AS TO THE ADMISSIBILITY OF
Application No. 20830/92
by M. W.
against Austria
The European Commission of Human Rights sitting in private
on 7 April 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 26 June 1992
by M. W. against Austria and registered on 22 October 1992 under
file No. 20830/92;
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 facts of the case as submitted by the applicant may be
summarised as follows.
The applicant is an Austrian national, born in 1970, who
resides in Vienna. Before the Commission he is represented by
Mr. R. Soyer, a lawyer practising in Vienna.
A. Particular circumstances of the case
On 10 May 1991 the applicant was taken in detention on
remand on the suspicion of having attempted to rob J.R., his
grandfather, on the same day. On the same day, the applicant and
J.R. were questioned by police officer M.G. at J.R.'s apartment
and again by police officer H.T. at the police station. J.R.
stated on both occasions that the applicant had threatened him
with a pistol to obtain money.
In the subsequent preliminary investigations before the
investigating judge J.R. availed himself of the right granted to
close relatives of the suspected person, to refuse to give
evidence, pursuant to Section 152 para. 1 of the Code of Criminal
Procedure (Strafprozeßordnung).
On 6 September 1991 the Vienna Public Prosecutor's Office
(Staatsanwaltschaft) preferred a bill of indictment against the
applicant, accusing him of attempted aggravated robbery
(versuchter schwerer Raub) and extortion (Erpressung).
On 5 February 1992 the trial (Hauptverhandlung) against the
applicant took place before a Court of Assizes of the Vienna
Regional Court for Criminal Matters sitting with a jury
(Geschwornengericht).
According to the transcript of the trial, the Court of Assizes
heard the applicant as accused and four police officers and
J.R.'s neighbour as witnesses and a psychiatric expert. At the
trial J.R. again availed himself of the right to refuse to give
evidence.
The applicant stated that on the evening of 10 May 1991 he
had had a dispute about money with J.R. who had previously
repeatedly given him money. He admitted that he had had a gas
pistol with him that day which he had later hidden outside in the
shrubbery close to the parking lot. He could not imagine having
threatened his grandfather with this pistol and he could not
remember having threatened his grandfather on earlier occasions,
though it was possible as he was often drunk. He also admitted
that the pistol later found was his own.
L.S., J.R.'s neighbour, stated that J.R. had repeatedly
complained to her that his grandson was asking him for money and
did not work. On 10 May 1991 J.R. had knocked on her door and
asked her for help and to call the police as the applicant had
been there and had threatened him with a pistol asking for money.
J.R. had appeared to be scared. She had phoned the police.
Police officer M.G. stated that on 10 May 1991 he was called
to J.R.'s apartment. There he talked to J.R. and drew up a
report on the statements of J.R. This report was read out in
court.
Police officers M.H. and D.S. made further submissions on
the events upon their arrival in J.R.'s apartment.
Police officer H.T. stated that on 10 May 1991 he had
questioned J.R. and the applicant. The statements of J.R. were
read out in court.
According to the transcript of the trial the applicant's
lawyer moved at the end of the hearing that the statements of
J.R. made to the police, as reported by police officers M.G. and
H.T., should not be used in the trial and that the statements of
witness L.S. should not be taken into account, as they would
circumvent the right of J.R. to refuse to give evidence. The
bench of the Court of Assizes dismissed these requests.
On 5 February 1992 the jury found the applicant guilty of
attempted aggravated robbery and extortion. The Court of Assizes
found that on 10 May 1991 the applicant had forced J.R. to give
him money by threatening him with a gas pistol. Between January
1991 and 10 May 1991 he had repeatedly obtained money from J.R.
by threatening to destroy his apartment. According to the record
of their deliberations (Niederschrift) the jury based their
verdict on the following evidence: "[applicant's] own statements;
plausible statements of the witnesses: L.S. and 3 police
officers; weapon was found" ("Eigene Verantwortung; glaubwürdige
Aussage der Zeugen: L.S. u. der 3 Pol. Beamten; Sicher-stellung
der Waffe"). The bench sitting with the jury set the applicant's
sentence at six years' imprisonment.
On 16 March 1992 the applicant filed a plea of nullity
(Nichtigkeitsbeschwerde) and an appeal (Berufung) with the
Supreme Court (Oberster Gerichtshof). He complained that the
statements of J.R. before the police had been used in the trial
although J.R. had availed himself of his right to refuse to give
evidence. Also the statements of L.S. had been used in the trial
to circumvent J.R.'s right to refuse to give evidence.
On 23 June 1992 the Supreme Court dismissed the applicant's
plea of nullity and appeal. It found that the Court of Assizes
had acted correctly when dismissing the applicant's request not
to use the statements of J.R. before the police and the
statements of L.S. The fact that a witness had availed himself
of the right to refuse to give evidence did not exclude the
hearing of another witness on what the former had told him
earlier outside court. Moreover, the right not to give evidence
was intended to protect the witness from a moral dilemma and not
to serve the rights of the defence. Therefore, the Court of
Assizes had been obliged to hear L.S. as a witness in order to
gather corroborating evidence as regards the statements of J.R.
before the police. For the same reason it had had to hear the
police officers M.G. M.H., D.S. and H.T. as witnesses on the
spontaneous statements of J.R., made immediately after the police
officers had arrived on the place of the events and on the
circumstances under which these statements had been made.
B. Relevant domestic law
Under Article 152 para. 1, sub-paragraph 1, of the Code of
Criminal Procedure, the members of the accused's family as
referred to in Article 72 of the Criminal Code are exempted from
giving evidence.
Paragraphs 2 and 3 of Article 252 of the Code of Criminal
Procedure are worded as follows:
"2. The records of on-the-spot inspections and police
reports, as well as the accused's criminal record and any
other material documents or evidence, shall be read out at
the hearing, unless both parties agree to dispense with
this proceeding.
3. After each such document has been read out, the accused
shall be asked if he wishes to make any comments thereon."
COMPLAINTS
The applicant complains under Article 6 paras. 1 and 3 (d)
of the Convention that the statements his grandfather J.R. made
before the police at the pre-trial stage were read out in court
at the trial, though J.R. availed himself of the right not to
give evidence. At no stage of the proceedings had he had the
possibility to question this central witness of the prosecution.
Nevertheless, the Austrian courts based his conviction
exclusively on the statements of this witness.
THE LAW
The applicant complains under Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention that at his trial the
statements his grandfather J.R. made before the police were read
out in court, although J.R. availed himself of the right not to
give evidence.
Article 6 paras. 1 and 3 (d) (Art. 6-1-, 6-3-d) of the
Convention, as far as relevant, reads as follows:
"(1) In the determination ... of any criminal charge
against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law. ..."
(3) Everyone charged with a criminal offence has the
following minimum rights:
(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 contained in
paragraph 3 of Article 6 (Art. 6-3) of the Convention are
specific aspects of the general concept of fair trial set forth
in paragraph 1 of this Article. In the circumstances of the
present case, it will consider the applicant's complaint under
the two provisions taken together (see Eur. Court H.R., Isgrò
judgment of 19 February 1991, Series A no. 194-A, p. 12,
para. 31).
The Commission recalls further that the admissibility of
evidence is primarily a matter for regulation by national law
and, as a rule, it is for the national courts to assess the
evidence before them. The Commission's task is to ascertain
whether the proceedings considered as a whole, including the way
in which evidence was taken, were fair. All the evidence must
normally be produced in the presence of the accused at a public
hearing with a view to adversarial argument. This does not mean,
however, that the statement of a witness must always be made in
court and in public if it is to be admitted in evidence; in
particular, this may prove impossible in certain cases. The use
in this way of statements obtained at the pre-trial stage is not
in itself inconsistent with paragraphs 3 (d) and 1 of Article 6
(Art. 6-1, 6-3-d), provided that the rights of the defence have
been respected. As a rule, these rights require that the
defendant be given an adequate and proper opportunity to
challenge and question witnesses against him, either when he was
making his statement or at a later stage of the proceedings (Eur.
Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p.
10, paras. 26 and 27).
J.R., the victim of the offences in question had, following
statements on the events made before police officers M.G. and
H.T., availed himself of his right to refuse to give evidence.
Thereupon, at the applicant's trial, J.R.'s earlier statements
were read out in court and the police officers concerned gave
testimony about the circumstances in which these statements had
been made. Unlike the cases of anonymous witnesses, J.R. was
known in particular to the applicant who was in a position to
raise doubts as to J.R.'s credibility, and he could react during
the trial to the evidence given by the police officers as well
as by the witness L.S., who also referred to statements which
J.R. had made to her outside court. He also had the possibility
to put forward his own version of the events. In this respect
the Commission notes that the applicant did not clearly claim to
be innocent.
The Commission further notes that, according to the note on
their deliberations, the jury did not expressly rely on the
statements J.R. had made to police officers M.G. and H.T. They
relied on the applicant's own statements and the statements of
witnesses, namely three police officers M.G., H.T. and M.H, and
the applicant's neighbour L.S. Besides a recount of the events
which J.R. had given to them, these statements also contained the
personal assessments of these witnesses. Lastly, the jury also
relied on the fact that the applicant on the day of the events
admittedly had a pistol with him and that this pistol was found
close to the victim's home.
The Commission finds that the Court of Assizes could
reasonably consider the statements of J.R., as read out in court,
to be corroborated by the evidence before it. The fact that it
was impossible to question J.R. at the trial did not, therefore,
in the circumstances of the case, violate the rights of the
defence and did not deprive the applicant of a fair trial.
It follows that 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, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second
Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy