Lexploria

Application No. 12398/86

Johann ASCH

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 3 April 1990)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-12) .................................... 1

A. The application

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

B. The proceedings

(paras. 5-7) ............................. 1

C. The present Report

(paras. 8-12) ............................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 13-33) ................................... 3

A. The particular circumstances of the case

(paras. 13-30) ........................... 3

B. Relevant domestic law

(paras. 31-33) ........................... 5

III. OPINION OF THE COMMISSION

(paras. 34-50) ................................... 7

A. Point at issue

(para. 34) ............................... 7

B. Compliance with Article 6 paras. 1 and 3 (d)

of the Convention

(paras. 35-49) ........................... 7

Conclusion

(para. 50) ............................... 9

DISSENTING OPINION OF MESSRS. C.A. NØRGAARD, G. SPERDUTI

AND J.C. SOYER AND MRS. G.H. THUNE ........................ 10

DISSENTING OPINION OF Mr. F. MARTINEZ ..................... 11

APPENDIX I: HISTORY OF THE PROCEEDINGS ............... 12

APPENDIX II: DECISION ON THE ADMISSIBILITY ............ 13

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, born in 1934, is an Austrian citizen residing

at Laaben in Austria. Before the Commission, he is represented by Mr.

St. Gloss, a lawyer practising in St. Pölten.

The application is directed against the Republic of Austria

whose Government were represented by their Agent, Ambassador Helmut

Türk, Head of the International Law Department at the Federal Ministry

of Foreign Affairs.

3. The application relates to criminal proceedings instituted

against the applicant on the ground of compulsion and bodily injury

committed towards his life companion, Ms. J.L. In particular, the

latter reported at the police station that the applicant had beaten

her and threatened to kill her. At the trial J.L. refused to give

evidence. Thereupon, the minutes of her statement made at the police

station were read out in court. The applicant was then convicted of

compulsion and bodily injury.

4. The applicant complains under Article 6 paras. 1 and 3 (d) of

the Convention that he was convicted mainly on the basis of the

statement of his life companion read out in court, although at the

trial she did not give evidence and he could not put questions to

her.

B. The proceedings

5. The application was introduced on 22 August 1986 and

registered on 24 September 1986.

On 4 July 1988 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to present

their observations in writing on the admissibility and merits of the

application. The Government's observations were submitted on

31 October 1988 and the applicant's reply thereto on 5 December 1988.

6. On 10 July 1989 the Commission declared the application

admissible.

7. After declaring the application 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 of the case. Consultations with the

parties took place between 12 July and 3 October 1989. In the light

of the parties' reaction, the Commission now finds that there is no

basis upon which a settlement can be effected.

C. The present Report

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

pursuance of Article 31 of the Convention and after deliberation and

votes, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

9. The text of this Report was adopted on 3 April 1990 and

is now transmitted to the Committee of Ministers of the Council of

Europe in accordance with Article 31 para. 2 of the Convention.

10. The purpose of the Report, pursuant to Article 31 para. 1 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.

11. 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.

12. 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

13. In the night of 5 to 6 July 1985 the applicant returned home

at midnight whereupon a dispute arose with his life companion, Ms.

J.L., who lived with him. In the course of the dispute the applicant

ordered J.L. to leave the house. She then drove to her mother.

14. In the morning of 6 July 1985 J.L. visited a doctor who

referred her on the same day to the St. Pölten hospital. A

notification to the hospital by the doctor (Verletzungsanzeige) of 9

July 1985 stated that J.L. had multiple bruises and was suffering from

a headache. A report of the casualty department at the St. Pölten

hospital issued on 11 July 1985 stated that J.L. had been maltreated

with a belt, and a diagnosis showed that she had a bruise on her head

and multiple bruises on her body ("contusio capitis, contusio

multipl.").

15. In the evening of 6 July 1985 J.L. reported the incident of

the previous night to the Brand-Laaben Police Station (Gendarmerie-

posten). According to the police minutes (Niederschrift)

simultaneously prepared by one police officer B., J.L. alleged that,

during the course of the verbal dispute with the applicant, he had

said: "If you do not get out of here now, I shall wallop you" ("Wenn

Du Dich jetzt nicht schleichst, dann wasche ich Dich"). In J.L.'s

submissions, she did not comply. He then beat her with a belt on the

back, the arms and the legs. Thereafter he fetched a gun and

threatened to kill her. She claimed that she kneeled before him,

urging him to reflect on what he was doing. When he paused, she

quickly left the house.

16. After J.L. had made this statement, the police officer at

once informed the St. Pölten Public Prosecutor's Office

(Staatsanwaltschaft) by telephone of the occurrences. The latter

gave oral instructions not to arrest the applicant or to impound

his gun.

17. Subsequently, the applicant and J.L. made up their

differences. On 7 July 1985 she moved back into his house. On

10 July 1985 in the morning she requested the Brand-Laaben Police

Station not to prosecute the applicant.

18. The applicant was questioned at the Brand-Laaben Police

Station on 10 July 1985 in the evening. He explained the events,

and he denied having employed force or having threatened J.L. with

a gun. In the applicant's submissions, J.L. only had a scratch

(Kratzer) on her back and had told him that she had reported him to the

police as she was so furious with him.

19. On 16 July 1985 the Brand-Laaben Police Station filed a

criminal report (Strafanzeige) with the Neulengbach District Court

(Bezirksgericht). The report largely reiterated the statements of

J.L. at the police station on 6 July 1985. It included as annexes the

general practitioner's notification of 9 July 1985, the report of the

St. Pölten Hospital of 11 July 1985, and the minutes of J.L.'s

statements on 6 July 1985, as well as of those of the applicant on

10 July 1985.

20. On 7 August 1985 the St. Pölten Public Prosecutor's Office

indicted the applicant before the St. Pölten Regional Court

(Kreisgericht) on the grounds of compulsion (Nötigung) and bodily

injury (Körperverletzung). It further requested the hearing at the

trial of J.L. and the police officer B. as well as the reading out of

the criminal report, of the extract from the criminal record and of

the file of the applicant's previous convictions in accordance with

S. 252 para. 2 of the Code of Criminal Procedure (Strafprozessordnung,

see below Relevant domestic law and practice).

21. The trial (Hauptverhandlung) took place on 15 November 1985.

The applicant was heard first. He stated that he was not guilty and

that he had not injured J.L. In his opinion J.L. had injured herself

that night on a board at the end of the bed.

22. J.L. was then heard as a witness. The Court informed her of

S. 152 of the Code of Criminal Procedure (see below Relevant

domestic law and practice). Thereupon, she stated that she would

exercise her right to refuse to give evidence. The police officer B.

was also heard. He explained how J.L. had come to him to the police

station and what she had told him.

23. According to the trial minutes, no further requests were made

by the parties. The criminal report of 16 July 1985 and the minutes

of the statement of J.L. before the police on 6 July 1985 were then

read out in Court. The Public Prosecutor's Office finally requested

the Court to convict the applicant, whereas the latter requested to be

acquitted.

24. In its ensuing judgment of 15 November 1985, the St. Pölten

Regional Court convicted the applicant of compulsion and bodily

injury according to S. 105 and 83 of the Penal Code (Strafgesetzbuch),

respectively, and sentenced him to 180 daily rates of 80.- AS or,

alternatively, to 90 days' imprisonment.

25. In the reasons for its judgment the Regional Court relied on

the statement of the accused, the testimony of the police officer B.,

as well as the police investigations (Gendarmerieerhebungen) and the

annexed preliminary file (angeschlossener Vorakt). The Court regarded

it as proven that in the night of 5 to 6 July 1985 the applicant had

threatened J.L. that if she did not leave he would beat her, that he

then beat her, thus injuring her, and later fetched a gun and ordered

her to leave. The Court noted here the subsequent diagnosis of the

doctor.

26. The Court did not find sufficiently credible the applicant's

denial that he had not committed the offences. The Court regarded

J.L.'s statement at the police station as firm and credible, as

confirmed by the police officer B., even if she did not testify at the

trial and, on 10 July 1985, requested the police no longer to prosecute

the applicant.

27. The Court saw no ground to assume that J.L. had intended

slanderously to incriminate the applicant. In the Court's view, the

case file also demonstrated that the applicant was by nature choleric

and his conduct unpredictable.

28. The Court found it established with sufficient certainty for

purposes of the criminal proceedings that the events had occurred in

the manner explained by J.L. at the police station.

29. The applicant then filed an appeal (Berufung) in which he

complained inter alia that the Regional Court had read out at the

trial a document of the preliminary investigations (Vorerhebungsakt)

which was null and void according to the law. Although he had not

been represented by a lawyer he had not been directed (angeleitet) by

the Court to contest the document. Neither he nor J.L. had been

questioned (Vernehmung) by the Court. The applicant also submitted

that the Court should have obtained a medical expert opinion.

30. The appeal was dismissed on 19 March 1986 by the Vienna Court

of Appeal (Oberlandesgericht). In respect of the applicant's

complaint concerning the reading out of the minutes of J.L.'s

statement before the police station, the Court of Appeal stated that,

if a witness did not testify, the Court concerned was obliged under

S. 252 para. 2 of the Code of Criminal Procedure to read out and

assess any statements made out of court. This was constant case-law

and the Court saw no reason to depart therefrom.

B. Relevant domestic law

31. S. 152 of the Criminal Procedure concerns exemptions from the

obligation to testify at the hearing. Para. (1) subpara. 1 states:

"(1) Von der Verbindlichkeit zur Ablegung eines

Zeugnisses sind befreit:

1. Die Angehörigen des Beschuldigten (§ 72 StGB),

wobei die durch eine Ehe begründete Eigenschaft einer Person

als Angehöriger aufrecht bleibt, auch wenn die Ehe nicht

mehr besteht."

"(1) There shall be exempted from the obligation to

testify:

1. the members of the accused's family (S. 72 of

the Penal Code), and in this context a person who has become

a family member by marriage retains this status even if

the marriage no longer exists."

32. S. 72 para. (2) of the Penal Code considers as members of the

family persons of different sex living together in an extramarital

life community (aussereheliche Lebensgemeinschaft).

33. S. 252 of the Code of Criminal Procedure provides, insofar as

it is relevant to the present case:

...

(2) Augenscheins- und Befundaufnahmen, gegen den

Angeklagten früher ergangene Straferkenntnisse sowie

Urkunden und Schriftstücke anderer Art, die für die Sache

von Bedeutung sind, müssen vorgelesen werden, wenn nicht

beide Teile darauf verzichten.

(3) Nach jeder Vorlesung ist der Angeklagte zu befragen,

ob er darüber etwas zu bemerken habe."

...

(2) Reports on inspections and tests, previous criminal

convictions of the defendant, as well as other types of

documents and papers relevant to the matter must be read out

unless both parties agree that they should not be read out.

(3) After each reading out, the accused must be asked

whether he wishes to comment thereupon."

III. OPINION OF THE COMMISSION

A. Point at issue

34. The issue to be determined is whether, in the criminal

proceedings against the applicant, his rights of defence under

Article 6 para. 3 (d) in conjunction with his right to a fair trial

under Article 6 para. 1 (Art. 6-3-d+6-1) of the Convention were

disregarded.

B. Compliance with Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d)

35. The applicant alleges a breach of Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention. These provisions, insofar as

they are relevant, state:

"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. ...

3. 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; ..."

36. The applicant submits that he was convicted by the St. Pölten

Regional Court on the basis of a statement made by J.L. at the police

station, which was read out at his trial. He was not allowed to put

questions to J.L. As she exercised her right to refuse to give

evidence the Court should not have had the minutes of her previous

statement read out.

37. The applicant submits that the police station is not a court

and the police officer on duty was not a lawyer. At the police

station J.L. could state what she liked without risking prosecution.

The Regional Court nevertheless relied in its judgment on the minutes

of the statement of J.L. which it regarded as credible. Had the Court

not relied on J.L.'s statement, it would have had to rely on the

applicant's statement according to which he was innocent.

38. The Government refer to the Unterpertinger judgment of the

European Court of Human Rights according to which the reading out of

minutes as a result of the refusal of a witness to testify does not in

itself contravene Article 6 (Art. 6) of the Convention, as long as the

rights of the defence are protected (judgment of 24 November 1986,

Series A no. 110, p. 14-15 para. 31). The Government submit that an

accused is prevented from putting questions to a witness who has died

or cannot be found. In the present case the St. Pölten Regional

Court heard the police officer B., to whom the applicant did not put

questions. The Court had no reason to doubt J.L.'s statements for

which reason it did not take additional evidence ex officio. Its

judgment was based on police officer B.'s testimony, and the police

investigations, and the Court gave reasons why it was unable to

accept the applicant's version.

