Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 19125/91

Konrad Bechter

against

Austria

REPORT OF THE COMMISSION

(adopted on 18 October 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-28) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-27). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(para. 28). . . . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 29-35) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 29). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 30). . . . . . . . . . . . . . . . . . . . .6

C. As regards Article 6 para. 1 of the Convention

(paras. 31-34). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 35). . . . . . . . . . . . . . . . . . . . .7

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . .8

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, a police officer, is an Austrian citizen, born in

1941 and resident in Krumbach. He was represented before the

Commission by Mr. Ludwig Weh, a lawyer practising in Bregenz.

3. The application is directed against Austria. The respondent

Government were represented by Mr. F. Cede, Deputy Secretary General

and Legal Counsel of the Austrian Federal Ministry of Foreign Affairs.

4. The case concerns the complaint that in criminal proceedings

against him the applicant was not communicated, for his comments, the

observations ("croquis") which the Senior Public Prosecutor had

submitted in respect of the applicant's appeal against his conviction

and sentence. The applicant invokes Article 6 para. 1 and 3 (d) of the

Convention.

B. The proceedings

5. The application was introduced on 19 November 1991 and registered

on 22 November 1991.

6. On 13 October 1993 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on the admissibility and

merits of the applicant's complaints relating to the appeal proceedings

and the submission of the "croquis".

7. The Government's observations were submitted on 14 January 1994.

The applicant replied on 9 March 1994.

8. On 5 April 1995 the Commission declared admissible the

applicant's complaint under Article 6 para. 1 of the Convention

relating to the use of the "croquis" in the appeal proceedings. It

declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 16 May 1995 and they were invited to submit such

further information or observations on the merits as they wished. No

further submissions were however received from the parties.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

12. The text of this Report was adopted on 18 October 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 29 January 1991 the applicant was convicted by the Feldkirch

Regional Court (Landesgericht) of defamation (Verleumdung). He was

sentenced to a fine of 360 day-rates in the amount of AS 200 each.

17. The court considered it to be established:

- that the applicant had told a colleague, police officer A.M.,

that police officer H.S. had, upon the occasion of local

festivities, allowed his brother P., who was under the influence

of alcohol, to enter his car and drive away.

The court found the above statement to be untrue and made with

the intent to wrongly incriminate H.S. with whom the applicant had had,

for many years, an acrimonious relationship.

18. The court further found that when heard in the above matter as

an accused suspected of having committed defamation:

- the applicant had told the investigating judge on

25 September 1990 that the alleged defamatory remark had been

made in good faith as one K.B. who had allegedly witnessed the

incident in question had informed him about it.

This statement made before the investigating judge was, according

to the court's findings likewise untrue and defamatory as it

incriminated K.B. of having wrongly denounced H.S. for having neglected

his duties as a police officer.

The findings of the court were based on evidence given against

the applicant by witnesses H.S., A.M., K.B., H.L. and A.S.

19. K.B. denied as a witness having incriminated H.S. vis-à-vis the

applicant. He only admitted that he had met the applicant and his

daughter at the local festivities in question and had conversed with

them for a while. In the course of the conversation he had mentioned

having passed in his own car that of P. who seemed to be drunk as his

face was all red. K.B. denied however having spoken of H.S., P.'s

brother, whom he had not seen at all.

20. H.L., a senior police officer, stated that when he questioned the

applicant about his remarks incriminating H.S. the applicant had

replied that he knew from hearsay only that H.S. had not interfered

when his brother decided to drive although he was drunk. The applicant

had however not been able to name a person who had given him the

information about H.S.

21. The applicant's daughter, A.S., gave evidence for her father

stating that K.B. had told her father in her presence that H.S. had not

interfered when his drunken brother P. drove away in his car. The

court considered however that this evidence was unreliable and

contradicted by the evidence given by K.B. who was considered to be

credible.

22. The applicant's wife stated as witness that K.B. had confirmed

in her and her daughter's presence on the occasion of a visit to their

house that he had given the applicant the information about H.S. and

his brother P. The trial court considered however that the applicant

had intentionally invited K.B. in order to fabricate evidence in his

favour. Neither the applicant's wife nor his daughter were considered

to be credible.

23. The defence requested an expert opinion on the question whether

it had been possible for K.B. to recognise P. in the circumstances

described by him as a witness and to see that his face was red. The

trial court rejected this request stating in an order given in the

course of the trial that it had itself enough experience to decide this

issue without the assistance of an expert.

24. The applicant lodged an appeal complaining of his conviction and

the sentence. He argued, inter alia, that his rights had been violated

in that his request to obtain an expert opinion had been rejected. He

also argued that there was not sufficient evidence to prove his guilt.

25. The Senior Public Prosecutor (Oberstaatsanwaltschaft) submitted

the following observations (croquis):

[Translation]

"The dismissal of the request to obtain a photometric expert

opinion did not violate the rights of the defence. Reasons for

the dismissal were given at the trial and did not need to be

repeated in the judgment. The request related to irrelevant

circumstances. The appeal on points of law must therefore fail.

The trial court's assessment of the evidence is extensive and

convincing. The reasons stated in the appeal do not give cause

to doubt the findings of the trial court.

The sentence likewise does not call for any correction."

[German]

"Durch die Abweisung des Beweisantrages auf Einholung eines

lichttechnischen Sachbefundes, die im Urteil nicht noch einmal

eigens begründet werden mußte, nachdem die Gründe dafür in der

Hauptverhandlung verkündet wurden, wurden Verteidigungsrechte des

Angeklagten nicht verletzt. Mit diesem Beweisantrag sollten

nämlich nicht entscheidungswesentliche Umstände bewiesen werden.

Es versagt daher die Nichtigkeitsberufung.

Die Beweiswürdigung des Erstgerichtes ist ausführlich und

überzeugend. Die Schuldberufung vermag keine Zweifel dagegen zu

erwecken.

Auch die Strafe gibt zu keiner Korrektur Anlaß."

26. These observations were not communicated to the defence. It is

stated in the minutes concerning the appeal hearing on 15 May 1991 that

a judge rapporteur summarised the case and issues and that subsequently

the pleadings of the Public Prosecutor and the defence were delivered.

27. On 15 May 1991 the appeal was rejected by the Innsbruck Court of

Appeal (Oberlandesgericht) on the ground that the dismissal of the

request for an expert opinion was unobjectionable as it was irrelevant

whether K.B. had in fact been able to see that P. was red-faced or

whether he only believed that he had seen this. The appellate court

further considered that the trial court's assessment of the available

evidence was unobjectionable. The sentence was considered to be

lenient and likewise unobjectionable.

B. Relevant domestic law

28. At the relevant time it had been a standing practice that the

Senior Public Prosecutor file a so-called croquis in such cases as

this was deemed appropriate. Such a croquis was not always and

automatically communicated to the defendant as it was considered that

the defence could safeguard its rights by requesting leave to inspect

the file under Section 82 of the Code of Criminal Procedure (see Eur.

Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211,

p. 28 para. 67).

In consequence of the Brandstetter judgment, Section 35 (2) of

the Austrian Code of Criminal procedure was amended as follows:

[Translation]

"(2) If the Public Prosecutor at the Court of Appeal submits his

observations on a plea of nullity (Nichtigkeitsbeschwerde), an

appeal or a complaint, the Court of Appeal shall communicate

these observations to the person against whom criminal

investigations are pending (the accused, the person concerned)

and shall inform his of his right to comment on these

observations within an adequate period of time to be determined

by the court. It can refrain from doing so, if the Public

Prosecutor confines himself to opposing without further

explanations the request set out in the appeal, if he only

submits a statement in favour of the person against whom criminal

investigations are pending or if the court allows the latter's

appeal."

[German]

" Nimmt der Staatsanwalt bei einem Rechtsmittelgericht zu

einer Nichtigkeitsbeschwerde, einer Berufung oder einer

Beschwerde Stellung, so hat das Rechtsmittelgericht dem

Beschuldigten (Angeklagten, Betroffenen) diese Stellungnahme mit

dem Bedeuten mitzuteilen, dass er sich binnen einer

festzusetzenden angemessenen Frist hiezu äußern könne. Diese

Mitteilung kann unterbleiben, wenn der Staatsanwalt sich darauf

beschränkt, dem Rechtsmittelbegehren ohne weitere Ausführungen

entgegenzutreten, er bloß zugunsten des Beschuldigten Stellung

nimmit, oder wenn dem Rechtsmittel des Beschuldigten Folge

gegeben wird"

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

29. The Commission has declared admissible the applicant's complaint

that in the appeal proceedings he was not given the opportunity to take

cognisance of and comment on the observations submitted by the Senior

Public Prosecutor.

B. Point at issue

30. The only point at issue is whether there has been a violation of

Article 6 para. 1 (Art. 6-1) in the appeal proceedings on account of

the fact that the Prosecution observations ("croquis") were not

communicated to the defence.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

31. The relevant part of Article 6 para. 1 (Art. 6-1) reads as

follows:

"In the determination ... of any criminal charge

against him, everyone is entitled to a fair and

public hearing ..."

The applicant alleges that on appeal he did not have a fair

hearing on the ground that the Prosecution's "croquis" with

observations on his appeal was not communicated to him.

The Government consider that communication had been unnecessary

as the croquis did not, in their opinion, contain any relevant new

argument and, in any case, arguments were discussed at the appeal

hearing.

32. The Commission recalls that the European Court of Human Rights

has found a violation of the Convention where the Senior Public

Prosecutor (Oberstaatsanwalt) filed submissions with the Court of

Appeal of which the defence knew nothing (Eur. Court H.R., Brandstetter

judgment of 28 August 1991, Series A no. 211, pp. 27-28, paras. 64-69).

On the other hand, where the defence obtain a copy of the submissions

of the Procurator General in advance of a hearing before the Supreme

Court, there may well be no violation of Article 6 (Art. 6) of the

Convention (Eur. Court H.R., Kremzow judgment of 21 September 1993,

Series A no. 268-B, p. 42, paras. 48-50).

33. In the present case the applicant did not receive the Senior

Public Prosecutor's submissions to the Innsbruck Court of Appeal at

all. It is true, as the Government submit, that the observations were

not, in any event, very detailed and did not contain any relevant new

argument. The principle of equality of arms does not, however, depend

on further, quantifiable unfairness flowing from a procedural

inequality: it is inherently unfair for the prosecution to make

submissions to a court of which the defence is unaware and on which the

defence has no opportunity to comment (see M.B.A. v. Austria, Comm.

Report 8.9.1994, pending before the European Court of Human Rights).

34. The Commission therefore finds that the passing of submissions

by the prosecution to the Court of Appeal in the present case was not

compatible with the principle of equality of arms.

CONCLUSION

35. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention by virtue of the passing of a statement to the Court of

Appeal by the Senior Public Prosecutor of which the applicant was not

aware.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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BECHTER v. AUSTRIA

BECHTER v. AUSTRIA

LEXI