Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22925/93

by Johannes KÖNIG

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 3 November 1993

by Johannes KÖNIG against Austria and registered on 16 November 1993

under file No. 22925/93;

Having regard to:

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

the Commission;

- the Commission's decision of 11 April 1995 to communicate the

application without asking the parties for observations on the

admissibility and merits and to await the Court's judgment in the

case of Bulut v. Austria;

- the judgment of the Court in the case of Bulut v. Austria

(Eur. Court H. R., Bulut judgment of 22 February 1996, Reports

1996);

- the Government's letter of 24 April 1996 and the applicant's

letter of 17 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, born in 1953, is an Austrian national resident in

Lustenau. In the proceedings before the Commission he is represented

by Mr. W. Weh, a lawyer practising in Bregenz.

A. The particular circumstances of the case

On 30 March 1989, in the late afternoon, a fire broke out on the

ground floor of a house belonging to the applicant, in which he was,

however, not living. It was extinguished by the fire-brigade. Fire

broke out a second time, again on the ground floor of the house, in the

evening of the same day and was again put out by the fire-brigade. In

the early hours of 2 April 1989 a fire, which had broken out in the

bed-room of the first floor, destroyed the house completely.

Subsequently, investigations concerning the suspicion of arson

were carried out by the Criminal Department of the Vorarlberg Regional

Police (Landesgendarmeriekommando). According to the applicant, police

officer F., when questioning his neighbours, told them that he, the

applicant, had suspected them of having set fire to his house. Six

months after the fire, the applicant, allegedly with the permission of

the Criminal Department demolished the ruins of his house, assuming

that there would be no criminal proceedings against him. On 19 December

1989 the applicant complained to the Vorarlberg Public Security

Authority (Sicherheitsdirektion) that the Criminal Department had not

informed the Public Prosecutor's Office (Staatsanwaltschaft) of the

proceedings.

On 15 October 1991 the Feldkirch Regional Court (Landesgericht)

convicted the applicant of arson (Brandstiftung) and attempted fraud

and sentenced him to eighteen months imprisonment, of which twelve

months were suspended on probation. In these and the following

proceedings the applicant was represented by counsel.

On 3 March 1992 the Supreme Court (Oberster Gerichtshof) quashed

this judgment and referred the case back for rehearing.

On 30 September 1992 the Feldkirch Regional Court, after having

held the trial on 24 August, 23 and 30 September 1992, again convicted

the applicant of arson and attempted fraud and sentenced him to

eighteen months' imprisonment, of which twelve months were suspended

on probation.

The Court found that the applicant had wilfully caused all three

fires himself and had subsequently requested payment from his insurance

company. He had spent the afternoon of 30 March 1989 in and around the

house with his then seven-year-old son and four-year-old nephew. He had

lit the fire in the kitchen on the ground-floor using petrol and had,

at the time the fire was detected, been in front of the house. After

the fire-brigade had extinguished the fire and ascertained that no

glowing ashes were left, the applicant had remained in the house for

a few minutes. He had again used petrol to set the kitchen on the

ground floor afire. On 1 April 1989, in the evening, the applicant came

to the house alone and set fire to the first floor. He had left between

8 and 8.30 p.m., while the fire had been discovered on 2 April 1989

around 1.30 a.m. On 4 April 1989 he had requested payment from his

insurance company, stating that the fire had probably been caused by

the children.

In establishing the facts the Regional Court referred in

particular to the applicant's own statements and to the opinions of

four fire experts. It dismissed the applicant's defence that the first

fire had probably been caused by the children and the second fire had

originated from the burning embers, as according to the expert opinions

they had been lit with the help of petrol. As regards the third fire,

it dismissed the applicant's defence that the fire could have been

caused by a third person, e.g. a squatter. It found in particular that

the applicant, according to his own statements, had been in the house

on 1 April 1989 until 8 or 8.30 p.m. Moreover, the fire expert L.,

whose opinion had been ordered in the second set of proceedings, had

convincingly explained the contradictions in the opinions of the other

experts as regards the delay between the time when the applicant left

the house and the time the fire broke out fully and was detected.

The Court further observed that it had not taken into account

the statements of the applicant's neighbours as regards his behaviour

at the relevant time, as these did not tend to support any particular

conclusion. Finally, the Court found that the statement, which the

applicant's then eleven-year-old son had made as a witness at the trial

on 30 September 1992, was not credible. He had made it more rapidly and

accurately than could normally be expected more than three years after

the incident at issue. Moreover, his statement differed from what he

had said three years ago, when he had been heard by the investigating

police officers. Thus, the alibi which he tried to provide for his

father was in no way credible.

Subsequently, the applicant filed a plea of nullity (Nichtig-

keitsbeschwerde) and an appeal against sentence (Berufung) with the

Supreme Court.

In his plea of nullity under S. 281 para. 1 (4) of the Code of

Criminal Procedure (Strafprozeßordnung) he submitted in particular that

the rejection of his requests for the taking of evidence, which he had

made at the trial, had violated his defence rights. He referred inter

alia to his request that his son be heard by a child psychologist. He

argued that the latter would have proved the credibility of his son's

statement. Under S. 281 para. 1 (5) of the Code of Criminal Procedure,

he alleged that some findings of the Regional Court could not be based

on the evidence in the file and that the Regional Court's judgment did

not contain sufficient reasons for its conclusion that he had lit the

third fire. He also pointed out that the expert opinions were

contradictory as regards the way in which the third fire was caused.

Under S. 281 para. 1 (5a) he referred to the entirety of his

submissions made under subparagraph (5). In addition he referred inter

alia to the statements, which several neighbours had made at the trial,

i.e. that they had been told by police officer F. that the applicant

suspected them of having set fire to his house. In view of this fact

it was not surprising that they had found that his conduct at the

relevant time was suspicious.

On 6 April 1993 the Supreme Court, sitting in private, dismissed

the applicant's plea of nullity.

As regards the applicant's complaint under S. 281 para. 1 (4) of

the Code of Criminal Procedure, relating to the rejection of his

numerous requests for the taking of evidence, the Supreme Court found

that they were an attempt to challenge the assessment of the evidence

made by the judges of fact and were as such inadmissible. In particular

his request for an expert opinion of a child psychologist failed to

recognize that the assessment of the evidence was for the judges of

fact. They would only order such an expert opinion if they considered

it necessary in view of the particular personality of the child, e.g.

if he was mentally retarded. Further, as regards the applicant's

complaint under S. 281 para. 1 (5) of the Code of Criminal Procedure,

the Court found that he had failed to show that the establishment of

the facts was contrary to the file. He had mostly claimed that the

evidence referred to did not support the conclusions drawn by the

judges and had thus, again tried to challenge the assessment of the

evidence. However, the Regional Court had rejected his defence in a

convincing manner, taking all the evidence before it into account.

Finally the Supreme Court noted with regard to the applicant's

complaint under S. 281 para. 1 (5a), that there was no indication in

the file that the findings of fact on which the Regional Court had

based his conviction were wrong.

Finally, the Supreme Court remitted the question of the

applicant's appeal against sentence to the Innsbruck Court of Appeal

(Oberlandesgericht).

On 19 April 1993 the Review Chamber (Ratskammer) at the Feldkirch

Regional Court dismissed the applicant's request to open preliminary

investigations against police officer F. The applicant had filed a

criminal information with the Feldkirch Public Prosecutor's Office,

alleging that police officer F. had made a false statement in court.

He had quoted statements made by several of his neighbours as witnesses

in court to the effect that, according to police officer F., the

applicant had suspected them of having committed the arson at issue.

However, F. had denied that he had done so.

On 9 June 1993 the Innsbruck Court of Appeal dismissed the

applicant's appeal.

B. Relevant domestic law

Section 281 para. 1 of the Code of Criminal Procedure

(Strafprozeßordung) lays down the specific circumstances in which a

plea of nullity may be made. These include, so far as relevant:

" ...

4. if during the trial no decision is given on an application

by the appellant, or, in an interlocutory decision rejecting an

application or objection by him, the court disregards or

incorrectly applies laws or rules of procedure with which

compliance is required by the very nature of a procedure which

affords safeguards to the prosecution and the defence;

5. if the judgment of the trial court in respect of decisive

facts is unclear, incomplete or self-contradictory ...;

5a. if considerable doubts on the correctness of the decisive

facts on which the decision on the question of guilt is based,

arise from the file".

Section 285a para. 2 of the Code of Criminal Procedure provides:

"The Court of first instance at which a plea of nullity against

the final judgment has been lodged must reject this plea:

2. if on the giving of notice of the plea of nullity or its

presentation one of the grounds of nullity as mentioned in

Section 281 para. 1 (1 to 11) has not been indicated clearly, in

particular if the circumstances to which the ground of nullity

relates are not referred to expressly or at least by a clear

indication."

Section 285d para. 1 of the Code of Criminal Procedure provides:

"During the private deliberations, a plea of nullity may be

rejected immediately:

1. if it ought to have been rejected by the court at first

instance, pursuant to Article 285a ...

2. if it is based on the grounds of nullity enumerated in

Article 281 para. 1 (1 to 8 and 11) and if the Supreme Court

unanimously finds that the complaint should be dismissed as

manifestly ill-founded without any need for further

deliberation."

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that the criminal proceedings against him were unfair in several

respects.

a. He submits in particular that the Criminal Department of the

Vorarlberg Regional Police did not conduct the investigations properly

and did not inform the Public Prosecutor's Office of the proceedings.

Further he alleges that police officer F. unduly influenced some

witnesses, i.e. the neighbours by telling them that he, the applicant,

had suspected them of having set his house afire.

b. The applicant further complains that the Feldkirch Regional Court

rejected his request that his then eleven-year-old son be heard by a

child psychologist.

c. Finally, he complains that the Feldkirch Regional Court dismissed

his son's statement as not being credible without proper reasoning and

that the Supreme Court dismissed his plea of nullity, in particular the

complaints raised under S. 281 para. 1 (5a), without adequate

reasoning.

2. The applicant also complains under Article 6 para. 1 that the

Supreme Court did not hold an oral hearing on his plea of nullity,

although, under S. 281 para. 1 (5a) of the Code of Criminal Procedure,

it raised various questions of fact.

The applicant argues that the Austrian reservation to Article 6

of the Convention does not cover S. 281 para. 1 (5a) of the Code of

Criminal Procedure, as this provision was not in force at the time the

reservation was made. Eventually, he argues, that the said reservation

is incompatible with Article 64 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 November 1993 and registered

on 16 November 1993.

On 11 April 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure. At this stage the Commission did

not request the parties to comment on the admissibility and merits of

the application as it decided to await the outcome of the case of Bulut

v. Austria then pending before the European Court of Human Rights.

On 22 February 1996 the European Court of Human Rights gave its

judgment in the case of Bulut v. Austria.

On 26 March 1996 the Commission invited the parties to submit any

comments they wished to make in the light of the above judgment of the

European Court of Human Rights.

On 24 April 1996 the Government informed the Commission that it

did not intend to make any submission. On 17 May 1996, after an

extension of the time-limit, the applicant informed the Commission that

he wished to pursue the application.

THE LAW

1. The applicant complains under Article 6 (Art. 6) of the

Convention that the criminal proceedings against him were unfair in

several respects.

Article 6 (Art. 6), so far as relevant, reads as follows:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ..."

The Commission recalls that the Convention organs' task is to

ascertain whether the proceedings, considered as a whole, were fair

(Eur. Court H.R. Lüdi judgment of 15 June 1992, Series A no. 238,

p. 20, para. 43).

a. As regards the applicant's complaint that the Criminal Department

of the Vorarlberg Regional Police did not conduct the investigations

properly, the Commission finds that the applicant, insofar as he has

raised these complaints before the domestic authorities, has failed to

substantiate in what respect the alleged shortcomings have affected his

defence rights. As regards the applicant's allegation that police

officer F. unduly influenced some witnesses, the Commission notes in

particular that the Feldkirch Regional Court, in its judgment of

30 September 1992, explicitly observed that it had not taken the

neighbours' statements into account. The Commission, therefore, finds

that the alleged conduct of police officer F. was not decisive for the

fairness of the proceedings as a whole.

b. As regards the applicant's further complaints that the Feldkirch

Regional Court rejected his request that his son be heard by a child

psychologist and dismissed his son's statement as not being credible

without proper reasoning, the Commission recalls that the admissibility

of evidence is primarily governed by the rules of domestic law, and as

a general rule it is for the national courts to assess the evidence

before them (Lüdi judgment, loc. cit.)

In the present case, the Feldkirch Regional Court, on

30 September 1992, heard the applicant's then eleven-year-old son as

a witness. The Supreme Court dismissed the applicant's complaint about

the Regional Court's refusal to order an expert opinion on the

credibility of his son's statement, arguing that the judges of fact,

when assessing the evidence before them, are not obliged to consult an

expert unless they find particular reasons to do so. In these

circumstances, the Commission finds that the applicant failed to show

that the taking or assessment of evidence as regards his son's

statement were arbitrary and therefore contrary to the requirements of

a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

c. Moreover, the applicant complains that the Feldkirch Regional

Court dismissed his son's statement as not being credible without

proper reasoning and that the Supreme Court dismissed his plea of

nullity, in particular the complaints raised under S. 281 para. 1 (5a),

without adequate reasoning.

The Commission recalls that Article 6 para. 1 (Art. 6-1) obliges

the courts to give reasons for their judgments, but cannot be

understood as requiring a detailed answer to every argument (Eur. Court

H.R., Ruiz Torija judgment of 9 December 1994, Series A no. 303-A, p.

12, para. 29; Hiro Balani judgment of 9 December 1994, Series A no.

303-B, p. 29, para. 27). Moreover, the Convention organs are not called

upon to examine whether arguments are adequately met (see Eur. Court

H. R., Van de Hurk judgment of 19 April 1994, Series A no. 288, p. 20,

para. 61).

In the present case, the Feldkirch Regional Court, in its

judgment of 30 September 1992, found that the statement of the

applicant's son was not credible on the grounds that it differed from

what he had said earlier, and that he had made it very rapidly and

precisely, although more than three years had elapsed since the events

at issue. The Supreme Court, when dismissing the applicant's complaints

under S. 281 para. 1 (5a) of the Code of Criminal Procedure limited its

reasoning to the finding that there was no indication in the file that

the trial court's findings of fact were wrong. The Commission observes

that, under this heading, the applicant had referred to the entirety

of his submissions under S. 281 para. 1 (5), which the Supreme Court

had dismissed as an inadmissible attempt to challenge the trial court's

assessment of evidence. Further, he had complained with regard to his

neighbours' statements, which however, had not been taken into account

by the trial court.

In these circumstances, there is no indication that the Regional

Court or the Supreme Court failed to fulfil their obligation to state

reasons for their decisions.

In conclusion, the Commission finds that there is nothing in the

file to indicate that the applicant, represented by counsel, could not

duly present his defence or that the proceedings were otherwise unfair.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 6 para. 1 (Art. 6-1) that

the Supreme Court did not hold an oral hearing on his plea of nullity.

He submits in particular that, under S. 281 para. 1 (5a) of the Code

of Criminal Procedure, it raised various questions of fact.

The applicant argues that the Austrian reservation to Article 6

(Art. 6) of the Convention does not cover S. 281 para. 1 (5a) of the

Code of Criminal Procedure, as this provision was not in force at the

time the reservation was made. Eventually, he argues, that the said

reservation is incompatible with Article 64 (Art. 64) of the

Convention.

The Commission is not required to determine the questions raised

by the applicant concerning the Austrian reservation in respect of

Article 6 of (Art. 6) the Convention, as the above part of the

application is inadmissible for the following reasons.

The Commission recalls that the manner of application of

Article 6 (Art. 6) to proceedings before appellate courts depends on

the special features of the proceedings involved; account must be taken

of the entirety of the proceedings in the domestic legal order and of

the role of the appellate court therein (Eur. Court H.R., Kerojärvi,

judgment of 19 July 1995, para. 40, Series A no. 322, with further

references). Provided that there has been a public hearing at first

instance, the absence of "public hearings" at a second or third

instance may be justified by the special features of the proceedings

at issue. Thus proceedings for leave to appeal or proceedings involving

only questions of law, as opposed to questions of fact, may comply with

the requirements of being heard in person by the appeal or cassation

court (Eur. Court H.R., Monell and Morris judgment of 2 March 1987,

Series A no. 115, p. 22, para. 58).

In the present case, a public hearing was held at first instance,

namely before the Feldkirch Regional Court. The applicant filed a plea

of nullity with the Supreme Court, which was based on S. 285 para. 1

(4), (5) and (5a) of the Code of Criminal Procedure. The Supreme Court

rejected his plea of nullity, sitting in private, which according to

S. 285 (d) para. 1 subparas. 1 and 2 of the Code of Criminal Procedure

is permissible if the plea of nullity already ought to have been

rejected by the court of first instance or if the Supreme Court

unanimously finds that a plea of nullity is manifestly ill-founded

without any need for further deliberation.

In the case of Bulut v. Austria, which also concerned the

rejection of a plea of nullity by the Supreme Court in proceedings

under Section 285d para. 1 of the Code of Criminal Procedure, the

European Court of Human Rights has found as follows:

"In the instant case, the Court notes that a public hearing was

held at first instance. It further notes that the Supreme Court

rejected Mr. Bulut's appeal pursuant to Article 285d para. 1 of

the Code of Criminal Procedure ... Under this provision the

Supreme Court, in summary proceedings, may refuse further

consideration of an appeal which it unanimously regards as

manifestly lacking any merit. The nature of the review can

therefore be compared to that of proceedings for leave to appeal.

Moreover, the Court is not satisfied that the grounds of nullity

under Article 281 para. 1 (4) and (5) if the Code of Criminal

Procedure, as formulated by the applicant ..., raised questions

of fact bearing on the assessment of the applicant's guilt or

innocence that would have necessitated a hearing. They

essentially challenged the trial court's assessment of the

available evidence, a challenge which the Supreme Court

considered inadmissible" (Eur. Court H.R., Bulut judgment of

22 February 1996, para. 42, Reports 1996).

The Commission finds that the above reasoning also applies to the

present case. Therefore, there is no appearance of a violation of the

applicant's rights under Article 6 para. 1 (Art. 6-1) of the Convention

because of the lack of a hearing before the Supreme Court.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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KÖNIG v. AUSTRIA

KÖNIG v. AUSTRIA

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