39. The Government conclude therefrom that the applicant was not

convicted primarily on the basis of a testimony in respect of which

his defence rights were appreciably restricted.

40. The Commission considers that the guarantees contained in

paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific

aspects of the general concept of a fair trial set forth in

paragraph 1 (Art. 6-1). In the circumstances of the present case the

Commission will therefore consider the applicant's complaints from the

angle of paragraph 1 taken together with the principles inherent in

paragraph 3 (d) (Art. 6-3-d) W. v. Austria, Comm. Report 12.7.89,

para. 29).

41. As a general rule it is for the national courts to assess the

evidence before them as well as the evidence which the accused seeks

to adduce. However, the Convention organs must determine whether the

proceedings considered as a whole, including the way in which evidence

was taken, were fair as required by Article 6 para. 1 (Art. 6-1) of the

Convention (Eur. Court H.R., Kostovski judgment of 20 November 1989,

Series A no. 166, para. 39).

42. The Commission further recalls that the reading out of

statements at the trial, on which the judgment later is based

cannot in itself be regarded as being inconsistent with Article 6

paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention. Nevertheless

the use made of such statements must comply with the rights of the

defence. On the one hand, 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, loc. cit., p. 14-15 para. 31).

43. On the other hand, the Commission has found in previous cases

that Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d), which are aimed

at securing in criminal proceedings equality between the defence and

the prosecution, do not give an accused an unlimited right to obtain

the appearance of, and to examine witnesses in court (see W. v.

Austria, loc. cit. para. 32; No. 9000/80, Dec. 11.3.82, D.R. 28

p. 127).

44. In the present case the Commission notes that, at the trial

before the St. Pölten Regional Court, J.L. exercised her right under

S. 152 of the Code of Criminal Procedure to refuse to give evidence.

Thereupon, the minutes of her statement made at the police station on

6 July 1985 were read out. In its judgment, the Court found it

established with sufficient certainty that the events had occurred in

the manner explained at the police station by J.L. whose statement the

Court found sufficiently firm and credible.

45. Ms. J.L., by exercising her right not to give evidence,

prevented the applicant from examining her or having her examined on

her statements at the trial.

46. It is true that the applicant was able to submit his own

comments freely at the trial and that J.L.'s statement was not the

only evidence before the Court. The latter also had before it the

applicant's statement, the police investigations and the annexed

preliminary file, which included the criminal report and the

notification by the doctor, as well as the evidence given by police

officer B. as a witness at the trial.

47. However, it is clear from the judgment of 15 November 1985

that the Regional Court based the applicant's conviction mainly on the

statement made by J.L. to the police. The Court did not treat this

statement simply as an item of information but as proof of the truth

of the accusation made by J.L. at the time. In referring to the

evidence of police officer B. and to the investigations made by the

police, the Court was again in substance relying on J.L.'s statement,

since this evidence reiterated to a large extent what J.L. had stated

at the police station.

48. As a result, the Commission considers that, while it was for

the Regional Court to assess the material before it, the applicant was

nevertheless convicted on the basis of "testimony" in respect of which

his defence rights were appreciably restricted (see Eur. Court H.R.

Unterpertinger judgment, loc. cit., p. 15 para. 33).

49. In these circumstances the Commission finds that the

applicant's right to a fair trial, in particular his right to examine

or have examined witnesses against him, was not respected.

C. Conclusion

50. The Commission concludes, by 12 votes to 5, that there

has been a violation of paragraph 1, read in conjunction with

paragraph 3 (d), of Article 6 (Art. 6-1+6-3-d) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Dissenting opinion by Messrs. C.A. Nørgaard, G. Sperduti and

J.C. Soyer and Mrs. G.H. Thune

We agree with the Commission's approach that its decision in

the present case must be based on the case-law as laid down by the

European Court of Human Rights in the Unterpertinger case.

There are admittedly many similarities between the

Unterpertinger case and the present case. It is therefore tempting to

conclude that the applicant was ... convicted on the basis of

"testimony" in respect of which the defence rights were appreciably

restricted and consequently to find a violation of Article 6 para. 1

read in conjunction with Article 6 para. 3 (d) of the Convention.

In our opinion however the cases can be distinguished in

several respects. The main difference is the following: In the

Unterpertinger case the decision was based mainly on the "testimony"

given by Mrs. Unterpertinger and her daughter to the police

concerning violent family quarrels. It was not contested that such

quarrels had taken place. However it was most important to determine

whether Mr. Unterpertinger had acted in self-defence or not. In

deciding this question medical certificates were of little use whereas

the "testimony" of Mrs. Unterpertinger and her daughter and the

possibility of cross-examining them in court would have been of

crucial importance in establishing the relevant facts.

In the present case the applicant denies using force against

J.L. In finding that the applicant had used force against her, the

court did not have to rely solely on J.L.'s "testimony" to the police

but had before it two medical certificates which, although not

conclusive, strongly supported J.L.'s allegations that force had been

used against her. They were thus of great importance for the

establishment of the facts of this case.

In these circumstances we find that the present case can be

distinguished from the Unterpertinger case. We find it difficult to

accept the conclusion that the applicant's conviction was based mainly

on the statements made by J.L. to the police.

Consequently and to our regret we have not been able to share

the opinion of the Commission and have thus voted for no violation of

Article 6 para. 1 read in conjunction with Article 6 para. 3 (d).

Opinion dissidente de M. Martinez

A mon regret, je m'écarte de la majorité de la Commission car

je n'arrive pas à voir en l'espèce une violation de l'article 6 de la

Convention.

Je pourrais accepter les termes du rapport de la Commission

jusqu'au paragraphe 46 inclus. Mais je dois montrer mon désaccord

pour le reste.

A mon avis il n'est pas exact de dire que le jugement du

tribunal régional en date du 15 novembre 1985 a fondé la culpabilité

du requérant sur les déclarations de J.L. à la police. Je vois que le

tribunal, appelé à confronter deux versions, celle de la victime et

celle du requérant, a eu recours à d'autres éléments produits lors du

procès et a trouvé digne de foi la première version, et non la

seconde. Parmi ces autres éléments se trouvent les traces sur le

corps de la victime constatées par un médecin que celle-ci a consulté

peu après l'événement, le rapport de l'hôpital de St. Pölten et la

déclaration de l'officier de police B. qui avait reçu la victime le

lendemain.

La victime n'a pas pu être interrogée à l'audience, s'étant

prévalue de l'article 152 du Code de procédure criminelle ; elle a

fait des déclarations au policier B., que le requérant aurait pu mais

n'a pas voulu faire interroger. Les documents et rapport, y compris

la déclaration de la victime devant la police, ont été lus à l'audience

conformément à l'article 252 du Code de procédure criminelle et rien

n'empêchait le requérant de faire des observations à leur sujet.

Dans ces conditions, on ne saurait dire que le tribunal a

formé sa conviction de façon arbitraire ou que les droits de la

défense n'ont pas été respectés selon les exigences de la Cour

européenne des Droits de l'Homme énoncées dans son arrêt

Unterpertinger.

Trouver ici une violation de l'article 6 de la Convention

équivaut à dire que le juge national n'aurait pas dû déclarer le

requérant coupable au vu des éléments qu'il a appréciés dans les

limites de son pouvoir souverain. Autrement dit, je crains que la

Commission n'ait empiété ici sur le rôle des juridictions internes.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

__________________________________________________________________

22 August 1986 Introduction of the application

24 September 1986 Registration of the application

Examination of admissibility

4 July 1988 Commission's decision to invite the

Government to submit observations on

the admissibility and merits of the

application

31 October 1988 Government's observations

5 December 1988 Applicant's observations in reply

10 July 1989 Commission's decision to declare the

application partly admissible

Examination of the merits

16 October 1989 Applicant's supplementary observations

9 December 1989 Commission's consideration of the state

of proceedings

3 April 1990 Commission's deliberations on the merits

and final vote and adoption of the Report

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ASCH v. AUSTRIA

ASCH v. AUSTRIA

LEXI