AS TO THE ADMISSIBILITY OF
Application No. 22542/93
by Abdul Kadir SATIR
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
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 25 January 1993
by Abdul Kadir SATIR against Austria and registered on 27 August 1993
under file No. 22542/93;
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 is a Turkish citizen, born in 1931 and presently
detained in Krems (Austria).
A. The particular circumstances of the case
By a judgment of 3 October 1980 the Munich Regional Court
(Landgericht München I) convicted the applicant of drug trafficking and
sentenced him to seven years' and six months' imprisonment.
In 1990 the Austrian police obtained information from various
sources, in connection with preliminary investigations against two
Turkish citizens, indicating that the applicant was involved in drug
trafficking. In November 1990 the police intercepted and recorded the
applicant's telephone conversations. On 13 December 1990 the applicant
and 15 other Turkish nationals were arrested.
On 15 December 1990 the Salzburg Regional Court (Landesgericht)
ordered the applicant's detention on remand on the grounds set out in
Section 180 paras. 1 and 2 subparas. 1, 2 and 3 (a) of the Code of
Criminal Procedure (Strafprozeßordnung). Referring to the
investigations of the Salzburg police and the results of the telephone
tapping, the Regional Court considered that there was a strong
suspicion that the applicant was dealing with large quantities of
heroin. He was suspected in particular of having transferred the drugs
to Austria with the help of third persons. The applicant, who had
contacts abroad, had been convicted of similar offences and in the
present case important investigations had still to be carried out.
There was therefore also a danger of the applicant's absconding, of
collusion and of committing offences.
The applicant's appeal lodged on 27 December 1990 against this
decision was dismissed by the Linz Court of Appeal (Oberlandesgericht)
on 9 January 1991.
On 3 June 1991 the Public Prosecutor in Salzburg preferred an
indictement against the applicant and four other persons charging them
with drug offences.
On 25 and 26 September 1991 the trial took place before the
Salzburg Regional Court sitting with a jury (Schöffengericht), i.e. two
judges, one of them as presiding judge, and two lay assessors. The
applicant was assisted by defence counsel and an interpreter for the
Turkish language appointed by the Court.
By a judgment of 26 September 1991 the Salzburg Regional Court
convicted the applicant inter alia under the Drug Offences Act
(Suchtgiftgesetz) of having participated as a member of a criminal
association in smuggling heroin from Turkey via Austria to Germany and
sentenced him to 13 years' imprisonment. It further imposed a fine of
20 000 000 AS on him, respectively two months' imprisonment in case
of failure to pay the fine (Ersatzfreiheitsstrafe).
The Regional Court found that the applicant, as the manager of
a hotel and a travel agency near the Austrian-German border, assisted
the members of a well organised criminal organisation in smuggling
large quantities of heroin from Turkey to Germany. The judgment was
based on various items of evidence and testimony, namely the
declarations of members of the organisation who had been arrested in
Austria and Germany, the contents of the applicant's telephone
conversations with H.S., the head of the organisation, and the
applicant's efforts during his detention to incite a co-accused to
withdraw his confessions.
With regard to the sentence, the Regional Court considered as
mitigating circumstances the partial confiscation of circa 3 kg heroin
and the solely attempted importation of 16,9 g heroin, and as
aggravating circumstance, the applicant's previous conviction for drug
offences in Germany.
The applicant filed a plea of nullity (Nichtigkeitsbeschwerde)
with respect to his conviction and an appeal (Berufung) against the
sentence.
On 3 September 1992 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's plea of nullity and referred the applicant's
appeal for decision to the Linz Court of Appeal.
The Supreme Court accepted the Regional Court's reasoning for its
refusal to obtain the evidence requested by the applicant, who had
proposed to submit his passport in order to show that he had not been
several times in Bulgaria at the end of 1989 and the beginning of 1990.
The Supreme Court pointed out that this evidence was not relevant for
the determination of the charges against him and that the Regional
Court had not referred to any such visits. According to the Supreme
Court, the Regional Court had carefully examined the evidence and the
declarations of the co-accused and had taken into account certain
contradictions in their statements. There was no indication that the
Regional Court's conclusions were illogical or arbitrary.
By a judgment of 14 December 1992 the Linz Court of Appeal
dismissed the applicant's appeal. It considered in particular that the
Salzburg Regional Court had correctly assessed the mitigating and
aggravating circumstances. With regard to the increasing drug
criminality at international level and the dangerousness of trafficking
in hard drugs, the first instance court had pronounced an adequate
sentence taking duly into account the social disturbance caused and the
applicant's personal criminal responsibility. As to the fine, the Court
of Appeal found that the Regional Court had not misused its power of
assessment and that there was no ground for reducing the amount of the
fine.
