THE FACTS
The facts of the case as submitted by the applicants may be summarised
as follows:
The applicants are German citizens and at present are detained in D.
prison on remand. In the proceedings before the Commission, the first
applicant, born in 1908, is represented by Mr. A., a lawyer practising
in Munich, the second applicant, born in 1911, is represented by Mr.
P., a lawyer practising in Darmstadt, and the third applicant, born in
1911, by Mr. F., a lawyer practising in Frankfurt. All three applicants
are charged with having committed murder on several accounts during the
second world war in Poland, when they carried out their functions as
GESTAPO agents. The applicants, who are awaiting trial at the Darmstadt
Regional Court, are complaining before the Commission that important
witnesses were heard on commission by Austrian courts without the
applicants' counsel being allowed to be present.
1. It appears that in 1970 the Presiding Judge of the Darmstadt
Regional Court requested by letters rogatory the District Court of
Klagenfurt, on the basis of Article 8 of the Austro-German Treaty on
Mutual Assistance in Criminal Matters, to hear on commission a witness
residing in Klagenfurt whose evidence was considered to be relevant to
the criminal proceedings opened against the applicants. It appears that
the Presiding Judge also requested permission to assist, together with
three other judges at the hearing of this witness and he also informed
the District Court that the applicants' counsel had requested to be
present at this interrogation. In accordance with the usual practice,
copies of this request were sent by the Hessian Minister of Justice to
the Austrian Federal Minister of Justice. The latter gave the request
to the District Court with the comment that he had no objection to the
above judges assisting but that the presence of counsel for the
applicants must be excluded in view of the cogent provisions of the
Austrian Code of Criminal Procedure.
On .. January 1971 the Klagenfurt District Court fixed the hearing of
the above witness for .. February 1971. The applicants appealed against
this decision and requested the Klagenfurt Regional Court to allow the
presence of applicants' counsel at the hearing. The Regional Court,
however, decided on .. February 1971 that the applicants' appeal was
inadmissible for several reasons. The Court held first that the appeal
had not been signed by a member of the Austrian Bar and that it was
therefore inadmissible. As to the merits of the appeal, the Court held
that appeals can be lodged against decisions only but not against mere
information of the existing law. In the present case, the District
Court had only informed the Presiding Judge of the Darmstadt Court that
counsel were not admitted, but no decision had thereby been taken. The
Regional Court added that the only decision taken by the District Court
was to hear the above witness on the date indicated, and that according
to the well established case-law no appeal could be laid against such
decision. The applicants had apparently also complained that a hearing
of a witness in the absence of applicants' counsel would violate
Article 6 (3) (d) of the Convention, but the Regional Court said in
this respect that it was bound to apply the existing legislation, even
if it were at variance with the Convention, since under the Austrian
Constitution the courts are bound also by unconstitutional laws, as
long as they were not quashed by the Constitutional Court. The Court
concluded that, therefore, Article 162 of the Code of Penal Procedure
which provides that witnesses are heard by the Investigating Judge in
the absence of the Public Prosecutor and the accused as well as of
other persons involved was binding for it.
2. On .. May 1971 the Public Prosecutor of the Darmstadt Regional
Court again requested the hearing of another witness in Austria. This
witness was serving a sentence in prison in Krems, and the request was
therefore directed - in the above way - to the Krems Regional Court.
In his request, the Public Prosecutor again requested the Austrian
Court to allow the presence of several judges, the German Public
Prosecutor and applicants' counsel. On .. May 1971 counsel for the
applicants submitted to the above Court a memorandum setting out in
detail why they requested to be present when the above witness was
heard by the Austrian Court.
On .. June 1971 the Regional Court of Krems informed the Darmstadt
Public Prosecutor that the hearing of the above witness was fixed for
.. June 1971 at 8.00 hours, and that he had reported to the Federal
Ministry the question of the presence of German judges, the Public
Prosecutor, and of counsel for the applicants. As soon as the Ministry
had decided this question, the Court would inform the German
authorities of the decision reached.
On .. June 1971 the Federal Minister of Justice informed the Hessian
Minister of Justice that there were no objections to the participation
of the German judges in the hearing of the above witness, but that the
presence of counsel for the applicants could not be allowed in view of
the cogent provisions of Austrian procedural law. The Krems Regional
Court sent a copy of the above information to the Public Prosecutor of
Darmstadt on .. June 1971 and requested him to inform counsel for the
applicants accordingly.
Complaints
The applicants now complain that the facts reported above under 2. show
a violation of their rights under Article 6 (3) (d) of the Convention,
since they had no right to put questions to the witness heard in
Austria in the absence of counsel.
Submissions of the parties
The Austrian Government, while reserving their rights under Article 26
of the Convention, submit that this application is manifestly
ill-founded for the following reasons: Article 6 (3) (d) of the
Convention is, in their submission, not applicable since the applicants
were not charged before an Austrian court, nor was a criminal charge
determined against them by that hearing of a witness on commission.
According to the Government a possible violation of Article 6 (3) (d)
of the Convention could exclusively be imputed to that criminal court
which finally determined such charge. The Government also submit that,
in any event, no such violation of this Article could be found since
the equality between prosecution authorities and defence had been
safeguarded in these proceedings, as the Public Prosecutor was also not
invited to assist at this interrogation of a witness. The Government
further submit that the above Article of the Convention did not
enshrine a guarantee to examine witnesses directly, but it only
provided that the defendant had the right to "have examined witnesses".
In this respect it is stated that the applicants did not fully use this
right since they did not request the inclusion of their specific
questions into the letters rogatory; it is stated, however, that after
consulting the protocol of the interrogation of the witness, they
requested that this witness should again be heard on questions they
wished to ask him, and the witness accordingly was again interrogated.
As regards the domestic legal situation the Government submit that
according to the Austrian-German Agreement in the execution of letters
rogatory the law of the requested state has to be applied, i.e.
Austrian law in the present case.
According to the terms of Article 162 of the Austrian Code of Criminal
Procedure witnesses have to be heard by the Investigating Judge in the
absence of the prosecutor, the private party, the defendant, and other
witnesses. The Government state that this provision could not be at
variance with Article 6 (3) (d) of the Convention, since Article 4 of
the European Convention on Mutual Assistance in Criminal Matters left
expressly to the requested State parties to be present at the execution
of letters rogatory but, even if the letter were allowed, they were not
entitled to put questions. In this respect it is said that it was
hardly likely that a provision incompatible with the Convention would
have been included in a Convention which was agreed by States who were
also signatories to the European Convention on Human Rights.
The applicants submit that the Austrian Government have prevented them
from having cross-examined the said witness, who was a prosecution
witness, and in this respect it was unimportant whether Article 6 (3)
(d) of the Convention as such was applicable in such hearings on
commission or whether the applicants were in the same position as was
the Public Prosecutor, who was equally not allowed to attend the
interrogation. In this respect they submit that they did not suggest
to put these questions personally, or by their counsel, but by the
judge. They further state that it would have been impossible to
formulate in advance questions of the defence to be included in the
letters rogatory, since this is exclusively feasible if the witness
heard was a defence witness, unlike the present one. Questions to a
prosecution witness usually emerge, according to the applicants, at the
moment when he is heard. The applicants further submitted that it would
have not been possible to ask this witness questions after having
studied the record of the hearing, since in order to achieve such
additional hearing the defence has to indicate facts on which the
witness could give information. With regard to the second hearing of
this witness it is stated that then he was heard as a defence witness.
The applicants indicate that all the other member States of the
European Court allow the presence of counsel in hearings on commission.
As regards the explanations of the Government relating to the domestic
legal situation the applicants submit that Article 162 mentioned by the
Government was exclusively to be applied during the preliminary
investigation, as long as the Investigating Judge was dealing with a
case. They also mention that no explicit rule of the Austrian Code
provided the absence of the parties during an interrogation of a
witness in execution of letters rogatory, and that therefore, Article
162 was only applied by analogy. There was, however, according to them,
no basis for the analogy drawn up by the Austrian authorities which
applied this Article, since the applicants' case was at the trial stage
and not at the investigation stage.
THE LAW
The applicants have complained to the Commission that the Austrian
Government have refused to allow their counsel to participate in the
hearing on commission by a judge of the Krems Regional Court of a
witness against them. They allege that, thereby, they were prevented
from putting questions to this witness through counsel and that,
consequently, their rights under Article 6 (3) (d) (Art. 6-3-d) of the
Convention were violated.
The Commission, in this respect, has first examined the question
whether the applicants' complaint raises an issue in connection with
the right to a fair trial within the meaning of Article 6 (1)
(Art. 6-1) of the Convention. This provides that "in the determination
of ... any criminal charge against him, everyone is entitled to a fair
and public hearing ...". However, having had regard to the particular
features of the proceedings in question, the Commission finds that this
hearing on commission of the witness against the applicants did not
form part of the criminal proceedings whereby the charges against the
applicants were determined. This provision of Article 6 (1) (Art. 6-1)
of the Convention is, consequently, not applicable to the above hearing
and is irrelevant to the applicant's complaint.
For this reason the applicants' complaint, as regards any such question
of a fair hearing, is incompatible ratione materiae with the provisions
of the Convention within the meaning of Article 27 (2) (Art. 27-2), of
the Convention.
The Commission has then had regard to the terms of Article 6 (3) (d)
(Art. 6-3-d) of the Convention which provides that "everyone charged
with a criminal offence has the following minimum rights ...(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;". In this respect it notes the
respondent Government's objection that this provision is not applicable
in the circumstances of the present case since the applicants were not
charged before an Austrian court. The Commission has accordingly first
examined the question whether it has competence ratione personae to
deal with the applicants' complaint which was brought against the
Austrian Government. In this respect it finds that the Austrian
authorities were fully responsible for the form and conduct of this
hearing on commission including the question of who should participate
at the hearing. Indeed, this hearing was exclusively governed by the
rules of the Austrian Code of Criminal Procedure and their
interpretation by the Austrian authorities. The Commission therefore
decided that it cannot reject the applicant's complaint as being
incompatible ratione personae with the Convention.
The Commission has already found that the provisions of Article 6 (1)
(Art. 6-1) of the Convention did not apply to the present applicants,
since their complaints were not related to that stage of the criminal
proceedings whereby the charges against them were determined. This
finding, however, does not affect the applicability of Article 6 (3)
(d) (Art. 6-3-d) of the Convention to these complaints since its
provisions expressly apply to "everyone charged with a criminal
offense" and, consequently, to the present applicants who were charged
with a criminal offense, albeit before the German courts. Their
complaints cannot therefore be rejected on the ground that they fall
outside the scope of Article 6 (3) (d) (Art. 6-3-d) of the Convention.
The Commission consequently finds that the Austrian authorities were
in the present case bound to observe the said provisions of Article 6
(3) (d) (Art. 6-3-d) of the Convention.
The Commission, having established that Article 6 (3) (d) (Art. 6-3-d)
is applicable to the applicant's complaint against Austria, has then
examined the question whether or not this provision was in fact
respected by the Krems Regional Court. Having had regard to the course
of the proceedings and, in particular, to the circumstance that the
witness against the applicants was, on their request, re-heard on
commission after the applicants had studied the record of his first
examination, the Commission finds that the applicants' complaint under
Article 6 (3) (d) (Art. 6-3-d) of the Convention is manifestly
ill-founded under Article 27 (2) (Art. 27-2), of the Convention since
their right "to examine or have examined witnesses" has been respected
by the Austrian authorities.
For these reasons the Commission DECLARES THIS APPLICATION INADMISSIBLE