AS TO THE ADMISSIBILITY OF

Application No. 28440/95

by Zuhdija HUSIC

against Austria

The European Commission of Human Rights (First Chamber) sitting in private on 22 October 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 May 1995 by Zuhdija HUSIC against Austria and registered on 4 September 1995 under file No. 28440/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

- the observations submitted by the respondent Government on 9 July 1997 and the observations in reply submitted by the applicant on 20 October 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1955, is a Bosnian national, residing in Kufstein .  Before the Commission he is represented by Mr. Orgler , a lawyer practising in Innsbruck.

The facts, as submitted by the parties may be summarised as follows.

On 9 May 1994 the Korneuburg Public Prosecutor's Office ( Staatsanwaltschaft ) filed a bill of indictment against the applicant in which he was charged with attempted aggravated coercion ( versuchte schwere Nötigung ), attempted incitement to fraud ( versuchte Anstiftung zum Betrug ) and the causing of bodily harm ( Körperverletzung ).  The Public Prosecutor's Office submitted that the applicant had attempted to force his foreman A.R. , by threatening him with blowing up his car, to note more hours in the daily work sheet than he had actually worked.  Thereby the applicant had attempted to induce A.R. to deceive the company employing him and to cause it to pay him an excessive salary.  Furthermore the applicant had injured A.R. by hitting him with his fist in the face.

On 12 December 1994 the Innsbruck Regional Court ( Landesgericht ) held the third hearing in the trial against the applicant.  The applicant was assisted by an ex-officio defence counsel.  At the end of this hearing the witness J.J. gave evidence on the events and on a dispute between the applicant and A.R.

Upon being questioned by the defence counsel the witness said that the applicant was a Yugoslav.  The defence lawyer then requested the witness to explain the difference between a Turkish and a Yugoslav worker as he had done outside the court room before the hearing started.  The witness thereupon stated that the toilets and bathrooms of Turkish workers were very clean and that one could leave money unattended without it being stolen, while this was not the case with Yugoslav workers.

The judge then made the comment that this impression was consistent with his own.

Immediately after this statement the defence counsel challenged the judge for bias.  After having heard the public prosecutor the judge dismissed the motion finding that he was not biased.

On 3 February 1995 the Regional Court convicted the applicant of having caused bodily harm and sentenced him to a fine of ATS 3,000.  It acquitted the applicant of the offences of attempted aggravated coercion and attempted incitement to fraud.

The court found that on 2 February 1994 the applicant had worked  on a building site of the University of Vienna.  At 10.00 hours he had stopped working, while the foreman A.R. had continued to work until 20.30 hours.  When A.R. had got into his car, he recognised that someone had stolen his purse from his jacket which he had left in the car.  He had immediately suspected the applicant.  When A.R. had called the applicant to account for the alleged theft, the applicant, who had drunk during the day, became angry.  A violent dispute had followed in the course of which the applicant had hit A.R. with his fist in the face, which had caused A.R. a bruise on the eye.

As regards the other two offences of which the applicant was acquitted the court stated that the applicant had only requested A.R. to note the hours he had actually worked.  On this occasion the applicant had given vent to his anger about the unjustified accusations concerning the theft and had made some obviously not serious statements, that A.R. had considered as threats against him.

In the assessment of evidence the court relied on the applicant's statement at the trial according to which he had felt very angry because A.R. had accused him of theft and that he had therefore hit A.R.   The injuries suffered by A.R. were not only proven by A.R.'s statement but also confirmed by the statements of two other witnesses.  The court found that the applicant had not acted in self- defence .  During the whole proceedings the applicant had never stated that he had acted in self defence .  This was confirmed by the statement of A.R. who had said that he had not hit the applicant but merely had held him. A.R.'s statement was particularly credible because he had on his own motion and following questions by the court stated that he had not felt threatened by the applicant.  This meant that A.R. clearly had no intention to falsely incriminate the applicant.  In view of these statements the court did not accept the statements of two of the witnesses, A.S. and I.S., two Yugoslav nationals, who had stated that it had been A.R. who had started the fight.  Moreover the statements of these witnesses had not been sufficiently precise.  As concerns the applicant's intent to harm A.R. , the court stated that his intent to do so was shown by his conduct and by his statement that he had hit A.R. because he had felt angry.

When fixing the sentence the court considered two previous convictions as aggravating circumstances and the applicant's confession concerning the facts, his state of inebriation and the circumstance that he had felt provoked by A.R. as mitigating circumstances.

On 24 April 1995 the applicant filed an appeal for nullity, against the finding of guilt and against the sentence ( Berufung wegen Nichtigkeit , Schuld und Strafe) with the Innsbruck Court of Appeal ( Oberlandesgericht ).  He complained in particular, that the judge had been biased against him, because the judge had stated during the trial that his own impression was consistent with the statement of a witness according to which "the toilets and bathrooms of Turkish workers were very clean and one could leave money unattended without it being stolen while this was not the case with Yugoslav workers."  The applicant contended that as he was a Bosnian national this statement cast doubts on the objectivity and impartiality of the judge and thus infringed his right to a fair trial within the meaning of Article 6 of the Convention.

