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