AS TO THE ADMISSIBILITY OF
Application No. 16514/90
by Norbert KRITSCH
against Austria
The European Commission of Human Rights sitting in private on
11 May 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 11 December 1989
by Norbert Kritsch against Austria and registered on 26 April 1990
under file No. 16514/90;
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 1952 and at present
detained in prison in Vienna. He is represented by Mr. R. Soyer, a
lawyer in Vienna.
The facts as agreed between the parties may be summarised as
follows.
In the afternoon of 10 November 1988 the applicant and an
accomplice, K., were arrested by the police on the premises of a Vienna
railway station. According to the police report, information had been
received about suspected drug peddlers and the two corresponded to the
descriptions given. K. offered resistance and tried to reach for his
pistol. He therefore had to be overwhelmed by three policemen and
suffered slight injuries. Two of the policemen were likewise slightly
injured but in view of the unimportance of the injuries no medical
examination was effected. The applicant tried to escape but eventually
stopped running when the police threatened to shoot at him. He offered
passive resistance to his arrest. A third man succeeded in escaping.
The police found 9.75 kgs of hashish in a bag which had been carried
by K. The applicant had 88,000 and K. 10,800 AS in their possession.
On 12 November 1988 the applicant was heard as a suspect by a
judge.
He stated that for more than ten years he had smoked hashish more
or less regularly but that he was not an addict. He then stated that
of his own free will he was prepared to confess his drug dealing in the
hope of receiving a lenient sentence. He admitted that, because the
turn-over of his coffee shop was insufficient resulting in a difficult
financial situation, he had accepted the proposal of one W. to be
supplied with hashish for resale. Partners of W. sold him successively
quantities of 1-2 kgs of hashish, amounting to a total of approximately
30-35 kgs. He alleged that he did not know more about his suppliers
other than their first names, and a telephone number. One of them was,
so he stated, living in Milan, Italy, and spent most of his time
travelling abroad. A day before his arrest he had ordered 10 kgs of
hashish, his co-accused K. having found a buyer for such a quantity.
The applicant also confessed to having sold hashish inter alia to his
ex-wife S.K., and to E.K. and L.J. He further admitted to having tried
to escape when the police surprised him and his accomplice K., but he
denied having offered active resistance. The money found on him at his
arrest allegedly constitued receipts from his coffee shop.
On 10 May 1989 the applicant was convicted by the Vienna Regional
Court (Landesgericht) of drug peddling between July 1988 and
10 November 1988 and of an attempted sale of 9.75 kgs of hashish to one
M. He was sentenced to three and a half years' imprisonment. The
accomplice K. received the same punishment.
According to the judgment the applicant is a drug addict and has
five previous convictions, four of them likewise related to drug
offences. Both the applicant and his co-accused made full confessions
after their arrest and maintained these confessions before the
investigating judge. At the trial the applicant still admitted having
dealt with hashish but minimized the importance of his deals. He also
alleged for the first time that M. had acted as an agent provocateur
and that after his arrest he had been beaten by the police and
ill-treated with a plastic bag which was put over his head. The
Regional Court observed in this respect that neither the co-accused at
the trial nor a further co-accused who was prosecuted in separate
proceedings had made similar allegations. Furthermore the applicant
had maintained his confession when heard by the investigating judge
three days after his arrest. Therefore his defence at the trial was not
credible. The applicant's request to hear officers allegedly
responsible for the agent provocateur M. was rejected on the ground
that the applicant had not substantiated his allegation of having been
induced to the sale of 9.75 kgs of hashish and only presumed M. was an
undercover agent. His request was therefore considered to be an
inadmissible attempt to have further investigations made without a
concrete object of the proposed evidence (Erkundungsbeweis). In any
event, so the Regional Court pointed out, the officers in question were
not obliged to name an undercover agent and furthermore it was not
unlawful for an undercover agent to manifest an interest in the
purchase of drugs in order to obtain evidence against drug dealers. The
Regional Court also based its judgment on the evidence given by
witnesses E.K., S.K., H.P. and L.J., who stated to have bought hashish
from the applicant.
The applicant's plea of nullity (Nichtigkeitsbeschwerde) was
rejected by the Austrian Supreme Court (Oberster Gerichtshof) on 13
October 1989. Insofar as the applicant complained that when heard by
the police he was not informed of his right to refuse to make any
statements and that he was ill-treated, the Supreme Court observed that
the alleged violations did not constitute a nullity ground. Insofar as
the applicant complained that his request to obtain evidence on the
supposed agent provocateur was disregarded, the Supreme Court stated
that even if the applicant had been unlawfully induced to sell drugs
this did not exclude his criminal responsibility.
The applicant laid criminal charges against the policemen who
arrested and interrogated him. Before that investigations had already
been taken up ex officio. However, having taken evidence and heard
witnesses named by the applicant the Vienna Regional Court decided on
5 December 1990 to discontinue the proceedings.
The applicant also lodged an appeal (Berufung) against sentence.
The appeal was rejected by the Vienna Court of Appeal
(Berufungsgericht) on 4 December 1989. The Court stated that the
applicant's partial confession had already been taken into account as
a mitigating factor by the trial court. It further stated that there
was nothing to show that the applicant was a heroin addict. In this
context it is pointed out that the applicant had himself stated before
the police on 12 November 1988 that he had been "clear" for eight
years. He had also denied being dependent on hashish.
