AS TO THE ADMISSIBILITY OF
Application No. 24154/94
by Heinz RABENSEIFNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 August 1993 by
Heinz RABENSEIFNER against Austria and registered on 18 May 1994 under
file No. 24154/94;
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 facts of the case as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1948, is an Austrian national. When
lodging his application, he was detained in a prison at Hollabrunn.
In 1988 criminal investigations were started against the
applicant on the suspicion of his having committed theft and fraud.
On 24 August 1989 the Vienna Public Prosecutor's Office
(Staatsanwaltschaft) drew up the bill of indictment against the
applicant charging him with thirty-three counts of theft, including
twenty-seven counts of theft of cars, as well as of two counts of
fraud. The Prosecutor's Office, referring to the relevant provisions
of the Penal Code (Strafgesetzbuch), considered that between January
1986 and April 1988 the applicant, as a member of a gang operating from
Hungary, had been involved in the theft of further specified cars in
Vienna. Moreover, between June and December 1988 he had broken into
cars and stolen various objects and also committed fraud. The
Prosecutor's Office stated that the applicant had admitted his guilt
except for the charges relating to theft of cars.
In the criminal proceedings against him, the applicant was
assisted by defence counsel.
On 8 February 1990 the Vienna Regional Criminal Court
(Landesgericht für Strafsachen) convicted the applicant of altogether
seventeen counts of receiving stolen cars, of four counts of theft and
of two counts of fraud and sentenced him to four years' imprisonment.
The applicant was acquitted of the remainder of the charges. The Court
found that between March 1986 and May 1988 the applicant had driven
seventeen stolen cars from Austria to Hungary and must have been aware
of the possibility that these cars had been stolen. The Court noted
the applicant's defence according to which he had not stolen the cars
himself and had thought that the cars had been lawfully acquired. The
Court considered that the applicant's defence according to which he had
not stolen the cars himself could not be refuted. However, taking into
account the circumstances in which the various cars were handed over
to the applicant, the Court was convinced that the applicant must have
been aware of the possibility that the cars had been stolen. The Court
dismissed the applicant's requests for the hearing of further witnesses
on the grounds that the applicant had admitted having transported
seventeen cars to Hungary and that the witnesses could not give any
evidence regarding the question whether or not he had known that the
cars had been stolen.
On 17 May 1990 the Austrian Supreme Court (Oberster Gerichtshof),
upon the applicant's plea of nullity (Nichtigkeitsbeschwerde), quashed
his conviction of receiving stolen cars and his sentence and, to this
extent, referred the case back to the Regional Criminal Court. The
remainder of the applicant's plea of nullity was dismissed. The
Supreme Court found that the Criminal Court had incorrectly refused the
applicant's requests for the taking of further evidence. The Supreme
Court noted that the witnesses named by the defence were the
applicant's alleged business partners and could possibly give evidence
as to whether the applicant had known about the fact that the cars
concerned had been stolen.
On 31 August 1990 the Vienna Regional Criminal Court, in
proceedings separated from the main proceedings, fixed a sentence of
two and a half months' imprisonment in respect of the applicant's
conviction to the extent that it had been confirmed by the Supreme
Court.
In the resumed main proceedings the Vienna Regional Court
arranged for the hearing of a witness in Luxembourg in proceedings
under letters rogatory. The witness G., one of the Hungarian
accomplices having received the cars concerned in Hungary, was
questioned by an Investigating Judge in the presence of a sworn
interpreter of Hungarian origin and also in the presence of a Public
Prosecutor and the applicant. According to the record of the
questioning, the applicant put questions to the witness concerned.
On 10 November 1992, in the resumed main proceedings, the Vienna
Regional Criminal Court convicted the applicant of seventeen counts of
receiving stolen cars and, taking the sentence imposed on
31 August 1990 into account, sentenced him to a further eighteen
months' imprisonment.
The Court found that between March 1986 and May 1988 the
applicant had driven seventeen stolen cars from Austria to Hungary.
However, it could not be established that the applicant had himself
stolen these cars. The Court proceeded on the basis of the applicant's
statements according to which he had transported seventeen cars from
Vienna to Hungary. As regards his defence that he had believed that
these cars were lawfully acquired and not stolen, the Court noted that
G., one of the accomplices having received the cars concerned in
Hungary, had stated that they had never raised the issue of the origin
of the cars in their conversations. Nevertheless, having regard to the
rather doubtful circumstances of the trips, the Court came to the
conclusion that the applicant must have been aware of the possibility
that the cars concerned had been stolen.
