AS TO THE ADMISSIBILITY OF
Application No. 12463/86
by Mehmet SEN
against Austria
The European Commission of Human Rights sitting in private
on 8 September 1988, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 October 1986
by Mehmet SEN against Austria and registered on 17 October 1986 under
file No. 12463/86;
Having regard to the report provided for in Rule 40 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, a Turkish citizen born in 1948, is a labourer
resident at Rankweil in Austria. Before the Commission he is
represented by Dr. W.L. Weh, a lawyer practising in Bregenz.
The facts submitted by the applicant may be summarized as
follows:
I
In the evening of 20 October 1984, a number of persons, among
them the applicant, were at the A.-Restaurant in Bregenz, a locality
frequented mainly by Turkish citizens. At closing time after about
1 am on 21 October 1984, some persons were standing outside the
restaurant. Some shots were fired. Thereafter, the applicant and two
other persons, S.E. and A.Si, got into a car and drove off.
In the morning of 21 October 1984, one of the two managers of
the restaurant, N.I., found bullet shells in front of the restaurant.
He reported this to the police. As a political motive could not be
excluded, the investigations were handed over to the Vorarlberg Police
Direction (Sicherheitsdirektion).
Various persons were questioned by the Bregenz police, whereby
their statements were recorded as minutes (Niederschrift). Thus, N.I.
stated on 3 December 1984 that he had been present when on 21 October 1984
at 2 am, among a group of about 20 persons, a man fired some shots.
N.I. noticed how A.Sö. apparently pushed this man into the car. When
he asked A.Sö. what was happening, he was told to mind his own
business.
Also on 3 December 1984, K.I., the son of the other manager,
told the police that he had been in the restaurant and had not seen
the goings-on, though he had heard that this person had been sitting
at the same table as A.Sö.
On 4 December 1984, A.Sö. stated before the Bregenz police
that he had been present when a person unknown to him fired three or
four shots sideways into the ground. However, he was able to describe
to the police the features of the person concerned. He, A.Sö., had
been sitting with this person at the same table in the restaurant
during the evening. A.Sö. also explained that it was customary in
certain parts of Turkey to fire shots after a festive occasion.
Also on 4 December 1984, S.E. and A.Si. told the police that
they had not been able to see who had fired the shots. Both had then
got into a car and driven off together with the applicant.
The applicant explained on 4 December 1984 to the police that
he had not heard any shots while being in the restaurant, and that
after leaving the locality he had driven away in a car.
On 12 December 1984 A.Sö. made a further statement before the
Rankweil police. He stated that at the Rankweil police station he had
been confronted with a man, apparently the applicant. He recognised
this man without doubt as being the person who had fired the shots at
1 am on 21 October 1984 and with whom he had previously been sitting
at the table in the restaurant.
On 12 December 1984 the Vorarlberg Police Direction filed with
the Bregenz District Court (Bezirksgericht) a criminal report (Straf-
anzeige) according to which the applicant was urgently suspected of
having fired four shots among a group of people, without a licence and
without any particular purpose. The Report reiterated various
statements made before the police. It noted that A.Sö. had identified
with certainty the applicant as the person who had fired the shots.
The Report also stated that S.E. and A.Si. were urgently suspected of
having given false testimony before the police in order to protect the
applicant.
S.E. and A.Si. were later acquitted of these charges. However,
on 11 March 1985 the Bregenz District Court issued a Criminal Order
(Strafverfügung) in which it convicted the applicant of the offence of
having unlawfully possessed and carried a handgun (Faustfeuerwaffe),
and sentenced him to 30 daily rates of 150.-AS or, alternatively, to
15 days' imprisonment.
II
The applicant filed an objection (Einspruch) against the
Criminal Order of 11 March 1985, thus initiating oral proceedings.
His trial opened before the Bregenz District Court on
23 April 1985. The applicant who was assisted by an interpreter was
heard first. He stated that when the events had happened on
21 October 1984 he had been so strongly under the influence of alcohol
that he would not have been able to hold a handgun in his hand.
S.E. and A.Si. were then heard as witnesses. They stated that
they were unaware of who had fired the shots. N.I. stated that he was
seeing the applicant for the first time at the hearing.
The proceedings were then adjourned, inter alia, in order to
obtain the address of A.Sö.
At a further hearing on 22 July 1985, K.I. stated that as he
had been in the restaurant he was unaware of the person who had fired
the shots. A.Sö. was then heard as a witness. He stated that he was
able to understand colloquial German, but not special expressions such
as "doubtless" ("zweifelsfrei"). In his testimony he altered his
previous statements before the police to the extent that he was now no
longer sure whether or not the applicant had been the person firing
the shots, as he had only seen the person concerned from the back.
Moreover, he had not been sitting with the applicant at the same
table. As to the confrontation with the applicant, A.Sö. stated that
on that occasion he had been sitting in a police car. A man, possibly
the applicant, was sitting in a van, about 30 metres away. This man
was requested to get out of the van, walk to the police station, and
back again to the van. In A.Sö.'s recollection this man looked
similar to the man who had fired the shot.
The proceedings were then adjourned, inter alia, to hear the
police officers who had originally questioned the various witnesses.
A further hearing took place on 22 October 1985. A.Sö.
was heard again. He declared that his statement before the police
was incomplete as no interpreter had then been present. The two
police officers were then heard. One officer, who was also
questioned by the applicant's lawyer, stated that he had not had any
language difficulties when questioning A.Sö., either on 4 or on
12 December 1984 and an interpreter had therefore been regarded as
unnecessary. The other officer also stated that there had been no
difficulties in communicating with A.Sö. Later, when sitting in the
police car, A.Sö. had definitely identified the applicant as the
person concerned. He, the police officer, had specially instructed
A.Sö. to look closely at the person, whereupon A.Sö. had repeated his
statement.
On 22 October 1985 the Bregenz District Court convicted the
applicant of having unlawfully possessed and carried a handgun and
sentenced him to 30 daily rates at 120.-AS or, alternatively, to 15
days' imprisonment.
The Court considered that A.Sö. had been manager of the
A.-restaurant from 1982-1984, and that his grasp of the German
language was correspondingly good. The statements of the two police
officers also clearly disproved A.Sö.'s testimony before the Court
concerning his knowledge of German. The Court found that the testimony
of N.I. and in particular A.Sö. made it clear that the applicant, who
at that time had probably been slightly under the influence of
alcohol, had fired the shots. A.Sö. had in fact on two occasions, on
4 and 12 December 1984, incriminated the applicant, on 4 December by
stating that the latter had been sitting with him at the same table
and on 12 December by identifying him. Later, at the hearings of
22 July 1985 and 22 October 1985, A.Sö. had modified his statement by
explaining that on the evening in question he had not sat at the same
table as the applicant and had only from the back seen the man firing
the shots.
III
The applicant filed a plea of nullity (Nichtigkeitsbeschwerde)
and an appeal (Berufung). Thereby he relied on S. 281 para. 4 of the
Austrian Code of Criminal Procedure (Strafprozessordnung). According
to this provision, a plea of nullity may be filed, if during the
trial, and contrary to the application of the person concerned, an
interim decision (Zwischenerkenntnis) is handed down which disregards
or interprets incorrectly, inter alia, a law, the observance of which
would be required in a procedure securing the rights of the defence.
The applicant submitted in his plea of nullity that the
District Court had disregarded such a law, namely Article 6 of the
Convention, inasmuch as A.Sö. had been questioned by the police
without an interpreter being present. The applicant submitted further
that no witness at the trial had incriminated him. The Court had had
to rely for its decision on the police minutes of A.Sö.'s statement.
Yet, when A.Sö. had been questioned, before the police, the applicant
had not been able to put questions. In his appeal, the applicant
requested a conditional sentence.
After a further hearing, the Feldkirch Regional Court
(Landesgericht) on 9 April 1986 suspended the applicant's sentence on
probation. The remainder of his appeal and his plea of nullity were
dismissed.
The Regional Court found that a plea of nullity according to
S. 281 para. 1 (4) required an application of the person concerned as
well as an interim decision of the Court during the trial. In the
present case such an interim decision had not been given. The Court
therefore decided to examine the applicant's plea of nullity under
S. 281 para. 1 (3) of the Code of Criminal Procedure, which provision
permits such a remedy if during the trial a legal provision has been
disregarded, the compliance with which the law orders under a threat
of nullity. The Court found that Article 6 of the Convention did not
extend para. 1 (3) of S. 281. The Regional Court finally considered that
the District Court had been obliged, under S. 252 para. 2 of the Code
of Criminal Procedure, to read out the police minutes and that its
assessment of the evidence could not be reproached.
COMPLAINTS
The applicant now complains under Article 6 of the Convention
that before the Austrian Courts concerned not one element of proof was
adduced which would have incriminated him in a concrete manner. Not
one witness identified before the Courts the applicant as the person
who had fired the shots. The applicant thus claims that the
proceedings were not fair in that the District Court had to rely for
its judgment on police minutes recording a statement of A.Sö. before
the police which he later retracted. Yet A.Sö. had been questioned by
the police without an interpreter being present. It was possible
therefore that the minutes were wrong. Before the District Court,
when an interpreter was present, A.Sö. no longer identified the
applicant as the person concerned. This testimony should therefore be
regarded as the more credible one. It was arbitrary (unsachlich) that
the District Court regarded A.Sö.'s statement before the Court as
wrong and yet did not prosecute him. On the other hand, the two
police officers heard before the District Court were merely giving
hear-say evidence.
The applicant sees a further breach of Article 6 of the
Convention in that the Court of Appeal decided to examine under S. 282
para. 1 (3) of the Code of Criminal Procedure his plea of nullity
complaints rather than under (4) of that provision, and that the
Court did not find Article 6 of the Convention relevant for his plea
of nullity.
THE LAW
The applicant complains that he was convicted by the District
Court although not one witness identified him before that Court as the
person who had fired the shots. He also complains that he did not
have a fair trial within the meaning of Article 6 (Art. 6) of the Convention.
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 of 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. 485/59, 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 follows that in the
present case the Commission cannot examine for instance whether or not
the testimony of the witnesses was credible.
It is true that the applicant also complains under Article 6
(Art. 6) of the Convention that the District Court had to rely for its
judgment on police minutes recording a statement of A.Sö. Yet when
the latter had made his statement before the police an interpreter had
not been present. The applicant also complains that the Regional
Court decided to examine his plea of nullity complaint under S. 282
para. 1 (3) instead of (4) of the Code of Criminal Procedure and that
the Court found Article 6 (Art. 6) of the Convention irrelevant.
As regards the court proceedings in general, the Commission
sees no indication that the applicant who was represented by a lawyer
could not present his case properly before the District Court or the
Regional Court, or that the proceedings were improperly conducted by
these Courts. Thus, at the trial the applicant was heard by the
District Court together with a number of witnesses. Throughout the
trial an interpreter was present. When reaching its judgment the
District Court considered both the incriminating and exculpatory
testimony of various witnesses. The Court thereby regarded the
incriminating evidence concerning the applicant as sufficiently
credible and it based its conviction thereupon, whereby it considered
that the grasp of the witness concerned of the German language was
good.
The applicant has also complained of the recourse by the
District Court to the police minutes when reaching its judgment. The
Commission has examined this complaint under Article 6 paras. 1 and
3 (d) (Art. 6-1, 6-3-d) of the Convention. It recalls that the
reading out of statements at the trial, to which the judgment later
has recourse, cannot in itself be regarded as being inconsistent with
these provisions. Nevertheless, the use made of these statements must
comply with the rights of the defence. A person charged with a
criminal offence must have the opportunity to examine or have examined
witnesses against him, particularly if he has not had the opportunity
at an earlier stage in the proceedings to question the persons whose
statements are read out at the trial and later are relied upon in the
judgment of the Court concerned (see Eur. Court H.R., Unterpertinger
judgment of 24 November 1986, Series A No. 110, p. 14f., para. 31).
In the present case the Commission notes that the District
Court relied in its judgment of 22 October 1985 on the statements made
by N.I. and A.Sö. before the police. Upon the applicant's plea of
nullity, the Regional Court held that the District Court had been
obliged under S. 252 of the Code of Criminal Procedure to read out the
police minutes at the trial.
In this respect, however, the applicant has not alleged before
the Commission that he could not inform himself of the contents of the
police minutes before the trial. Moreover, the Commission observes
that in particular the witnesses N.I. and A.Sö. appeared at the trial
and that the applicant had the opportunity to question them. It
follows that the recourse by the District Court to the police minutes
cannot be regarded as being inconsistent with Article 6 para. 1 or 3
(d) (Art. 6-1, 6-3-d) of the Convention.
Insofar as the applicant complains that the Regional Court
decided to examine his plea of nullity under S. 282 para. 1 (3)
instead of (4) of the Code of Criminal Procedure, and that the Court
did not consider Article 6 (Art. 6) of the Convention as relevant in this
context, the Commission recalls that Article 6 para. 1 (Art. 6-1) does
not prevent the High Contracting Parties from regulating the manner in
which the public shall have access to courts in order to ensure the
proper administration of justice (see No. 6916/75, Dec. 8.10.76, D.R.
6 p. 107). In the present case the Commission notes that the Regional
Court decided that the conditions under S. 281 para. 1 (4) were not
met and then proceeded to examine the applicant's plea of nullity
under para. 1 (3). Nevertheless, the Commission observes that in fact
the Regional Court examined in substance the applicant's complaints
concerning in particular the recourse by the District Court to the
police minutes. Thereby the Regional Court concluded that the
District Court had been obliged to read out the police minutes and
that its assessment of the evidence could not be reproached.
As a result, the above complaints do not disclose any
appearance of a violation of the rights set out in Article 6 (Art. 6)
of the Convention. The Commission concludes 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
&_DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C. A. NØRGAARD)