In view of the applicant's allegations at the trial of
ill-treatment by the police, the Public Prosecution ex officio
instituted criminal investigations against the officers in question.
The applicant joined these proceedings as a private party
(Privatbeteiligter) on 31 October 1989. Extensive investigations were
carried out. Inter alia three detainees, H.St., E.W. and E.K., who had
according to another detainee, W.J., been ill-treated, were heard.
Contrary to the applicant's allegations, his co-accused and W.J. denied
however having been ill-treated after their arrest.
On 5 December 1990 the Vienna Regional Court therefore
discontinued the proceedings at the Public Prosecutor's request, on the
grounds that there was insufficient evidence to prove the applicant's
allegations.
COMPLAINTS
The applicant submits that his conviction of drug peddling is
exclusively based on his confession made before the police. He alleges
that he was not informed about his right not to make any statements or
to consult a lawyer. Furthermore he was ill-treated by the police and
forced to confess. He also alleges that initially he refused to supply
M. with drugs as he was not at all accustomed to dealing with large
quantities. He argues that if his request to take evidence on the
background of his attempted deal with M. had been granted, it would
have been proven that at the relevant time he acted under the influence
of drugs and was not criminally responsible. In any event the
intervention of an agent provocateur should have been considered as a
mitigating factor. The applicant invokes Articles 3 and 6 paras. 1 and
3 (b) and (d) of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 December 1989 and registered
on 26 April 1990.
On 6 March 1991 the Commission decided to invite the respondent
Government to submit observations on the admissibility and merits of
the application. After extension of the time-limit the Government's
observations were sent on 6 June 1991, and the applicant's reply was
received on 16 August 1991.
THE LAW
1. The applicant first complains that after his arrest he was
ill-treated by the police. He invokes Article 3 (Art. 3) of the
Convention which prohibits inhuman and degrading treatment.
The Government submit that in this respect the applicant has not
exhausted domestic remedies. They point out that in any event criminal
proceedings were instituted ex officio in consequence of these
allegations but the taking of extensive evidence did not result in
their confirmation. The Government further point out that in prison
the applicant was corresponding with W.J. who likewise alleged that he
had been ill-treated after his arrest, while no such allegation had
been made by the applicant when he was heard by the investigating
judge. The Government conclude that in the circumstances the
applicant's allegations are clearly unfounded.
Even assuming that domestic remedies are exhausted, the
Commission notes that extensive investigations carried out by the
competent Austrian authorities did not confirm the applicant's
allegations about ill-treatment by the police. The Commission also
notes that the applicant first made these allegations at his trial
several months after his arrest and has not explained why he did not
raise his accusations before the investigating judge and did not at the
time ask for a medical examination in order to have possible marks or
injuries resulting from the alleged ill-treatment established in an
official medical report.
In these circumstances the Commission cannot find any appearance
of a violation of Article 3 (Art. 3) of the Convention.
2. Insofar as the applicant complains that his right to a fair
trial as guaranteed by Article 6 (Art. 6) of the Convention was
violated in that his conviction is exclusively based on statements
which he allegedly made under duress before the police and without
having been informed about his right to refuse to make any statements,
the Commission refers to its above findings and notes that the
applicant's allegation that he was not informed about his right to
remain silent has likewise not been raised before the investigating
judge although the applicant was assisted by a lawyer on the latter
occasion. In the circumstances of the present case there is
consequently no clear indication proving at least prima facie that at
the police interrogation the applicant's rights as a suspect were
disregarded. In any event the Commission observes that according to
the undisputed findings in the trial court's judgment the applicant
even repeated his confession before the judge who heard him three days
after his arrest. Furthermore the trial court, noting that the
applicant's allegations about ill-treatment by the police were not
confirmed by his accomplices, found them not credible. Finally the
trial court also based its findings on evidence given by witnesses
E.K., S.K., H.P. and L.J. who stated that they had bought drugs from
the applicant.
In these circumstances the Commission cannot find that the
applicant's conviction was exclusively based on his confession made
before the police nor has it been shown that this confession was
obtained by ill-treatment. Furthermore it cannot be found that the
alleged omission by the police to inform the applicant of his right to
make no statements and be defended by counsel affected his position in
such a manner as to amount to a violation of the right to a fair trial
under Article 6 (Art. 6) of the Convention.
3. Insofar as the applicant complains that the trial court refused
to take evidence relating to a supposed undercover agent, the
Commission observes that the right of an accused under Article 6 para.
3 (d) (Art. 6-3-d) to have witnesses examined is not absolute. It is
for the national judge to decide whether or not proposed evidence is
material (cf. Eur. Court H.R., Engel and Others judgement of 8 June
1976, Series A no. 22, p. 38-39, para. 91). The trial court stated
that the applicant did not allege any facts indicating that the
supposed under-cover agent had enticed him in an unlawful manner to
sell drugs. In his submissions before the Commission the applicant has
likewise in no way described his contacts with the alleged undercover
agent. There is consequently nothing to show that the applicant was,
in a manner incompatible with his rights under the Convention, incited
by a third person for whom the respondent Government would be
responsible, to procure hashish.
In these circumstances it cannot be found that the Austrian
courts arbitrarily refused to take evidence in this respect. There is
consequently no appearance of a violation of Article 6 (Art. 6).
It follows that all complaints have to be rejected as being
manifestly ill-founded, in accordance with 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