In its judgment, the Court dismissed the applicant's request to
produce the Hungarian files concerning criminal proceedings against an
accomplice prosecuted in Hungary which could, according to the
applicant, disclose further members of the gang as possible witnesses
on the question of whether the origin of the cars concerned had been
disguised by the persons involved in the events. In this respect, the
Court noted that the facts to be proven had already been established
on the basis of the applicant's statements and the testimony of the
witness heard in proceedings under letters rogatory. The applicant's
similar request to produce the criminal files concerning a person
involved in the above activities of the gang was dismissed for the same
reasons. The applicant's request to investigate with a view to hear
as a witness a Hungarian accomplice was dismissed on the ground that
the applicant's statements on this witness were too vague to enable his
identity and whereabouts to be established. The applicant's request
to hear the Hungarian accomplice L. was dismissed on the ground that
L. had absconded in order to evade prosecution and his whereabouts were
unknown. The applicant's request to hear G. again as a witness was
dismissed on the ground that there were no indications to support the
applicant's allegations of procedural shortcomings on the occasion of
G.'s hearing in proceedings under letters rogatory. As regards the
applicant's request to produce L.'s Hungarian criminal file in order
to prove that L. had often made false statements incriminating others,
the Court noted that translations of the relevant parts of the files
concerned were already available and that its judgment was not based
on any of L.'s statements incriminating the applicant.
On 27 May 1993 the Supreme Court dismissed the applicant's plea
of nullity. The Supreme Court found in particular that the Regional
Criminal Court's decisions to dismiss the applicant's various requests
for the taking of further evidence or for further investigation had not
violated his defence rights. As regards the witnesses I.M. and L. the
Supreme Court noted that both were out of reach and that any attempt
to hear them was therefore bound to fail. As regards the request to
produce the L.'s criminal files, the Supreme Court considered that the
applicant's conviction was not based on L.'s incriminating statements,
and that the question of L.'s credibility was therefore irrelevant.
The Supreme Court also confirmed the Regional Criminal Court's
reasoning that the applicant must have been aware of the possibility
that the cars concerned had been stolen.
On 22 July 1993 the Vienna Court of Appeal dismissed the
applicant's appeal against sentence (Berufung).
COMPLAINTS
The applicant complains about his conviction and the alleged
unfairness of the criminal proceedings against him. He considers in
particular that the Austrian courts wrongly found him guilty of
receiving stolen cars. Moreover, in the bill of indictment, he had
been charged with theft - rather than with receiving stolen cars - and
he had, therefore, not been able properly to prepare his defence
against those charges. Furthermore, he complains about the taking and
assessment of evidence, in particular that he had not been able to put
any questions to L. He relies on Article 6 paras. 1 and 3 (a) and (d)
of the Convention.
THE LAW
1. The applicant complains about his conviction and the alleged
unfairness of the criminal proceedings against him. He relies on
Article 6 paras. 1 and 3 (a) and (d) (Art. 6-1, 6-3-a, 6-3-d) of the
Convention.
Article 6 (Art. 6) of the Convention, so far as relevant,
provides as follows:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law. ...
...
3. Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
...
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.
..."
With regard to the judicial decision 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 to 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 (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, p. 81; Eur. Court
H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288, p. 20,
para. 61; Klaas judgment of 22 September 1993, Series A no. 269, p. 17,
para. 29).
The applicant has lodged various complaints about the
proceedings. The Commission finds appropriate it to examine these
submissions from the angle of paragraph 1 (Art. 6-1) taken together
with the principles inherent in paragraph 3 of Article 6 (Art. 6-3),
as the guarantees in paragraph 3 are specific aspects of the general
concept of a fair trial set forth in paragraph 1 (Art. 6-1) (Eur. Court
H.R., Unterpertinger judgment of 24 November 1986, Series A no. 110,
p. 14, para. 29).
As regards the applicant's complaint that he had not been duly
informed about the charge of receiving stolen goods, the Commission
recalls that Article 6 para. 3 (a) (Art. 6-3-a) gives an accused person
the right to be adequately informed of the cause and the nature of the
accusation in order to enable him to prepare his defence accordingly
(Eur. Court H.R., Brozicek judgment of 19 December 1989, Series A no.
167, pp. 18-19, paras. 38-42; No. 10857/84, Dec. 15.7.86, D.R. 48, p.
106).
The Commission notes that, in the bill of indictment of 1989, the
applicant was charged with, inter alia, having stolen numerous cars in
Austria which he had later driven to Hungary. Following the first set
of trial proceedings, the Vienna Regional Criminal Court, in its
judgment of 1990, found that there was no sufficient proof in respect
of the charge that he had stolen the cars concerned. However,
according to the findings of the Court, the facts that he had
transported the stolen cars to Hungary and must have been aware of the
possibility that they had been stolen, constituted the offence of
receiving stolen cars. The Supreme Court quashed this conviction on
the ground that the applicant's requests to take evidence on the
question of whether he had known of the unlawful origin of the cars had
been unduly dismissed. In the second set of proceedings following the
applicant's successful plea of nullity, the charges of numerous counts
of theft remained the principal charges against the applicant.
However, the subsidiary question of whether he had committed receiving
stolen cars was, in the light of the Supreme Court judgment, also
pursued in these proceedings, and in particular in the applicant's
defence.
The Commission considers that the bill of indictment, to the
extent that it addressed the factual elements constituting the offence
of receiving stolen goods merely as part of the principal charge of
theft, might not be regarded as adequate information within the meaning
of Article 6 para. 3 (a) (Art. 6-3-a). However, already in the course
of the first set of trial proceedings, the applicant's defence covered
not only the principal charges of theft, but also the subsidiary
offence of receiving stolen cars. Following his successful plea of
nullity against his conviction of receiving stolen cars in 1990, the
applicant pursued his defence against the subsidiary charge of
receiving. There is no indication that the applicant, assisted by
defence counsel, had not been informed adequately about the nature and
cause of the accusations against him to the extent necessary to prepare
his defence and exercise his defence rights.
With regard to the applicant's complaints about the Regional
Criminal Court's taking and assessment of evidence, the Commission
recalls that, as a general rule, it is for the national courts to
assess the evidence before them as well as the relevance of the
evidence which the defendants seek to adduce. More specifically,
Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them, again as a
general rule, to assess whether it is appropriate to call witnesses,
in the "autonomous" sense given to that word in the Convention system;
it does not require the attendance and examination of every witness on
the accused's behalf (cf., Eur. Court H.R., Bricmont judgment of 7 July
1989, Series A no. 158, p. 31, para. 89; Vidal judgment of 22 April
1992, Series A no. 235-B, pp. 32-33, para. 33). However, it is the
task of the Convention organs to ascertain whether the taking and
assessment of evidence rendered the proceedings as a whole unfair. In
this respect, the Commission also recalls that all the evidence must
normally be produced in the presence of the accused at a public hearing
with a view to adversarial argument (cf. Eur. Court H.R., Asch judgment
of 26 April 1991, Series A no. 203, p. 10, paras. 26-27).
In the present case, the applicant submits in particular that he
could not put questions to the witness L. However, the Commission
notes that the Regional Criminal Court dismissed the applicant's
request to hear the Hungarian accomplice L. on the ground that L. had
absconded in order to evade prosecution and his whereabouts were
unknown. Furthermore, his request to produce the Hungarian criminal
file regarding L. in order to prove that L. had often made wrong
statements incriminating others, was dismissed on the grounds that
translations of the relevant parts of the files concerned were already
available and that the Regional Criminal Court's judgment was not based
on any of L.'s statements incriminating the applicant. The Supreme
Court confirmed that the applicant's defence rights had not been
disregarded, considering in particular that two witnesses L. were out
of reach and that the applicant's conviction was not based on L.'s
incriminating statements.
Having regard to all material before it, the Commission finds no
sufficient grounds to conclude that the failure to hear further
witnesses or to investigate further with a view to identify further
witnesses was incompatible with Article 6 (Art. 6).
In sum, taken individually none of the matters complained of by
the applicant discloses any appearance of a violation of the rights of
the defence under Article 6 (Art. 6) of the Convention. Furthermore,
the Commission finds that, taken cumulatively, the alleged procedural
deficiencies did not result in rendering unfair, for the purposes of
Article 6 (Art. 6), the criminal proceedings considered as a whole.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy