AS TO THE ADMISSIBILITY OF
Application No. 23228/94
by M. A.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 11 May 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 16 September 1993
by M. A. against Austria and registered on 10 January 1994 under file
No. 23228/94;
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 was born in Yugoslavia in 1966 and resides in
Austria where he is serving a life sentence. He is represented by Mr.
Karl Bernhauser, a lawyer practising in Vienna.
It follows from his statements and the documents submitted that
on 17 March 1993 he was found guilty of murder and attempted murder by
a jury at the Regional Court in Vienna (Geschworenengericht beim
Landesgericht). He received a life prison sentence.
According to the indictment the applicant's wife had left him and
for this reason he intended having her killed. In the summer of 1992
he tried to hire two compatriots to kill his wife. A certain M.N. did
not accept but a certain G.S., who was constantly short of money,
accepted the applicant's offer and was given money and a pistol.
However, it was his intention not to execute the order. Consequently,
he telephoned the applicant's wife who was living in Bratislava and
warned her, at the same time advising her that she should disappear for
a fortnight. Some days later, on 10 August 1992, the applicant entered
the ground-floor apartment where G.S. lived with his companion and her
seven year old son, I.B. The companion had already left the apartment
as she usually started her work very early in the morning.
The applicant shouted at the sleeping G.S. and then immediately
attacked him with a military knife, not leaving him any opportunity to
defend himself. He inflicted more than twenty fatal knife wounds on
G.S.
The boy, I.B., who slept in the same room, had been woken up by
the noise and, under shock, first said that his step-father had been
killed by batman and he also mentioned the name of a former friend of
his mother, other than G.S. On 24 September 1992, an identification
parade was arranged where the boy identified the applicant as the
murderer. According to the indictment the main evidence was however
furnished by genetic technology. In a garden near the scene of the
crime, jeans and linen shoes had been found with blood stains and an
analysis showed that the blood belonged both to the victim and the
applicant who had a fresh wound on his shin bone which apparently was
a result of having climbed a fence to reach the victim's apartment.
The genetic identification of the blood clearly designated the
applicant. An error was excluded in view of the fact that among ten
thousand people only 54 would have the genetic combination found in the
blood cells.
Furthermore, it is stated in the indictment that following
publication of a photo of the linen shoes in the press, the applicant,
who was known by friends to wear the same type of shoes, bought a pair,
covered them with mud and made the police believe that he had been
wearing them for some time. However, the sole was not worn out and in
addition it had been discovered where the shoes had been bought shortly
before. The saleswoman Mrs. S.S. gave evidence that the applicant
expressly requested size 43 although his size is 41 or 42. This was
considered to be evidence of collusive behaviour. Furthermore, the
indictment indicates as evidence that a scent test was made with a
police dog which clearly identified the shoes found near the scene of
the crime as being the applicant's shoes.
The applicant's wife confirmed that she had been phoned by the
victim and warned about the murder attempt shortly before G.S. was
stabbed to death.
Finally, several witnesses were named to whom G.S. had talked
about his deal with the applicant according to which he was supposed
to kill the applicant's wife.
The applicant's plea of nullity (Nichtigkeitsbeschwerde) and
appeal (Berufung) were rejected by the Supreme Court (Oberster
Gerichtshof) decision of 12 August 1993.
The office of the General Prosecutor (Generalprokuratur) had in
its observations on the applicant's plea of nullity pointed out that
the child I.B. had not been considered to be a witness and therefore
the statements made by the child during the pre-trial investigations
had not been read out at the trial. Rather, the Public Prosecutor
(Staatsanwalt) had argued at the trial that the child's statement could
not be used as evidence, being of no probative value. On the other
hand, as pointed out by the General Prosecutor, the child had
designated the applicant at an identification parade as the murderer.
In these particular circumstances the applicant should have submitted
reasons demonstrating that nevertheless the child would give evidence
in his favour. As he had failed to state such reasons, his plea of
nullity was, in this respect, unfounded. It was further mentioned that
the boy, who had apparently joined his mother, was still under shock
which had likewise been taken into consideration by the trial court
when rejecting the request in question. The Supreme Court followed
this line of reasoning.
COMPLAINTS
The applicant points out that neither he himself nor his defense
counsel were present when the child I.B. was heard in the pre-trial
investigation proceedings and consequently he had no opportunity to put
any questions to him. He therefore considers that the denial to hear
the boy as witness violated his rights under Articles 6 para. 1 and 3
(d) of the Convention.
THE LAW
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. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
It is true that the applicant alleges a violation of Article 6
(Art. 6) of the Convention complaining that an eye-witness of the
murder, namely the child I.B., who was seven years old at the relevant
time, was not heard as witness.
However, the Commission first notes that the statements made by
I.B. during the pre-trial investigations were not used as evidence
against the applicant at his trial. The public prosecution expressly
rejected the possibility of having the boy's pre-trial statements read
out at the trial considering that they had no probative value.
The applicant's conviction of murder seems mainly based on
circumstantial evidence, in particular on the fact that shoes found
near the scene of the crime were identified as being his, as well as
jeans likewise found with blood stains which according to medical tests
could clearly be linked both to the victim and the applicant.
In these particular circumstances there was no necessity for the
defence to question I.B. on his pre-trial statements as they were not
used against the applicant.
On the other hand there was likewise no reason to consider I.B.
as a possible witness for the defence. Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention does not give the accused an absolute
right to have witnesses heard. It is for the trial judge to decide
whether or not evidence offered by the defendant is relevant or not
(cf. No. 10563/83, Dec. 5.7.85, D.R. 44 p. 113).
In the present case the domestic courts pointed out that the boy
had identified the applicant to be the murderer and consequently there
was nothing to show that he might give evidence in the applicant's
favour. In these particular circumstances it cannot be found that the
applicant's request to hear the boy I.B. was arbitrarily rejected.
It follows that there is no appearance of a violation of
Article 6 (Art. 6) and for these reasons must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 3
(Art. 27-3) 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) (A. WEITZEL)
Full & Egal Universal Law Academy