B. Relevant domestic law
Section 113 para. 1 of the Code of Criminal Procedure provides
that a person claiming to be affected by decisions given or delays
caused by the investigation judge in the course of the preliminary
investigations is entitled to appeal to the Review Chamber
(Ratskammer).
Section 180 para. 1 of the Code of Criminal Procedure provides
that a person may only be taken in detention on remand if there is
strong suspicion against him of having committed a particular offence
and if one of the reasons laid down in paras. 1 or 2 is given.
According to paragraph 2 detention on remand may be ordered if there
is a danger of absconding (subpara. 1), a danger of collusion
(subpara. 2) or a danger that the suspect might commit offences
(subpara. 3).
COMPLAINTS
1. The applicant complains under Article 5 para. 1 c) of the
Convention that he was arrested without any reasonable suspicion
against him.
2. The applicant, who maintains to be innocent, complains also of
his conviction and sentence and the alleged unfairness of the
proceedings in several respects.
a) The applicant complains in particular that he was refused the
assistance of a defence counsel when being interrogated by the
investigating judge and that he was refused access to the court file
before the end of the trial.
b) He next complains that the Regional Court was not an impartial
tribunal established by law and that the judges have unduly influenced
the lay assessors. According to him, his case should have been
submitted to an assize court (Geschworenengericht) with fuller
guarantees of impartiality than a jury (Schöffengericht).
c) The applicant further complains that he was not presumed innocent
until proven guilty in accordance with the law, since from the
beginning the Regional Court has refused to obtain the evidence
requested by him and considered him as a drug addict. He invokes
Article 6 para. 2 of the Convention.
d) The applicant also complains under Article 6 para. 3 of the
Convention that his conviction was based on an erroneous assessment of
evidence. He submits in this context that the translation of the
reports of his telephone conversations was incorrect.
e) The applicant next complains that the court decisions have not
been notified to him in Turkish and that a co-accused acted as an
interpreter.
3. Under Article 7 of the Convention the applicant complains that
he was convicted and sentenced for his activity as an undercover agent
of the German authorities. These acts did not constitute criminal
offences.
4. The applicant further complains under Article 8 of the Convention
that the alleged illegal criminal proceedings against him constitute
a breach of the right to respect for his private and family life.
5. The applicant finally complains under Article 13 of the
Convention that there was no neutral and efficient control of
violations of the Convention and no effective remedy in Austria.
THE LAW
1. The applicant complains under Article 5 para. 1 c)
(Art. 5-1-c) of the Convention that his detention on remand was
unlawful in that there were no reasonable suspicions against him.
Article 5 para. 1 c) (Art. 5-1-c) reads as follows:
"Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and
in accordance with a procedure prescribed by law:
(...)
c. the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so (...)"
The Commission recalls that the reasonable suspicion in Article 5
para. 1 c) (Art. 5-1-c) of the Convention does not mean that the
suspected person's guilt must at that stage be established and proven,
and it cannot be a condition for arrest and detention pending trial
that the commission of the offence with which the person concerned is
charged has been established. It is precisely the purpose of the
official investigation, which detention is intended to facilitate, to
prove the reality and nature of the offenses charged (see No. 8224/78,
Dec. 5.12.78, D.R. 15 p. 211; No. 9627/81, Dec. 14.3.84, D.R. 37 p. 15;
No. 10803/84, Dec. 16.12.87, D.R. 54 p. 35; Eur. Court H.R., Murray
judgment of 28 October 1994, Series A no. 300, para. 55).
In the present case the applicant was taken into detention on
remand by order of the Salzburg Regional Court of 15 December 1990 on
the strong suspicion of having committed drug offences. This suspicion
was largely based on the police investigations carried out and on the
results of the telephone tapping. The Commission notes that Section 180
para. 1 of the Austrian Code of Criminal Procedure allows to put a
person in detention on remand, if there is strong suspicion against him
of having committed an offence. Furthermore, the decision of the
Salzburg Regional Court was confirmed by the Linz Court of Appeal on
9 January 1991.
In conclusion, the Commission finds that the applicant was
lawfully detained and that there were reasonable grounds for suspecting
him of having committed an offence within the meaning of Article 5
para. 1 (c) (Art. 5-1-c).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains of his conviction and sentence.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that under 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. The
Commission refers on this point to its established case-law (see, e.g.,
No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81, 82 and 88).
It is true that in the present case the applicant complains under
Article 6 (Art. 6) of the Convention also of the fairness of the
criminal proceedings which led to his conviction.
Article 6 (Art. 6) of the Convention provides, so far as relevant
to the present case, 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. ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to 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;
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be
given it free when the interests of justice so
require;
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;
e. to have the free assistance of an interpreter if
he cannot understand or speak the language used in
court."
The applicant has referred not only to Article 6 para. 1
(Art. 6-1) of the Convention but also to paras. 2 and 3 of this
provision. In this respect the Commission recalls that the requirements
of para. 3 of Article 6 (Art. 6-3) are specific aspects of the general
concept of a fair hearing guaranteed in para. 1 of the same Article
(Art. 6-1) (cf., e.g., Eur. Court H.R., F.C.B. v. Italy judgment of
28 August 1991, Series A no. 208-B, p. 20, para. 29). The Commission
will therefore examine the applicant's complaints from the point of
view of these two provisions in conjunction.
a) The applicant submits that he had been questioned by the
investigating judge in the absence of a defence counsel and that he was
refused access to the file.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of Article 6 (Art. 6) of the Convention as, under Article 26
(Art. 26) of the Convention, it may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law.
The Commission notes that the applicant has failed to raise in
an appeal to the Review Chamber (Ratskammer) of the Salzburg Regional
Court the above complaints in pursuance of Section 113 para. 1 of the
Code of Criminal procedure.
It follows that the applicant has not complied with the
requirement as to the exhaustion of domestic remedies contained in
Article 26 (Art. 26) of the Convention.
This part of the application must, therefore, be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
b) The applicant also complains that the professional judges at the
Regional Court have unduly influenced the lay assessors and that the
Regional Court sitting with a jury (Schöffengericht) was not an
impartial tribunal established by law. According to him, his case
should have been submitted to an assize court (Geschworenengericht).
Even assuming that the applicant has exhausted domestic remedies
in this respect as required by Article 26 (Art. 26) of the Convention,
the Commission recalls that the existence of impartiality for the
purposes 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
(cf., inter alia, Eur. Court H.R., Padovani judgment of 26 February
1993, Series A no. 257-B, p. 20, para. 25).
As to the subjective test, the personal impartiality of a judge
must be presumed until there is proof to the contrary (Padovani
judgment, loc. cit., para. 26).
Under the objective test, it must be determined whether, quite
apart from the judge's personal conduct, there are ascertainable facts
which may raise doubts as to his impartiality. What is decisive are not
the subjective apprehensions of the suspect, however understandable,
but whether, in the particular circumstances of the case, his fears can
be held to be objectively justified (cf.,e.g.,Eur. Court H.R., Nortier
judgment of 24 August 1993, Series A no. 267, p. 15, para. 33).
However, the Commission finds that the applicant's complaints as
to the lack of impartiality of the judges in question or to the
competence of the Regional Court sitting with a jury have not been
substantiated. The Commission observes in particular that the applicant
has failed to show that the Regional Court sitting with a jury did not
meet the requirements as to a "tribunal established by law" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. In the light
of this finding the Commission need not examine the applicant's
complaint that his case has not been submitted to an assize court.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
c) The applicant complains that he was not presumed innocent until
proven guilty in accordance with the law. He invokes Article 6 para. 2
(Art. 6-2) of the Convention.
The Commission recalls that the presumption of innocence will be
violated if, without the accused's having previously been proved guilty
according to law, a judicial decision concerning him reflects an
opinion that he is guilty (Eur. Court H.R., Barberà, Messegué and
Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 67
et seq.).
In the present case the applicant does not adduce any argument
which would indicate that the presumption of innocence was disregarded
in the proceedings at issue, other than the assessment of evidence made
by the Regional Court. It does not appear from the case-file that
during the proceedings the Regional Court, before finding the applicant
guilty on the basis of the evidence, took decisions reflecting the
opinion that the applicant had committed the acts which he was charged
with.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
d) The applicant complains that the assessment of evidence made
throughout the proceedings was arbitrary. He submits that he was
convicted on insufficient evidence, contrary to the principle that the
guilt must be firmly established.
The Commission recalls that it is primarily for the national
courts to assess the evidence before them. The Convention organs' task
is to ascertain whether the proceedings considered as a whole,
including the way in which evidence was taken, were fair (Eur. Court
H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,
para. 26).
In the present case there is no indication that the proceedings
were unfairly conducted or that the applicant, who was represented by
a lawyer, could not adduce any evidence which he regarded as being
pertinent or to put forward any argument he considered relevant. The
Supreme Court undertook a detailed analysis of the applicant's
complaints, addressing the issue of the assessment of evidence by the
first instance court. It concluded that the lower court had not
overstepped the limits of appreciation of evidence or established facts
in a arbitrary manner in excluding other hypotheses as to the
applicant's guilt. The Commission does not find these conclusions
arbitrary or otherwise unfair. Furthermore, according to the Supreme
Court, the evidence proposed by the applicant was irrelevant. The
Commission does not see how in these circumstances this evidence could
have assisted the applicant.
Accordingly, this part of the application does not disclose any
appearance of a violation of Article 6 para. 1 and Article 6 para. 3
(d) (Art. 6-1, 6-3-d) of the Convention. It follows that it is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
e) The applicant complains that the court decisions have not been
notified to him in Turkish and that a co-accused has acted as an
interpreter.
Even assuming the applicant has exhausted domestic remedies in
this respect, the Commission recalls that Article 6 para. 3 (e)
(Art. 6-3-e) of the Convention guarantees the assistance of an
interpreter if the person charged with a criminal offence "cannot
understand or speak the language used in court".
In the present case, it appears from the file that the applicant
has a good knowledge of the German language. The Commission further
notes that an interpreter for the Turkish language appointed by the
Salzburg Regional Court was present during his trial and that the
applicant was assisted by a German speaking defence counsel.
It follows that this part of the application is again manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant complains under Article 7 (Art. 7) of the
Convention that he was acting as an undercover agent for the German
authorities and that the charges brought against him did therefore not
constitute criminal offences.
Article 7 (Art. 7) of the Convention provides as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the criminal offence
was committed."
However, the Commission recalls that under the terms of
Article 26 (Art. 26) of the Convention, it may only deal with a matter
after all domestic remedies have been exhausted, according to the
generally recognised rules of international law. This condition is not
met by the mere fact that an applicant has submitted his case to the
various competent courts. It recalls that domestic remedies within the
meaning of Article 26 (Art. 26) of the Convention have only been
exhausted if, before the highest domestic body, the applicant has
submitted, at least in substance, his complaint he puts before the
Commission, even without particular reference to the Convention (cf.,
e.g., No. 6861/75, Dec. 14.7.75, D.R. 3 p. 147; Nos. 5573/72 and
5670/72, Dec. 16.7.76, D.R. 7 p. 8; No. 7299/75 and 7496/76, Dec.
4.12.79, D.R. 18 p. 5; No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63).
In this case the applicant failed to raise the issues mentioned
above in his plea of nullity before the Supreme Court. Furthermore, an
examination of the case does not disclose the existence of any special
circumstances which might have absolved the applicant, according to the
generally recognised rules of international law, from raising his
complaints in the proceedings referred to.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and this part of the
application must accordingly be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
4. The applicant further alleges that as a result of the criminal
proceedings his right to respect for his private life as guaranteed by
Article 8 para. 1 (Art. 8-1) of the Convention was violated.
However, the Commission finds that, to the extent that these
proceedings constituted an interference with the applicant's right to
respect for private life, this interference was justified as being
necessary for the prevention of crime which was the principal aim of
the aforesaid proceedings.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant also invokes Article 13 (Art. 13) of the
Convention, which provides that:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
Insofar as the applicant's complaints could raise an issue of
inadequate review procedure for his detention on remand, the Commission
finds that the absence of any remedy falls rather to be dealt with
under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) which form the lex
specialis for complaints under the provisions of Article 5 (Art. 5).
However, the applicant does not adduce any argument which would
indicate that these provisions were disregarded in the present case.
Insofar as issues may arise under Article 6 (Art. 6) of the
Convention with regard to the criminal proceedings brought against the
applicant, the Commission recalls that the requirements of Article 13
(Art. 13) of the Convention are less strict than, and accordingly
absorbed by Article 6 (Art. 6) of the Convention (see Eur. Court H.R.,
Philis judgment of 27 August 1991, Series A no. 209, p. 23, para. 67).
It follows that no separate issue arises under Article 13 (Art. 13) of
the Convention.
Moreover, insofar as the applicant complains of the judgment of
the Salzburg Regional Court, the Commission finds that he had the
possibility of appealing to the Supreme Court, an appellate body with
jurisdiction to quash or modify the orders of the lower courts. There
is no indication on the facts as presented in this case that this
avenue of appeal is not an effective remedy for the purposes of
Article 13 (Art. 13) of the Convention.
It follows that this complaint must be dismissed as 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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (L. ROZAKIS)
Full & Egal Universal Law Academy