AS TO THE ADMISSIBILITY OF
Application No. 27025/95
by P. ST.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
N. BRATZA
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 20 February 1995
by P. ST. against Austria and registered on 12 April 1995 under file
No. 27025/95;
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 1961, is an Austrian national. He is
currently detained at Josefstadt prison in Vienna. In the proceedings
before the Commission he is represented by Mr. F. Knöbl, a lawyer
practising in Vienna.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 27 February 1993 the applicant was taken into detention on
remand on the suspicion of having, since 1988, sexually abused his
daughter, born in 1980. In these and the following proceedings the
applicant was represented by counsel.
On 8 March 1993, in the course of the preliminary investigation
(Voruntersuchung), the applicant requested that a medical examination
of his daughter be carried out in order to clarify whether anal
intercourse had taken place as alleged by her. On 15 March 1993 he
repeated this request and added that it would be ascertainable if such
an act had been carried out between an adult man and a girl aged
between eight and thirteen. Further, he submitted that his daughter had
obtained her knowledge about the alleged sexual acts by watching
pornographic videos, which he kept in the apartment.
On 26 July 1993 the trial against the applicant was opened before
the Vienna Regional Criminal Court (Landesgericht für Strafsachen),
sitting as a court of two professional and two lay judges
(Schöffengericht). The applicant pleaded not guilty. Then the court
heard the applicant's daughter as a witness. It also heard the
applicant's wife and a number of other members of his family as well
as the police officer to whom his daughter had made her statement.
Further, it heard an expert in youth psychiatry as regards the ability
of the applicant's daughter to testify and as regards the possibility
that she had been influenced by watching pornographic videos. The
defence put a number of questions to the applicant's daughter, the
expert and some of the other witnesses.
Subsequently, the applicant requested that a medical examination
of his daughter be carried out as she would have sustained injuries as
a consequence of the anal intercourse alleged by her. He also requested
that the opinion of a medical expert be taken in order to prove that
his daughter would necessarily have sustained injuries from such
intercourse and that these injuries would still be ascertainable and
to take the opinion of an expert in the field of homosexuality in this
context. Further, he requested a medical examination of his penis as
it showed a particularity, namely a birth mark, which his daughter must
have noticed if the alleged acts had actually taken place. The court
dismissed the first request and reserved its decision as regards the
others. The hearing was adjourned.
On 23 September 1993 the applicant requested that one of the
pornographic videos which he kept in the apartment be shown at the
trial in order to prove that it contained scenes which were similar to
the incidents described by his daughter. He further requested that the
psychiatric expert be questioned as to how far his daughter could have
been influenced by watching such a film. He also repeated the requests
for the taking of evidence on which the court had not yet decided.
According to the applicant, his counsel, prior to the hearing,
requested the presiding judge to make the necessary arrangements for
showing the pornographic video in court. However, the presiding judge
told him that he would dismiss the respective request for the taking
of evidence.
On 10 November 1993 the Vienna Regional Criminal Court continued
the trial. The applicant again pleaded not guilty. The court then heard
the school-friend of the applicant's daughter, to whom she had first
mentioned that she had been abused by her father as well as the school
psychologist, to whom she had subsequently given an account of the
events. The defence put a number of questions to both witnesses.
At the end of the questioning, the defence made further requests
for the taking of evidence. According to the minutes defence counsel
repeated his request as regards a medical examination of the
applicant's daughter. Further, he requested that the pornographic video
in question be shown to the psychiatric expert and that he extend his
opinion to the question whether the applicant's daughter, inspired by
this film, had invented her allegations against him. The court
dismissed all requests for the taking of further evidence as being
irrelevant.
At the close of the hearing the Regional Court convicted the
applicant of sexual abuse of a minor (Unzucht mit Unmündigen) and abuse
of his parental authority (Mißbrauch eines Autoritätsverhältnisses) and
sentenced him to two years' imprisonment, of which sixteen months were
suspended on probation.
The court found that the applicant had repeatedly, from 1988
until January 1993 sexually abused his daughter, born in 1980, in that
he had called her to the bathroom of the apartment and had forced her
to satisfy him either with her hand or orally. In 1990 he had once
penetrated her anally but had stopped after a few movements. A second
time he had intended to carry out anal intercourse but desisted in view
of the girl's resistance. Finally, in the beginning of 1993 the
applicant had forced his daughter to take a bath with him and had put
his finger into her vagina.
In establishing the facts the court relied primarily on the
statement of the applicant's daughter. It found that the account she
had given of the events at issue was credible. Having regard to the
personal impression she had made, the court found that she was not
capable of wrongly accusing her father. In assessing her statements the
court pointed out in particular that she had made her submissions
repeatedly and that she had described details of the sexual acts which
she could not know at her age unless she had actually been the victim
of these acts. The court described the applicant's daughter as shy and
reserved. Consequently, she had first confided her story to her school-
friend, had then given the first detailed description of the events to
the school psychologist and had repeated these statements before a
female police officer and the investigating judge. At the trial she had
made her statement in tears but had confirmed her earlier submissions.
Further, the court relied on the expert opinion of the youth
psychiatrist, according to which she was capable of realizing the
consequences of her statements, and did not show any tendency to invent
things or to act for the sake of attracting attention.
As regards the applicant's defence that his daughter had obtained
her knowledge about the alleged sexual acts by watching some
pornographic videos, the court noted in particular that the youth
psychiatrist had excluded the possibility that the allegations against
her father were only a projection of what she might have seen in a
film. The applicant's daughter had denied seeing such films. Further,
the court noted that the presiding judge had looked through the videos
at issue. However, they did not contain any scenes similar to the
incidents described by the applicant's daughter. Further, the court
noted the applicant's argument that there had always been other persons
in the apartment who would have noticed the incidents at issue.
However, from the statements of the witnesses heard it could not be
inferred that the applicant and his daughter were never alone in the
apartment. Moreover, it was possible that the applicant was in the
bathroom with her while other persons, in particular children, were
present.
Further, the court dealt with the applicant's requests for the
taking of evidence. As to the request for a medical examination of his
daughter, the court noted that the incident at issue had taken place
more than three years ago and that the applicant's daughter had stated
that she had not been injured. Thus, no traces would be ascertainable
any more. As to the applicant's request for examination of his penis,
the court noted that his daughter had made use of her right to refuse
an answer to this question. Finally, it was not clear, why the
applicant had requested that an expert for homosexuality be heard.
On 1 March 1994 the applicant filed a request for rectification
of the minutes. He claimed that several requests for the taking of
evidence had not been entered in the minutes. He claimed that, at the
second hearing, he had requested a medical examination of his penis,
as it showed particularities, in order to prove that his daughter did
not know them and had never even seen him naked. His request for a
medical examination of his daughter had been recorded incompletely. He
had requested an examination in order to clarify the question whether
anal intercourse with a girl of about nine years, was possible without
injuries. Finally, he had requested that the psychiatric expert amend
his opinion.
On 2 March 1994 the applicant filed a plea of nullity and an
appeal (Nichtigkeitsbeschwerde und Berufung). He referred in particular
to his requests for the taking of evidence of 15 March and
23 September 1993. Moreover, he claimed that he had requested a medical
examination of his penis. Finally, he had requested that the
psychiatric expert amend his opinion as regards the possible influence
of the said pornographic videos on his daughter's statement. He
complained that all his requests, some of which had not been entered
in the minutes, had been dismissed. Further, the applicant complained
that the court had exclusively relied on his daughter's statements
which it found credible although she had not been able to answer
relevant questions at the hearing.
On 19 April 1994 the Regional Court dismissed the applicant's
requests for the rectification of the minutes. It noted that it had
obtained a statement of the keeper of the minutes (Schriftführer).
According to her statement and the recollection of the presiding judge
the requests at issue had not been made as claimed by the applicant and
the minutes were, thus, correct.
On 10 August 1994 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's plea of nullity.
The Supreme Court found that the formal requirements for raising
a plea of nullity were not met as regards any requests for the taking
of evidence which had not been made or repeated at the hearing at which
the judgment was given. According to the minutes, the applicant had
only made two requests at the hearing of 10 November 1993, namely that
a medical examination of his daughter be carried out and that the
pornographic videos be shown to the psychiatric expert who should then
extend his opinion to the question of a possible influence of such
films on the statements of the applicant's daughter. As to the first
request the Supreme Court found that, given the lapse of time a lack
of ascertainable traces would not exclude that anal intercourse had
taken place. Moreover, such intercourse had only been carried out once
with a few movements and had been attempted a second time. As regards
the second request, the Supreme Court found that the psychiatric
expert, at the hearing of 26 July 1993, had dealt with the applicant's
arguments as regards the possible influence of pornographic videos on
his daughter's statements. The applicant had failed to show why a
further questioning of the expert would have been necessary. The
Supreme Court concluded that the applicant's defence rights had not
been violated by the refusal of his requests for the taking of
evidence. The applicant's further submissions were an attempt to
challenge the Regional Court's assessment of evidence and were as such
inadmissible.
On 13 October 1994 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal against the sentence. Upon the Public
Prosecutor's appeal and having regard to a further conviction of
27 May 1993 by the Donaustadt District Court (Bezirksgericht) which had
found the applicant guilty of having assaulted his wife, the court
changed the sentence to three years' imprisonment, not suspended on
probation.
COMPLAINTS
The applicant complains under Article 6 about the unfairness of
the criminal proceedings against him. He complains in particular that
his requests for the taking of evidence were dismissed. Further, he
submits that some of his requests for the taking of evidence were not
recorded in the minutes. The applicant also complains that the
presiding judge was biased. In this respect he alleges that the latter
told him before the hearing of 10 November 1993 that he would dismiss
his request to show a particular pornographic video in court. The
applicant claims that a motion challenging the judge for bias, which
is in principle available under the Code of Criminal Procedure, would
not have offered prospects of success.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention that the criminal proceedings against him were unfair and
that the presiding judge at the Regional Court was biased.
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 and public hearing ... by an
independent and impartial tribunal ... ."
a. As to the applicant's complaint that his requests for the taking
of evidence were dismissed, the Commission recalls that the
admissibility of evidence is primarily governed by the rules of
domestic law, and as a general rule it is for the national courts to
asses the evidence before them. The Commission's task is to ascertain
whether the proceedings, considered as a whole, were fair (Eur. Court
HR., Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238,
p. 20, para. 43).
In the present case the Supreme Court found that the applicant
had failed to fulfil the formal requirements for raising a plea of
nullity as regards any requests for the taking of evidence which had
not been made or repeated at the hearing at which the judgment was
given, i.e. the one on 10 November 1993. The Commission finds that, in
this regard, the applicant has failed to exhaust domestic remedies in
accordance with Article 26 (Art. 26) of the Convention (cf. No.
13467/87, Dec. 10.7.89, D.R. 62 p. 269). As regards the two requests
for the taking of evidence, which the applicant, according to the
minutes, had made at the hearing of 10 November 1993, the Supreme Court
gave detailed reasoning for finding that the first one was irrelevant
and that the second one had essentially been dealt with. It concluded
that the applicant had not been unduly restricted in his defence rights
by their rejection.
The Commission notes that the Regional Court dealt extensively
with the question of the credibility of the applicant's daughter. Apart
from the personal impression, which she had made, the court had regard
to the fact that, at the trial, she had confirmed the statements which
she had made earlier to various persons, including her school-friend,
the school psychologist and a police officer. All of these persons as
well as the applicant's daughter were heard as witnesses and the
applicant, assisted by counsel, had the possibility to question them.
Further the court heard a psychiatric expert, who dealt inter alia with
the question raised by the defence, whether the allegations by the
applicant's daughter could have been influenced by watching a
pornographic video.
The Commission further notes the applicant's related complaint
that some of his requests for the taking of evidence were not entered
in the minutes. The Commission observes that a remedy was available to
the applicant in this respect, namely a request for the rectification
of the minutes. However, the Regional Court dismissed the said request
by decision of 19 April 1994, stating that according to the
recollection of the keeper of the minutes and the presiding judge the
requests at issue had not been made as claimed by the applicant.
In the circumstances of the case, the Commission finds that the
applicant failed to show that the taking of evidence was arbitrary and
therefore contrary to Article 6 para. 1 (Art. 6-1) of the Convention.
b. As to the applicant's complaint that the presiding judge at the
Regional Court was biased, the question arises whether the applicant
has exhausted domestic remedies as required by Article 26 (Art. 26) of
the Convention.
The Commission recalls that a remedy within the meaning of this
Article must be effective, that is capable of rectifying directly the
situation complained of (cf. No. 18079/91, Dec. 4.12.91, D.R. 72
p. 263). The applicant claims that a motion challenging the presiding
judge for bias, though available in principle, would not have been
effective. However, the Commission is not required to decide upon this
question, as the complaint is inadmissible for the following reasons.
The Commission recalls that the existence of impartiality for the
purpose 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
(Eur. Court HR., Fey v. Austria judgment of 24 February 1993, Series
A no. 255-A, p. 12, para. 28).
The applicant alleges that the presiding judge at the Regional
Court told him before the hearing of 10 November 1993 that he would
dismiss his request to show the pornographic video in court. However,
having regard to its above findings concerning the taking of evidence,
the Commission considers that the applicant's submissions do not
suffice to put the personal impartiality of the presiding judge into
doubt. The applicant failed to submit any other facts. His fear that
the said judge lacked impartiality can, therefore, not be regarded as
objectively justified.
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy