Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

APPLICATION No. 16002/90

K.

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 13 October 1992)

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 - 29). . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 16 - 26) . . . . . . . . . . . . . . . . . . . . 3

B. Relevant Domestic Law

(paras. 27 - 29) . . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 30 - 67). . . . . . . . . . . . . . . . . . . . . . .10

A. Complaints declared admissible

(para. 30) . . . . . . . . . . . . . . . . . . . . . . .10

B. Points at issue

(paras. 31 - 67) . . . . . . . . . . . . . . . . . . . .10

IV. RECAPITULATION

(para. 68). . . . . . . . . . . . . . . . . . . . . . . . . .17

Partially dissenting opinion of Sir Basil Hall

joined by Mr. G. Jörundsson . . . . . . . . . . . . . . . . . . . .18

APPENDIX I : History of the proceedings before the Commission. . .20

APPENDIX II : Decision on the admissibility of the application. . .21

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 is an Austrian citizen, born in 1952, and resident

in Linz. Before the Commission he was represented by Mr. W. Moringer,

a lawyer practising in Linz.

3. The application is directed against Austria whose Government

were represented by their Agent, Ambassador Helmut Türk, Deputy

Secretary General and Legal Counsel of the Federal Ministry of Foreign

Affairs.

4. The case concerns a fine in the amount of 3.000 AS imposed on the

applicant by an Austrian court for refusing to give evidence in a

criminal matter concerning drug trafficking in which the applicant was

himself involved as a suspected buyer. It further concerns the

applicant's detention from 30 May 1989 until 4 June 1989 which was

ordered by the same court as the applicant continued to refuse to give

evidence. The applicant complains of the obligation to give evidence

incriminating himself which in his submission violates

Article 6 para. 1 of the Convention. He further considers that in the

particular circumstances his detention for refusing to give evidence

violated Article 5 para. 1. In addition he invokes Article 5 para. 4

as there was no possibility of obtaining judicial review of the

detention order.

B. The proceedings

5. The application was introduced on 27 November 1989 and registered

on 17 January 1990.

6. On 8 June 1990 the Commission decided to give notice of the

application to the respondent Government and to invite them to submit

observations in writing on the admissibility and merits of the

application.

7. On 26 February 1991 the Government submitted their observations

to which the applicant replied on 18 April 1991.

8. On 17 October 1991 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application. At

the hearing which was held on 18 February 1992 the applicant was

represented by Mr. Wolfgang Moringer, Counsel. The respondent

Government were represented by Mr. Wolf Okresek, Head of Department of

the Federal Chancellery. He was assisted by Mrs. Susanne Boigner,

Federal Ministry for Foreign Affairs, and by Mrs. Irene Gartner,

Federal Ministry of Justice.

9. After the hearing the Commission declared the application

admissible.

10. Subsequently the Commission, acting in accordance with

Article 28 para. 1 (b) of the Convention, placed itself at the disposal

of the parties with a view to securing a friendly settlement of the

case. In the light of the parties' reaction, the Commission now finds

that there is no basis on which such a settlement can be affected.

C. The present Report

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

pursuance of Article 31 of the Convention after deliberations and

votes, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

12. The text of this Report was adopted on 13 October 1992 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. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

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. Particular circumstances of the case

16. The applicant was accused before the District Court

(Bezirksgericht) in Linz of having bought between December 1988 and

18 January 1989 a total of 3 gr. of heroin from a couple, M. and

Ch. W., who were being prosecuted in separate proceedings before the

Regional Court (Landesgericht) in Linz. The applicant was charged with

the offence (Vergehen) under Section 16 of the Drug Act

(Suchtgiftgesetz) of having bought and possessed drugs. M. and Ch. W.

were charged with a crime (Verbrechen) under Section 12 of the Drug Act

for dealing with drugs (Inverkehrsetzen von Suchtgift).

17. The trial against the applicant started on 19 April 1989 but was

adjourned after he had pleaded not guilty. He was then summoned to

appear on 30 May 1989 to give evidence at the trial against M. and Ch.

W., who stood charges of drug dealing in several cases, namely having

sold a total of 24 gr. of heroin between summer 1988 and December 1988

to W. and A. H.; 2 gr. of heroin to W. St.; 2 gr. of heroin to E. B.

(sold only by M. W.) and 3 gr. of heroin to the applicant, and of

having themselves used 11 gr. of heroin between summer 1988 and

January 1989.

18. At the hearing of 30 May 1989 before the Linz Regional Court

M. W. denied having sold heroin to the applicant, while his wife

admitted having done so. Contrary to her initial confession she

alleged, however, that the deal concerned 2 gr. and not 3 gr. of

heroin.

19. Subsequently the applicant was heard as a witness in the

proceedings against M. and Ch. W. He was informed of Section 153 of

the Austrian Code on Criminal Procedure (Strafprozessordnung - StPO)

according to which a witness could refuse to answer questions if the

answer risked to expose him to criminal prosecution, but which also

empowered the Court to overrule the right of refusal.

20. The applicant replied that in view of the criminal proceedings

pending against himself he was not prepared to give evidence. Thereupon

the Court gave an order denying him leave to abstain from giving

evidence. This order was based on the reasoning that a serious offence

was at issue while the applicant faced a charge of minor importance and

it was likely that the proceedings against him would be discontinued.

21. The applicant nevertheless continued to refuse to answer the

question put to him. He was therefore fined 3,000 AS and eventually

threatened with detention. As he still persisted in refusing to give

evidence, his detention for a period of five days was ordered and he

was immediately arrested. This decision was based on the ground that

it was important to ascertain whether M.W. or Ch. W., or both, had sold

heroin to the applicant. An appeal (Beschwerde) was rejected by the

Court of Appeal (Oberlandesgericht) in Linz on 2 June 1989 as being

inadmissible.

22. The applicant's detention lasted from 14.25 hrs. on 30 May 1989

to 14.25 hrs. on 4 June 1989. The fine was paid on 6 March 1990.

23. Following investigations in accordance with Section 17 of the

Drug Act, showing that the applicant did not need medical treatment and

care, the proceedings against him were provisionally discontinued on

20 December 1989 and a period of probation of two years was fixed.

24. On 25 January 1990 the applicant gave evidence at a hearing in

the matter against M. W. and Ch. W. He stated that on two occasions

he had bought heroin of less than 1 gr. each time.

25. Meanwhile, at the suggestion of the Ministry of Justice, the

Office of the Attorney General (Generalprokuratur) had lodged a plea

of nullity for safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung

des Gesetzes) against the detention order of 30 May 1989. It was based

on the following grounds:

- that the quantity of heroin sold to the applicant was

unimportant while the total quantities in the remaining cases were

sufficient to constitute an aggravating factor;

- that the applicant's evidence was not needed as in the

investigation proceedings Ch. W. had confessed having sold 3 gr. of

heroin to the applicant and the trial court based its conviction on

this confession and not on the statement eventually made by the

applicant as a witness;

- that as regards the accused M.W. the decisive evidence had been

the result of a secret telephone surveillance and not the evidence

given by the applicant;

- that in view of all these circumstances the trial court had

wrongly considered that the interests of justice prevailed over the

applicant's interest not to give evidence.

26. On 19 December 1990 the Supreme Court (Oberster Gerichtshof)

rejected the plea of nullity stating that the question of whether the

applicant had correctly been obliged to give evidence could not be

decided on the basis of the result of the trial; it had to be decided

on the basis of the situation at the moment when the trial court took

the decision of 30 May 1989. At that moment it was not yet certain

whether Ch. W.'s confession sufficed to convict her. Furthermore the

applicant's evidence appeared to be of relevance for determining

whether Ch. W.'s husband was involved in the deal. Therefore the trial

court had not exceeded its discretionary power.

B. Relevant Domestic Law

27. The relevant provisions of the Drug Act (Suchtgiftgesetz) read:

[Translation]

Section 17

"(1) Where charges have been laid against a person for the only

reason that he or she has illegally acquired or possessed

for personal use an important amount of drugs, the Public

Prosecutor may, under the following conditions, drop the

charges provisionally for a period of probation of two

years.

...

(3) The dropping of the charge is possible under the

condition that:

1. information from the Ministry of Health and Environment

is obtained under Section 25, and

2. observations of the local health authorities are

submitted on the question whether

a. the person charged needs medical treatment or

supervision as to his/her state of health,

b. the necessary treatment or supervision is in the

given circumstances possible and not clearly without

any chances of success.

...

(6) Before dropping the charges the local authorities and the

suspect have to be informed. The latter has at the same

time to be instructed about the importance and legal

effects of the provisional discontinuance. The period of

probation is not taken into account in calculating the

period concerning the statute of limitations."

Section 19 (First sentence)

"Where an indictment has already been filed, Sections 17 and 18

apply accordingly for the purpose of a discontinuance of the

proceedings by the court."

[Original]

§ 17

"(1) Wird eine Person ausschließlich deshalb angezeigt, weil sie

den bestehenden Vorschriften zuwider eine geringe Menge

Suchtgift zum eigenen Gebrauch erworben oder besessen hat,

so hat der Staatsanwalt unter den nachstehenden

Voraussetzungen und Bedingungen die Anzeige für eine

Probezeit von zwei Jahren vorläufig zurückzulegen.

...

(3) Die vorläufige Zurücklegung der Anzeige setzt voraus, daß

1. eine Auskunft des Bundesministeriums für Gesundheit und

Umweltschutz im Sinne des § 25 und

2. eine Stellungnahme der Bezirksverwaltungsbehörde als

Gesundheitsbehörde darüber eingeholt worden ist, ob

a. der Angezeigte einer ärtztlichen Behandlung oder

Überwachung seines Gesundheitszustandes bedarf und

b. eine notwendige Behandlung oder Überwachung nach

den Umständen möglich und offenbar nicht aussichtlos

ist.

...

(6) Von der Zurücklegung der Anzeige sind die

Bezirksverwaltungsbehörde und der Angezeigte zu

verständigen. Der Angezeigte ist zugleich über Bedeutung

und rechtliche Wirkungen der Zurücklegung der Anzeige zu

belehren. Die Probezeit wird in die Verjährungsfrist nicht

eingerechnet."

§ 19 (Satz 1)

"Ist gegen den Angezeigten bereits ein Antrag auf Bestrafung

gestellt worden, so gelten die §§ 17 und 18 dem Sinn nach für

eine vorläufige Einstellung des Strafverfahrens durch das

Gericht."

28. The relevant provisions of the Code on Criminal Procedure

(Strafprozeßordnung - StPO) read as follows:

[Translation]

Section 56

"(1) In the case of several charges against the same person or

relating to the same offences committed by several people,

or in the case of one person having committed offences in

connection with others, joint proceedings do in principle

have to be instituted with regard to all persons and all

offences before the same court and this court should give

a judgment in all connected matters."

...

Section 57

"(1) The court competent under Section 56 to deal with several

connected criminal matters may on application or ex officio

order the separation of proceedings concerning individual

offences or accused, if this appears to be indicated in

order to avoid delays or complications in the proceedings

or to shorten detention on remand of a suspect."

...

Section 150

"In principle everyone summoned as a witness has the

obligation to appear and to give evidence on those

circumstances known to him and relating to the matter

under investigation."

Section 153

"(1) If giving evidence or replying to a certain question

implies ... the danger of criminal prosecution ..., and the

witness therefore refuses statements he can be obliged to

give evidence only if this is necessary in view of the

particular importance of his statement."

...

Section 160

"If the witness appears but refuses to give evidence or to take

the oath without statutory reasons the investigating judge may

impose a coercive penalty (Beugestrafe) of up to 10,000 AS and,

if the witness then persists, coercive detention of up to six

weeks may be ordered in important cases ..."

[Original]

§ 56

"(1) Liegen demselben Beschuldigten mehrere strafbare Handlungen

zur Last oder haben sich an derselben strafbaren Handlung

mehrere Personen beteiligt oder hat eine von ihnen auch

noch in Verbindung mit anderen Personen strafbare

Handlungen begangen, so ist in der Regel das Strafverfahren

gegen alle diese Personen und wegen aller dieser strafbaren

Handlungen bei demselben Gerichte gleichzeitig zu führen

und über alle zusammentreffenden Strafsachen ein Endurteil

zu fällen."

...

§ 57

"(1) Das nach § 56 für mehrere zusammentreffende Strafsachen

zuständige Gericht kann auf Antrag oder von Amts wegen

verfügen, daß über einzelne strafbare Handlungen oder gegen

einzelne Beschuldigte das Strafverfahren abgesondert zu

führen und abzuschließen sei, sofern dies zur Vermeidung

von Verzögerungen oder Erschwerungen des Verfahrens oder

zur Kürzung der Haft eines Beschuldigten dienlich scheint."

...

§ 150

"In der Regel ist jeder, der als Zeuge vorgeladen wird,

verpflichtet, der Vorladung Folge zu leisten und über das, was

ihm vom Gegenstande der Untersuchung bekannt ist, vor Gericht

Zeugnis abzulegen."

§ 153

"(1) Wenn die Ablegung des Zeugnisses oder die Beantwortung

einer Frage für den Zeugen ... die Gefahr

strafgerichtlicher Verfolgung ... mit sich brächte, und er

deshalb das Zeugnis verweigert, so soll er nur zum Zeugnis

verhalten werden, wenn dies wegen der besonderen Bedeutung

seiner Aussage unerläßlich ist."

...

§ 160

"Erscheint der Zeuge, verweigert er aber ohne gesetzlichen Grund,

ein Zeugnis abzulegen oder den Zeugeneid zu leisten, so kann ihn

der Untersuchungsrichter durch Verhängung einer Beugestrafe bis

zu zehntausend Schilling und bei weiterer Weigerung in wichtigen

Fällen durch Verhängung einer Beugehaft bis zu sechs Wochen dazu

anhalten ..."

29. The relevant provisions of the Austrian Criminal Code

(Strafgesetzbuch - StGB) read as follows:

[Translation]

Section 288

"(1) Everyone who as a witness ... gives false evidence in court

... is punishable with imprisonment of up to three years."

...

Section 290

"(1) He who gives false evidence (Sections 288, 289) ... in

order to avoid criminal prosecution against himself ... is

not punishable, if he had been granted a right not to give

evidence or could have been granted leave not to give

evidence and if

1. he did not know this,

2. he did not invoke the right not to give evidence

fearing that this alone would already cause the

consequences referred to above,

3. he was wrongly ordered to give evidence ...

...

(3) The perpetrator is nevertheless punishable even when the

requirements set out in para. (1) are fulfilled, if the

false evidence risks to cause serious disadvantages to a

third person and if he could reasonably have been expected

to tell the truth."

[Original]

§ 288

"(1) Wer vor Gericht als Zeuge ... zur Sache falsch aussagt ...

ist mit Freiheitsstrafe bis zu drei Jahren zu bestrafen."

...

§ 290

"(1) Wer eine falsche Beweisaussage (§ 288, 289) ablegt, um von

sich ... die Gefahr strafgerichtlicher Verfolgung ...

abzuwenden, ist nicht zu bestrafen, wenn er von der

Verbindlichkeit zur Ablegung eines Zeugnisses befreit war

oder hätte befreit werden können und wenn er

1. nicht wußte, daß dies der Fall war,

2. den Befreiungsgrund nicht geoffenbart hat, um die schon

aus der Offenbarung drohenden Folgen der bezeichneten

Art abzuwenden, oder

3. zur Ablegung der Aussage zu Unrecht verhalten worden ist.

...

(3) Der Täter ist jedoch auch bei Vorliegen der Voraussetzungen

des Abs. 1 zu bestrafen, wenn es ihm insbesondere im

Hinblick auf den aus der falschen Aussage einem anderen

drohenden Nachteil dennoch zuzumuten ist, wahrheitsgemäß

auszusagen."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

30. The Commission has declared admissible all of the applicant's

complaints, namely that the imposition of a fine constituted a

punishment for his refusal to give evidence and violated his right to

a fair hearing before an impartial tribunal. The applicant further

considered that his detention was unjustified as in the circumstances

he was not obliged to give evidence, and finally he complained that

there was no possibility of obtaining judicial review in respect of the

detention order.

B. Points at issue

31. The present case raises the following questions:

a. Did the fine imposed on the applicant for his refusal to

give evidence constitute a criminal sanction which was

imposed in connection with and as a consequence of the

determination of a criminal charge within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention? If so, did

the applicant have a fair hearing before an impartial

tribunal?

b. Was the applicant's right to a fair hearing within the

meaning of Article 6 para. 1 (Art. 6-1) and/or the

applicant's right to freedom of expression as guaranteed by

Article 10 para. 1 (Art. 10-1) violated by the obligation

for the applicant to give evidence in respect of events in

connection with which criminal charges had been laid

against him?

c. Was the applicant's detention in breach of Article 5

para. 1 (Art. 5-1)?

d. Did the fact that the applicant did not have any

possibility of obtaining judicial review of the detention

order constitute a violation of Article 5 para. 4

(Art. 5-4)?

I. Alleged violation of Article 6 (Art. 6) in the fine proceedings

A. Applicability of Article 6 (Art. 6) in the fine proceedings

32. The applicant argues that the fine imposed upon him for his

refusal to testify was a criminal sanction which may be imposed on any

citizen refusing to give evidence. For this reason he considers

Article 6 (Art. 6) to be applicable to the proceedings leading to the

imposition of the fine. He submits that Article 6 (Art. 6) was

violated because he could not avail himself, in the fine proceedings,

of the guarantees set out in the Article and in particular in para. 3

lit. a to c.

33. The Government deny the applicability of Article 6 (Art. 6) with

respect to the fine proceedings as the applicant was not a co-accused

but only a witness in the proceedings against M. and Ch.W. They also

pointed out that the evidence which the applicant eventually gave in

the proceedings against M. and Ch.W. was not used against him in any

way in his own criminal proceedings which have been discontinued. That

they would be discontinued was already to be expected at the moment

when the measures in question were taken against the applicant.

Furthermore the fine did not constitute a criminal sanction but was

imposed only with a view to enforcing a legal obligation, namely to

give evidence.

34. Article 6 (Art. 6) provides, so far as relevant, 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. ...

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, be given it free

when the interests of justice so require;

..."

35. The question whether the fine proceedings relate to a "criminal

charge" within the meaning of Article 6 para. 1 (Art. 6-1) must be

decided, according to the criteria established in the jurisprudence of

the European Court of Human Rights (see Engel and Others judgment of

8 June 1976, Series A no. 22; Öztürk judgment of 21 February 1984,

Series A no. 73 and Weber judgment of 22 May 1990, Series A No. 177),

on the basis of three criteria, namely

- the nature of the provisions defining the offence,

- the character of the offence itself, and

- the nature and degree of severity of the penalty incurred.

36. The legal basis of the fine imposed on the applicant was provided

by Section 160 of the Code on Criminal Procedure and not by the

Criminal Code. The word "coercive penalty" (Beugestrafe) in this

Section gives an indication but is not decisive.

37. As to the character of the offence itself, i.e., the refusal to

give evidence, it has to be noted that in some countries it may under

certain circumstances be punishable under penal law (see e.g.

Section 420 of the Spanish Code on Criminal Procedure in conjunction

with Sections 237 and 372 of the Penal Code; see also Section 193 of

the Spanish Judiciary Act - Ley Organica del Poder Judicial 6/1985),

while in others it is exclusively the Code on Penal Procedure which,

as a measure of coercion, provides for the possibility of imposing a

fine (see Section 438 of the French Code on Criminal Procedure;

Section 80 of the Belgian Code on Criminal Procedure) or,

alternatively, detention (see e.g. Section 70 of the German Code on

Criminal Procedure).

38. In the present case, the character of the fine imposed must be

seen within the context of Section 160 of the Code of Criminal

Procedure as a whole. The purpose of this rule consists in providing

the presiding judge with two instruments to put recalcitrant witnesses

under pressure, namely the coercive fine and detention for up to six

weeks. As far as the detention is concerned, it constitutes a typical

example for deprivation of liberty to secure the fulfillment of an

obligation prescribed by law. The coercive aim of the interference

with personal liberty is thus clearly distinguished, by the Convention

itself, from punitive detention.

39. It follows, in the Commission's view, that the coercive fine also

falls to be distinguished from punitive fines. Therefore, the fine

imposed upon the applicant is not penal in character and Article 6

(Art. 6) does not apply.

Conclusion

40. The Commission concludes by 7 votes to 5 that there has been no

violation of Article 6 (Art. 6) with regard to the proceedings in which

a fine was imposed upon the applicant.

II. Alleged violation of the Convention by the denial of the right

to keep silent

41. The applicant further complains of the imposition of a fine and

detention for his refusal to give evidence on an issue which concerned

the substance of a charge pending against him before the District Court

of Linz.

A. Article 10 (Art. 10) of the Convention

42. The Commission has first considered this complaint under

Article 10 (Art. 10) of the Convention which guarantees the right to

freedom of expression. In the present case this right has to be

interpreted also in the light of the guarantees laid down in Article 6

(Art. 6) of the Convention.

Article 10 (Art. 10) provides:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers ...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for

preventing the disclosure of information received in

confidence, or for maintaining the authority and

impartiality of the judiciary."

43. The applicant argues that the freedom of expression also includes

the negative freedom to withhold information and that this freedom

prevails over the interest of the judiciary to obtain evidence from a

person who by giving evidence would run the risk of self-incrimination.

44. The Government underline the right of the accused that all

evidence, including evidence in his favour, be obtained. It is this

right and the corresponding interest of the judiciary to establish the

true facts that prevailed in the applicant's case, in view of the

seriousness of the charge against the accused, M. and Ch.W., and the

probability at the relevant time that the criminal proceedings against

the applicant would be discontinued.

45. The Commission is of the opinion that the right to freedom of

expression by implication also guarantees a "negative right" not to be

compelled to express oneself, i.e. to remain silent (cf. mutatis

mutandis Eur. Court H.R., Young, James and Webster judgment of

13 August 1989, Series A no. 44 p. 21 para. 51). However, just as the

"positive right", this "negative right" may be subject to

interferences, provided that they are prescribed by law, that they

pursue one of the aims set out in Article 10 para. 2 (Art. 10-2) and

can be considered necessary in a democratic society.

46. In the present case, the applicant was forced, by the use of a

fine and of detention for five days, to testify against his will. The

Commission finds that this constituted an interference with the

negative aspect of his right to freedom of expression.

47. It is uncontested that this interference was in accordance with

the law (Article 160 StPO - see para. 28 above) and served the

legitimate interest of preventing crime which includes repression of

crime by way of criminal prosecution.

48. It remains to be ascertained whether the interference complained

of can be regarded as "necessary in a democratic society", in other

words, whether it corresponded to a "pressing social need" and was

"proportionate to the legitimate aim pursued" (cf. Eur. Court H.R.,

Sunday Times judgment of 26 April 1979, Series A no. 30, p. 38

para. 62; Observer and Guardian judgment of 26 November 1991, Series A,

no. 216 para. 59).

49. In this context the Commission has first noted that the principle

of protection against self-incrimination is, like the principle of

presumption of innocence, one of the most fundamental aspects of the

right to a fair trial. It has also noted that at the relevant time

criminal proceedings were pending against the applicant and that it was

not certain that they would be discontinued.

50. The Government argue that nevertheless in the present case the

interests of the judiciary and the public in general to have the true

facts in an important criminal case established as well as the

interests of the accused possibly to prove their innocence prevailed

over the applicant's interest in protection against self-incrimination.

51. It is however clear from the reasoning given by the Regional

Court in the detention order (see above para. 21) that the applicant's

testimony was considered to be necessary to convict M. and Ch.W., not

to establish their innocence. It has further to be noted that,

according to the grounds stated in the Attorney General's plea of

nullity for safeguarding of law, the quantity of heroin sold to the

applicant was relatively unimportant, as the total quantities in the

remaining cases were sufficient to constitute an aggravating factor.

There is nothing to show, and in particular it does not follow from the

Supreme Court's decision of 19 December 1990 rejecting the plea of

nullity (see above para. 26), that this situation did not yet prevail

at the moment the applicant's detention was ordered by the Regional

Court.

52. In these particular circumstances, and without expressing an

opinion on whether in all arguable cases the risk of self-incrimination

precludes the duty to testify, the Commission does not find that the

interference with the applicant's right to remain silent was "necessary

in a democratic society".

Conclusion

53. The Commission concludes by 10 votes to 2 that there has been a

violation of Article 10 (Art. 10) of the Convention.

B. Article 6 (Art. 6) of the Convention

54. In the applicant's view, the obligation to testify which was

imposed upon him primarily affected his right to a fair trial. Being

accused on the basis of the facts on which he was forced to testify,

he lost any chance to persist in his plea of not guilty and to be

acquitted.

55. The Government consider that Article 6 (Art. 6) is not applicable

because the proceedings against the applicant were discontinued.

56. However, the Commission has already found that the obligation to

testify constituted a violation of the applicant's rights under

Article 10 (Art. 10) due to the fact that it was in conflict with the

fundamental right of protection against self-incrimination. The

allegation under Article 6 (Art. 6) is based on the identical facts and

again raises the issue of the right of the accused to remain silent.

Therefore any violation of the right to fair trial has already been

taken into account under that conclusion.

Conclusion

57. The Commission concludes by 11 votes to 1 that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention on account

of the applicant's obligation to give evidence.

III. Alleged violation of Article 5 (Art. 5) of the Convention

58. A. Article 5 para. 1 (b) (Art. 5-1-b) provides:

"1. 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:

a. ...

b. the lawful arrest or detention of a person for

non-compliance with the lawful order of a court or in

order to secure the fulfilment of any obligation

prescribed by law;

..."

The applicant complains that his detention from 30 May to

4 June 1989 for refusing to give evidence was unlawful while the

Government contend that the measure complied with para. 1 lit (b), as

a lawful detention for non-compliance with the lawful order of a court.

59. The Commission recalls that "lawfulness" not only requires

compliance with domestic law but also with the Convention. It implies

the absence of any arbitrariness (Eur. Court H.R., Winterwerp judgment

of 24 October 1979, Series A no. 33, p. 19 para. 45; Bozano judgment

of 18 December 1986, Series A no. 111 p. 25 para. 59).

60. In the present case, the Commission has already found that the

order for the applicant to testify as a witness in the case against Mr.

and Mrs. W. was made in violation of Articles 10 [and 6] (Art. 10, 6)

of the Convention. It follows that the order to detain the applicant

with a view to compel him to testify was also in conflict with the

Convention. It cannot, therefore, be regarded as a lawful order within

the meaning of Article 5 para. 1 (b) (Art. 5-1-b). No other

justification having been invoked, it follows that the detention of the

applicant was not in accordance with Article 5 para. 1 (Art. 5-1).

Conclusion

61. The Commission concludes by 10 votes to 2 that there has been a

violation of Article 5 para. 1 (Art. 5-1) of the Convention.

B. Article 5 para. 4 (Art. 5-4) of the Convention

Article 5 para. 4 (Art. 5-4) provides:

"4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which

the lawfulness of his detention shall be decided speedily

by a court and his release ordered if the detention is not

lawful."

62. The applicant complains that during his above detention he did

not have any possibility of taking proceedings to have the lawfulness

of the detention decided speedily by a court. The Government argue

that judicial review was incorporated in the Regional Court's Order and

in any event was impracticable in view of the shortness of the period

of detention in question.

63. According to the Court's case-law, the review of the lawfulness

of arrest or detention under Article 5 para. 4 (Art. 5-4) can be

regarded as incorporated in the decision ordering it if that decision

was made by a court at the close of judicial proceedings providing the

fundamental guarantees applying in the field of deprivation of liberty

(cf. De Wilde, Ooms and Versye judgment, Series A No. 12, para. 76,

Van der Leer judgment of 21 February 1990, Series A No. 170, p. 14

para. 33).

64. In the present case, however, the decision to detain the

applicant was taken by the judge who had already overruled the

applicant's request to remain silent and had imposed a fine upon him.

The applicant, therefore, could hardly be expected to regard that judge

as being unprejudiced and impartial. Furthermore, the applicant had

hardly any time or facilities to defend himself nor did he have the

possibility of obtaining assistance by counsel.

The right to review of the lawfulness of the applicant cannot,

therefore, be considered to have been incorporated in the decision to

detain him.

65. The Commission has next examined the Government's objection that

the detention of the applicant was of such short duration that he was

released before any judicial control within the meaning of Article 5

para. 4 (Art. 5-4) could practically have taken place (cf. Eur. Court

H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A

No. 182, p. 20 para. 45). However, in view of the fact that the

applicant was ordered to be detained during court proceedings in Linz,

which is also the seat of a court of appeal, the Commission finds that

it must have been possible to organise a judicial review of the

applicant's detention within a period considerably shorter than five

days. In this context, the Commission also notes that under Section

160 of the StPO detention may be ordered for up to six weeks.

66. Finally, the Commission notes that the Government did not invoke

any basis in statute law or case-law under which the applicant would

have had the possibility to have the lawfulness of his detention

examined by a judicial remedy. It follows that Article 5 para. 4

(Art. 5-4) has not been complied with.

Conclusion

67. The Commission concludes by 10 votes to 2 that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention.

IV.RECAPITULATION

68. The Commission concludes

by 7 votes to 5 that there has been no violation of Article 6

(Art. 6) with regard to the proceedings in which a fine was

imposed upon the applicant (para. 40).

by 10 votes to 2 that there has been a violation of Article 10

(Art. 10) of the Convention (para. 53).

by 11 votes to 1 that there has been no violation of Article 6

para. 1 (Art. 6-1) of the Convention on account of the

applicant's obligation to give evidence (para. 57).

by 10 votes to 2 that there has been a violation of Article 5

para. 1 (Art. 5-1) of the Convention (para. 61).

by 10 votes to 2 that there has been a violation of Article 5

para. 4 (Art. 5-4) of the Convention (para. 67).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Partially dissenting opinion of Sir Basil Hall

Joined by Mr. G. Jörundsson

Alleged violation of Article 6 in the fine proceedings

1. I agree with the conclusion of the majority of the Commission

that there has been no violation of Article 6 in the proceedings

leading to the imposition of a fine on the applicant for refusing to

answer a question put by the Linz Regional Court. These proceedings did

not involve the determination of a criminal charge. In respect of his

other complaints my conclusions differ from those of the majority.

Alleged violation of Article 10

2. The majority of the Commission express the view that the right

to freedom of expression by implication also guarantees a "negative

right" not to be compelled to express oneself, i.e. to remain silent.

I do not share that view if it is to be regarded as a general

proposition. Exceptionally it may happen that that the maintenance of

silence itself communicates a point of view or information. In general

however the object of Article 10 is to promote the free flow of

information and ideas, not to restrict it.

3. There are many circumstancse in life in which the imparting of

information is a necessity. Sometimes the requirement is conditional,

for example one cannot obtain social security benefits, admission to

a hospital or even a driving licence without providing information.

Sometimes the requirement is absolute, for example to make a tax

return, in the case of a business enterprise to publish accounts, to

make a census return or even, for electoral purposes to state who is

living in one's house. It is difficult to see that these examples fall

within the ambit of paragraph 2 of Article 10, the wording of which is

indeed hardly compatible with the interpretation of paragraph 1 as

conferring a right to silence.

4. Furthermore, even if I had shared the opinion of the majority

that there is a right to silence, I would have regarded the restriction

on silence in this case as being necessary in a democratic society for

the prevention of crime. The court, in requiring the applicant to give

evidence, had regard to the serious nature of the offence at issue, the

fact that the applicant faced a charge of minor importance, and the

likelihood of the proceedings against him being discontinued. These

proceedings were indeed provisionally discontinued. A period of

probation of two years was fixed. That period has now elapsed.

5. My conclusion then is that Article 10 has no application in this

case; and that, even if it had, there could have been no violation of

that Article.

Alleged violation of Article 6 in the criminal proceedings

against the applicant

6. The applicant complained that the obligation to give evidence in

respect of events in connection with which criminal charges had been

laid against him violated the principle of a fair trial within the

meaning of Article 6 paragraph 1 of the Convention.

7. It is unnecessary in this case to consider whether a requirement

to make an incriminating statement can constitute a violation of

Article 6. The criminal proceedings against the applicant did not

culminate in the determination of a criminal charge againt him - they

were discontinued. Article 6 therefore has no application.

Alleged violations of Article 5

8. The order of the Court to detain the applicant from 30 May to

4 June 1989 was plainly lawful under domestic law. As stated above it

was also in my opinion not in conflict with the Convention. His

detention was therefore in accordance with Article 5 para. 1 (b) as

being a lawful detention of a person for non-compliance with the lawful

order of a court, namely the order of the Court that he should give

evidence.

9. There was therefore no violation of Article 5 para. 1 of the

Convention. It follows that there was no violation of Article 5

para. 4.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

____________________________________________________________________

27 November 1989 Introduction of the application

17 January 1990 Registration of the application

Examination of Admissibility

8 June 1990 Commission's decision to invite the

Government to submit observations on

the admissibility and merits of the

application.

26 February 1991 Government's observations.

22 April 1991 Applicant's observations in reply.

17 October 1991 Commission's decision to hold an oral

hearing.

18 February 1992 Oral hearing on admissibility and

merits, Commission's decision to

declare the application admissible.

Examination of the merits

16 May 1992 Commission's consideration of the

state of proceedings.

13 October 1992 Commission's deliberations on the

merits and final vote.

13 October 1992 Adoption of the Report.

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K. v. AUSTRIA

K. v. AUSTRIA

LEXI