The applicant complained further that the court had not duly reasoned its findings concerning the applicant's intent to harm A.R. and had not examined the manner in which A.R. accused the applicant of having stolen the money.  Both statements were of particular importance to the question, whether the applicant had acted with intent.  The fact that the applicant had hit A.R. merely constituted an excusable insult having regard to the circumstances.  As regards the assessment of evidence the applicant submitted that the court had overestimated the evidence given by A.R. and had not duly taken into account the evidence given by A.S. and I.S.  If the court had not been biased and had evaluated the evidence correctly it would have come to the conclusion that the applicant had acted in self- defence .

On 24 May 1995 the Court of Appeal dismissed the applicant's appeal.  It considered whether the alleged bias of the judge constituted a ground of nullity under the Code of Criminal Procedure.  It found that the remark of the judge had no connection with the charge raised against the applicant which concerned the causing of bodily harm, or the applicant himself, though the applicant was a national of Bosnia-Herzegovina.  Although the remark was unnecessary and unfortunate it was not of such a nature as to give rise, objectively speaking, to doubt about the judge's impartiality.

As regards the applicant's complaint about the insufficient reasoning concerning the applicant's intent to harm A.R. , the Court of Appeal found that the Regional Court had sufficiently stated the relevant facts and had sufficiently reasoned these statements.   As regards the applicant's complaint that the Regional Court had not examined the manner in which A.R. had accused the applicant of having stolen money and had therefore failed to conclude that the applicant's act was an excusable insult, the Court of Appeal found that hitting A.R. with the fist went quite beyond an excusable insult.  On the basis of the facts established by the Regional Court the applicant could not rely either on the argument that he had acted in self- defence .

The Court of Appeal also found that the Regional Court had properly assessed the evidence before it.  In particular, the statements given by A.S. and I.S., according to which A.R. had started to hit the applicant were in contradiction with the applicant's own statements.  It was therefore unobjectionable that the Regional Court had not based its conclusions on the evidence given by these two witnesses, but had attached more weight to the statements made by A.R.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he did not have a fair trial by an impartial tribunal.  He submits that  following the statement of a witness that "the toilets and bathrooms of Turkish workers were very clean and one could leave money unattended without it being stolen, while this was not the case with Yugoslav workers" the judge of the Regional Court said that this impression was consistent with his own.  This remark strongly suggests that the judge was biased against him.

He further complains that the Austrian Code of Criminal Procedure violates Article 6 of the Convention because it provides that at the trial judges decide themselves on a motion by which they are challenged for bias.  According to the applicant no appeal lies against such a decision and according to academic writing a wrong decision does not constitute a ground of nullity.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 May 1995 and registered on 4 September 1995.

On 10 April 1997 the Commission decided to communicate the application to the respondent Government.

The Government's written observations were submitted on 9 July 1997, after an extension of the time-limit fixed for that purpose.  The applicant replied on 20 October 1997.

THE LAW

1. The applicant complains under Article 6 of the Convention that he did not have a fair trial by an impartial tribunal in that the remark of the judge of the Regional Court following certain statements made by the witness J.J. at the hearing of 12 December 1994 which strongly suggested that the judge was biased against him.

Article 6 para. 1 of the Convention, insofar as relevant reads as follows:

"1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law."

The Government submit that the judge's remark in the hearing of 12 December 1994, although being unfortunate and unnecessary as the Court of Appeal had found, was not evidence of subjective bias on the part of the judge.  Considering the proceedings in their entirety there is no indication that when deciding the case the judge was guided by unobjective motives.

This is disputed by the applicant.  In his view the judge's statement can only be qualified as an indication of his bias in the subjective and objective sense.  The applicant had not shown any conduct which could have justified the judge's value judgement.  Thus, the judge had expressed a prejudice aimed at a group of the population to which the applicant belongs. It cannot be verified whether and to which extent such a predisposition of the judge could have influenced the outcome of the proceedings.  It cannot be excluded, however, that this prejudice had a bearing on the judge's assessment of evidence.

The Commission considers, in the light of the parties' submissions, that this part of the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant further complains that the Austrian Code of Criminal Procedure violates Article 6 of the Convention because it provides that at the trial judges decide themselves on a motion by which they are challenged for bias.  According to the applicant no appeal lies against such a decision and according to academic writing a wrong decision does not constitute a ground of nullity.

The Commission observes however, that in the present case the Court of Appeal examined the decision of the judge by which he had dismissed the challenge for bias, but considered this decision to be correct.  The applicant therefore had a remedy against the decision of the first instance judge and also used it. 

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicant's complaints that the judge made statements which cast doubt on his impartiality ;

DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO    M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber