AS TO THE ADMISSIBILITY OF
Application No. 20953/92 Application no. 21049/92
by Robert LORICH by Gerhard LORICH
against Austria against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 applications introduced on 8 September 1992
by Robert and Gerhard Lorich against Austria and registered on
16 November and 9 December 1992 respectively under file Nos. 20953/92
and 21049/92;
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 applicants are cousins and both Austrian citizens who are
presently detained in prison in Graz-Karlau. Robert Lorich was born
in 1965 and Gerhard Lorich in 1962. They are both represented by
Mr. F. Insam a lawyer practising in Graz who also defended them in the
domestic proceedings.
It follows from their statements and the documents submitted that
both applicants were convicted on 12 November 1991 by unanimous verdict
of a jury (Geschworene) at the Graz Regional Court (Landesgericht) of
having committed together on 20 October 1990 an armed robbery (schwerer
Raub). They were sentenced to 9 years (Gerhard Lorich) and 10 years
(Robert Lorich) imprisonment respectively. Gerhard Lorich who was in
detention remand since 25 June 1991 was given credit for the period
which he had spent in detention pending trial.
It follows from the trial record of 11 and 12 November 1991 that
the applicants had been incriminated by one H.S., an accomplice who was
at the relevant time suspected of being a receiver (Hehler). H.S. had
travelled with the applicants to Hamburg shortly after the crime had
been committed and had pledged a gold ring, which was part of the
stolen property, in a Hamburg pawnshop. H.S. had stated during the
investigations that he had received the ring from the applicants.
Another witness, Mrs. W.D., a prostitute, and former friend of Robert
Lorich gave evidence to the effect that a pump-gun used at the robbery
had been lent to the applicants by her father. She also stated that
she had provided the applicants with gloves and a hood corresponding
to those which the authors of the crime had worn. Furthermore she
stated that the day after the crime had been committed both applicants
had bought new clothes and that she had found in the room which she
shared with Robert Lorich a jewellery bag containing inter alia, a
man's gold pocket watch carved with initials, which she no longer
recalled. (The watch was identified as being part of the stolen
property. It belonged to a friend of the victim and the initials
corresponded to his name). The victim of the robbery stated, as
witness, that she could not identify the applicants on sight as they
had been masked but her description of the difference in size of the
two robbers corresponded to that of the applicants. She also stated
that at a test (Hörprobe) made during the investigation proceedings
when she was asked to listen to several voices, she clearly identified
one of the applicant's voices as belonging to the robber who had spoken
to her and who had ordered her to hand over the key to her safe.
The victim stated at the trial that she maintained her prior
deposition and underlined that at the time of the robbery she fully
concentrated on the voice as there was no other possibility to identify
the robbers later. She insisted that among a hundred voices she would
always recognise the robber's voice. The victim also recognised the
aforementioned pump-gun as the weapon used by the robbers. Another
witness, one W.R., stated that the applicant, Robert Lorich, had tried
to sell him jewellery, inter alia, a gold pocket watch.
Other witnesses gave further evidence which was considered to be
corroborating.
A police officer, H., stated as witness that subsequent to the
robbery the applicant Robert Lorich had called on him in his office to
inform him that a certain "Peter" had offered to sell him jewellery.
The precise description which this applicant gave of the jewellery made
it likely that it was that which been stolen on 20 October 1990.
Another police officer, Sw., stated as witness that he had
interrogated H.S. who told him that the applicants had carried out the
robbery and that he had received the stolen property from them. H.S.
told this officer also that he was not prepared to confirm this
statement in writing or at a court hearing. Sw. further told the court
that H.S. himself had a valid alibi in respect of the time when the
robbery was carried out.
A further officer, F., likewise stated when heard as witness that
he was present when H.S. mentioned that everybody in Graz knew that the
applicants had committed the robbery. He, H.S., would however have to
leave Graz if he signed a deposition incriminating the applicants.
The defense thereupon requested that H.S. be heard as witness by
the trial court. The court granted this request and suspended the
hearing from 16.20 to 17.00 hrs. in order to have H.S. brought to the
court by the police witnesses. As H.S. could not be found the hearing
was adjourned to the following day. However, the police was still
unable to find H.S. A visit effected by the police at an address
indicated by the defense was to no avail.
The trial court noted that H.S. was being prosecuted against, in
separate proceedings, on the charge of receiving stolen goods
(Hehlerei) and had been released from detention on remand the day
before.
The defense then objected to the reading out of the police
protocol on H.S.'s statements and complained that the trial court had
failed to see to it that H.S. was present as witness.
The taking of evidence was terminated on 12 November 1991 at
about 18.00 hrs. The protocols concerning H.S.'s depositions before
the police had not been read out.
Subsequently the court elaborated in camera the questions to be
put to the jury. They were discussed with the parties and partly
amended. Then the jury started its deliberations following a summing
up (Rechtsbelehrung) given to them by the presiding judge. The
indictment and court files were placed at the jury's disposal. The
verdict was pronounced in the late evening.
The applicants lodged a plea of nullity (Nichtigkeitsbeschwerde)
and an appeal against conviction (Berufung).
On 10 March 1992 the Supreme Court (Oberster Gerichtshof)
rejected both remedies as being unfounded.
Insofar as the applicants had complained that the pre-trial
statements of the supposed accomplice, H.S., had been made available
to the jury although they had not been read out at the trial the
Supreme Court found that the statements in question had been referred
to and discussed with the defendants when they were heard personally.
Thus they had been introduced into the trial and their being made
available to the jury did not violate any procedural guarantees. The
Supreme Court further stated that it had been impossible to hear H.S.
as a witness as he had been released from prison shortly before the
trial and his whereabouts were unknown. Attempts to have him brought
to the court by the police failed. Insofar as the applicants had
complained that their requests to take evidence on the length of their
stay in Hamburg had been rejected, the Supreme Court pointed out that
the hotel list had been checked by the police and that in any event it
was irrelevant whether or not the applicants had stayed one more night
in that city. All other complaints made by the applicants were
likewise considered to be unfounded.
COMPLAINTS
The applicants submit that they did not have a fair trial. They
mainly complain that H.S. who incriminated them when he was heard by
the police as co-accused had an interest in incriminating them.
Therefore he should have been heard in their presence so that they
could have put questions to this witness. They contest that H.S. was
not available for the trial hearing. They further consider that the
evidence against them was insufficient and did not justify their
conviction. They invoke a violation of Article 6 paras. 1 and 3 (d)
of the Convention.
THE LAW
In view of the similarity of the applications, the Commission
finds it convenient to join the applications (Rule 35 of the
Commission's Rules of Procedure).
The applicants allege a violation of their right to a fair trial
as guaranteed by Article 6 (Art. 6) of the Convention mainly on the
ground that a co-accused, one H.S., who is being prosecuted in separate
proceedings as a receiver, was not heard as witness at their trial
although he had incriminated them when heard by the police at the pre-
trial investigations.
It has first to be pointed out that the admissibility of evidence
is a matter for regulation by national law and, as a rule, it is for
the national courts to assess the evidence before them. The task of
the Convention organs is to ascertain whether the domestic proceedings
considered as a whole, including the way in which evidence was taken,
were fair. This is the fundamental point at issue and since the
guarantees in paragraph 3 of Article 6 (Art. 6-3) are specific aspects
of the right to a fair trial set forth in para. 1, the Commission has
to consider the complaint under the two provisions taken together (see
Eur. Court H.R., Isgrò judgment of 19 February 1991, Series A no. 194,
p. 11 para. 31).
In the present case it is undisputed that the trial was
interrupted and eventually postponed until the following day in order
to have the police search for H.S. whose whereabouts were unknown.
There is consequently no doubt that a serious attempt was made to
secure his attendance in court as a witness.
The Commission also notes that the protocols relating to H.S.'s
statements made before the police were not read out as evidence at the
trial. The policemen who had interrogated H.S. as a suspect had stated
as witnesses that while H.S. mentioned the applicants to be the robbers
he refused to sign a paper by which he would incriminate them. On the
other hand the Commission notes that according to the trial record
extensive evidence was produced at the trial in the presence of the
accused and subject to adversarial argument. The victim of the robbery
stated that she clearly identified the voice of one of the two accused
and she identified the weapon used by the robbers. This weapon had
according to the evidence given by Mrs. W.D. been lent to the
applicants by her father. W.D. also stated that shortly after the
robbery she found a jewellery bag in the possession of the applicant
Robert Lorich which inter alia contained a man's gold pocket watch
carved with initials which she could no longer recall. Other witnesses
gave further corroborating evidence against the applicants.
It can in these circumstances not be found that the applicants'
conviction is either based on insufficient evidence or on evidence
other than that obtained in a public hearing at the trial and with
regard to which the applicants had adequate and proper opportunity to
challenge and question the various witnesses heard by the court.
There is consequently no appearance of a violation of Article 6
paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention and it follows
that the applications have to be rejected as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECIDES TO JOIN THE TWO APPLICATIONS, AND
DECLARES THE APPLICATIONS INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy