 July 1992. Moreover, in the renewed proceedings, the applicant was
represented by Mr. Clementschitsch, who had also acted as his counsel
in the former proceedings and was, thus, familiar with the file. The
Commission finds that the applicant failed to show in what respect the
duration of the preliminary investigations violated his right to
prepare his defence.
Further, as regards the applicant's complaint that the indictment
was changed during the trial, the Commission notes that the Public
Prosecutor's Office, at the trial on 15 October 1992, amended the
indictment. It was no longer assumed that the applicant had deceived
employees of the insurance company but that he had deceived organs of
the civil courts, thereby obtaining judgments obliging the insurance
company to pay him ATS 6,4 million. The applicant was still charged
with aggravated fraud.
The Commission finds that the amendment of the indictment served
to clarify one legal aspect of the charge against the applicant.
However, it neither changed the legal classification of the offence nor
did it introduce essentially new facts. In this respect the Commission
attaches weight to the fact that the applicant himself, in his appeal
against the indictment of 23 March 1992, had pointed out that he had
not deceived employees of the insurance company, as the latter had only
paid him upon judgment of the competent civil courts. Moreover, the
amendment was made more than one month before the end of the trial. The
applicant, assisted by counsel, still had four hearings, namely those
held on 13, 16, 17 and 18 November 1992, to present his arguments
relating to the amended charge. In these circumstances, the Commission
finds that the applicant failed to show that the contested amendment
of the charge infringed his defence rights.
b. The applicant submits under Article 6 para. 3 (d) (Art. 6-3-d)
that his requests to hear B.Sch. and L.F. as witnesses were dismissed.
Further, he complains that the witnesses R.Th. and E.M. were heard at
the trial of 23 July 1992 against his objection. Moreover, he claims
that they were wrongly informed that no further criminal proceedings
could be conducted against them in Austria. In his opinion, the
prosecution of their offences was not yet statute-barred.
As regards the last of these complaints, the Commission refers
to the above-mentioned case law, according to which it is in general
not competent to deal with alleged errors in the application of
domestic law. As regards the further complaints, 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)
leaves it to them, again as a general rule, to assess whether it is
appropriate to call witnesses; it does not require the attendance and
examination of every witness on the accused's behalf (see 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).
In the present case, the applicant's requests to hear B.Sch. and
L.F as witnesses were refused by the Klagenfurt Regional Court inter
alia for lack of relevance. The Court also dismissed the applicant's
motion that R.Th. and E.M. should not be heard at the trial of
23 July 1992, as they had not been summoned for this date and the
defence was not prepared for their questioning. It found that there was
a risk that they might not appear again in court. The Supreme Court
confirmed these decisions. As regards the witnesses R.Th. and E.M. it
added that the contents of their statements had led to the reopening
of the proceedings and had long been known to the defence.
In these circumstances, the Commission finds no sufficient
grounds to form the view that there were any special circumstances
which could prompt the conclusion that either the failure to hear the
witnesses B.Sch. and L.F. or the hearing of R.Th. and E.M. was
incompatible with Article 6 (Art. 6) of the Convention.
In conclusion, the Commission finds that there are no indications
in the file that the applicant, represented by counsel, could not duly
present his defence or that the proceedings were otherwise unfair.
It follows that this part of 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) (C.L. ROZAKIS)
Full & Egal Universal Law Academy