AS TO THE ADMISSIBILITY OF
Application No. 12124/86
by N.I.
against Austria
The European Commission of Human Rights sitting in private
on 15 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER 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 24 April 1986
by N.I. against Austria and registered on 28 April 1986 under
file N° 12124/86;
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 1945, is a restaurant
manager resident in F. in Austria. Before the Commission he is
represented by Dr. Weh, a lawyer practising in Bregenz.
I.
The applicant and a certain Mr. A.I., a Turkish citizen, were
both managers of the A. Restaurant in Bregenz. The applicant thought
he had been deceived by A.I. as the latter did not comply with the
agreement that they would profit in equal parts from their business.
According to the later judgment of the Feldkirch Regional Court
(Landesgericht) of 1 July 1985, the following events occurred on
3 and 4 March 1985:
On 3 March 1985 the applicant went to the restaurant at 9 pm.
After midnight, i.e. on 4 March 1985, he accused K.I., the son of
A.I., of having charged a guest too much. Thereupon K.I. hit the
applicant in the face. The applicant then approached A.I. The
applicant took a bottle, broke it, and directed the bottle neck
towards A.I.'s face. When a certain Mr. V.K. managed to take the
bottle neck away, the applicant fetched a kitchen axe and threatened
to kill A.I. and K.I. Again V.K. took it away. The applicant fetched
a kitchen knife which V.K. also took away. During these events the
applicant uttered various threats, inter alia that he would kill
A.I.'s family.
The applicant was eventually brought out of the restaurant
and taken home to his residence in F. by his brother who had also
been present in the restaurant. After a short time the applicant left
his residence on foot. At 2.30 am on 4 March 1985 he was stopped by
police who found on him a pistol and a flick-knife. He was apparently
remanded in custody and later questioned by the police and the
investigating judge.
II.
Criminal proceedings were instituted against the applicant.
At the trial (Hauptverhandlung) the Feldkirch Regional Court heard the
applicant on 1 July 1985 together with nine witnesses, among them
A.L., his son K.I., the applicant's brother and V.K. An interpreter
was present. The witnesses were also questioned by the applicant.
According to the minutes of the trial, the applicant denied
having threatened A.I. and K.I. in the restaurant. The witnesses A.I.
and K.I. both stated that the applicant had broken a bottle and
intended to hit A.I.'s face with it; later the applicant had
threatened A.I. with a kitchen axe and a knife. However, K.I. denied
having hit the applicant in the face. The witness V.K. stated that
the applicant had broken a bottle and directed it towards A.I. Later
the applicant had also threatened A.I. with a kitchen axe and a knife.
The minutes of the trial state that, after the witnesses had
been heard, "the documents, of which the reading out has been requested,
are still produced and read out" ("Dargetan und verlesen werden noch
die zur Verlesung beantragten Aktenstücke").
According to Section 252 para. 3 of the Austrian Code of
Criminal Procedure (Strafprozessordnung), every time minutes are read
out at the trial, which concern the interrogation of witnesses or
co-accused, the defendant must be asked whether he wishes to comment
thereupon.
III.
On 1 July 1985 the Regional Court convicted the applicant
according to Section 107 of the Austrian Criminal Code
(Strafgesetzbuch) of committing a dangerous threat (gefährliche
Drohung). The Court held in particular that the applicant had on 4
March 1985 in Bregenz threatened, inter alia, that he would kill A.I.
and K.I., and that he had directed a bottle neck and tried to throw a
kitchen axe and thrust a kitchen knife towards A.I. The applicant,
who was also convicted of unauthorised possession of arms, was
conditionally sentenced to a fine of 48'000.-AS.
In respect of the offence of a dangerous threat the Court held
in its judgment that the various facts of the case were clear on the
basis of the police investigations and the witnesses' testimony though
the applicant's statements were in many respects incredible. Thus,
that night he had been mad with rage (rasend vor Wut). While before
the police he admitted taking a bottle, breaking it on the floor and
using it as a weapon, before the investigating judge and the Court he
stated that he had broken it but denied directing it towards A.I. The
Court found that this last statement was clearly contradicted by A.I.
and K.I. and especially V.K. Before the police even the applicant's
brother stated that the applicant had intended to defend himself
towards K.I., though this testimony had no value since he was a close
relative of the applicant.
The Court saw no contradictions in the main points in the
testimony of A.I., K.I. and V.K., though K.I.'s testimony had been
convincingly contradicted in another respect by other witnesses,
namely that he had hit the applicant twice. On the whole, the Court
placed particular importance on the testimony of V.K. who had acted as
a mediator in the conflict. His testimony was corroborated before the
police by a certain Mr. S.Y., who also confirmed that the threats had been
uttered by the applicant.
Insofar as the applicant had adduced exculpatory witnesses, the
Court noted that they had all evidently looked away during the critical
moments. For instance, one of these witnesses said that he had not
seen the applicant breaking a bottle, a fact which the applicant himself
had admitted. The Court also discussed in detail the evidence of
other exculpatory witnesses.
In respect of the occurrences after the applicant had been
brought home, the Court found that the applicant was obviously
protecting himself when he explained that he had intended to walk to
his brother in another village in order to hide his wounded face from
his family. In view of the previously uttered threats towards A.I.'s
family it was very likely that the applicant was on his way to carry
them out.
The applicant filed an appeal (Berufung) in which he
complained inter alia that the Regional Court should not have
considered the minutes of the police (Gendarmerieprotokolle) as they
had not been read out at the trial; in any event it would be
inadmissible to read them out in court.
On 24 August 1985 the Innsbruck Court of Appeal (Oberlandes-
gericht) dismissed the appeal insofar as it concerned nullity and
conviction but upheld it insofar as it concerned punishment. In
particular, the Court reduced the applicant's conditional punishment
to the amount of 30'000.-AS.
The Court of Appeal dismissed in particular the applicant's
complaint concerning the police minutes since according to the trial
minutes of the hearing of 1 July 1985 the police minutes had in fact
been read out before the Regional Court. The latter had therefore
been able to take into account the investigations and minutes of the
police when reaching its judgment. Moreover, Section 252 para. 2 of
the Code of Criminal Procedure (Strafprozessordnung) required that the
police notification (Gendarmerieanzeige) was read out in Court.
The Court of Appeal also found that the applicant's
submissions were incorrect insofar as the lower Court had allegedly
not determined the subjective aspects of the act at issue. In fact,
the Regional Court had in its judgment clearly considered this aspect,
in particular the intention of the applicant. Whether or not other
persons had actually been frightened was irrelevant. Finally, the
Court of Appeal saw no objection to the manner in which the previous
Court had considered the evidence.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
the Regional Court regarded the evidence of K.I. which incriminated the
applicant as credible even though K.I. had clearly committed false
testimony when he stated that he had not hit the applicant. Moreover,
the threat which the applicant committed did not suffice to place the
other persons "during a longer period of time into an agonising state"
as required by Section 107 para. 2 of the Criminal Code. In general
the witnesses' testimony was too contradictory to enable the assessment
of the truth.
Also under Article 6 the applicant complains that the Regional
Court had recourse to the police minutes when reaching its judgment,
in particular whenever the applicant later made different statements,
thus removing the proceedings from the public sphere of court
proceedings to the non-public sphere of the executive.
Under Article 6 para. 3(e) of the Convention the applicant
complains that the Court had resort to police minutes although before
the police he had not had the assistance of an interpreter. Under
Articles 3 and 6 para. 1 of the Convention he complains that the Court
considered police minutes which were taken down while he was not yet
sober and without his having been able to contact his family or other
persons.
The applicant complains that for these various reasons the
police minutes should not have been read out at the trial. He also
submits that, contrary to the trial minutes, the police minutes were
in fact not read out at the trial.
THE LAW
1. The applicant complains that the Regional Court wrongly
regarded the testimony of K.I. as credible, and that not all the
conditions for a conviction under Section 107 para. 2 of the Criminal
Code had been met. He also complains that he did not have a fair
trial within the meaning of Article 6 (Art. 6) of the Convention.
Nevertheless, 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 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
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 the
Commission cannot examine for instance whether or not the testimony
of the witnesses was credible or whether or not all the conditions for
a conviction under Section 107 para. 2 of the Criminal Code were met
in the applicant's case.
It is true that the applicant has also complained under
Article 6 (Art. 6) of the Convention that the witnesses' testimony was too
contradictory to enable the assessment of the truth and that the
Regional Court had recourse to the police minutes when reaching its
judgment, in particular whenever the applicant changed his statements.
The applicant also complains that the Court had recourse to minutes
which were prepared when he was not sober and without his having the
assistance of an interpreter or being able to contact his family. The
applicant complains that for various reasons the police minutes should
not have been read out at the trial. He also submits that, contrary
to the trial minutes, the police minutes were in fact not read out at
the trial.
However, the Commission sees no indication that the applicant
who was represented by a lawyer could not present his case properly
before the Regional Court or the Court of Appeal or that the
proceedings were improperly conducted by these courts. Thus, at the
trial the applicant was heard by the Regional Court together with nine
witnesses. Throughout the trial he was assisted by an interpreter.
When reaching its judgment the Regional Court considered in detail the
various statements made by the applicant as well as both the
incriminating and exculpatory testimony of the witnesses. The Court
thereby regarded the available evidence concerning the applicant as
sufficient and based its conviction on the corresponding testimony of
the witnesses A.I., K.I. and in particular V.K. and the confirmation
thereof by further witnesses.
The applicant has also complained of the recourse by the
Regional Court to the police minutes when reaching its judgment. The
Commission has examined these complaints 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 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
(see Eur. Court H.R., Unter- pertinger judgment of 24 November 1986, Series A
No. 110, para. 31).
In the present case the Commission notes that according to
the minutes of the trial of 1 July 1985 before the Regional Court the
documents of which the reading out had been requested were indeed read
out. Upon appeal, the Court of Appeal confirmed both that the police
minutes had been read out and that this reading out complied with
Austrian law.
Moreover, the applicant has not alleged before the Commission
that he could not inform himself of the contents of the police minutes
before the trial. The Commission also observes that the Regional
Court founded its judgment substantially on the testimony of A.I.,
K.I. and V.K. These witnesses appeared at the trial and the applicant
had the opportunity to question them and did in fact do so. Finally,
the Commission considers that, according to Section 252 para. 3 of the
Code of Criminal Procedure, after every reading out of minutes such as
the police minutes, the defendant must be asked whether he wishes to
make comments thereupon. The applicant therefore had an opportunity
to confront the witnesses with the police minutes.
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 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 also complains under Article 3 (Art. 3) of the Convention
that the Court considered police minutes which were taken down while
he was not yet sober and without his having been able to contact his
family or other persons.
However, the Commission finds no issue under this provision.
It follows that the application is in this respect also 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
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)