Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22342/93

by Erol DÜR

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 17 June 1993 by

Erol DÃœR against Austria and registered on 26 July 1993 under file No.

22342/93;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 23 January 1995 and the observations in reply submitted

by the applicant on 17 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national born in 1964 and residing in

Vienna. Before the Commission he is represented by Mr. H. Pochieser,

a lawyer practising in Vienna.

The facts, as they have been submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the case

On 21 November 1991 the chief of the Deutsch Wagram Police

Station (Postenkommandant) laid a criminal information against the

applicant and his brother I. with the Korneuburg Public Prosecutor's

Office (Staatsanwaltschaft). According to the criminal information,

on 21 November 1991, at 5.20 hours, the applicant's brother had tried

to resist his arrest, which had been ordered with a view to his

deportation to Turkey, by hitting and kicking the police officers

concerned. The applicant had also resisted public authority in that

he too had attacked the police officers. The applicant and his brother

had finally been arrested. The applicant's brother had then been

brought to the airport and at 9.30 hours had been handed over to the

airport police for deportation. At about 11.30 hours the detention

order (Schubhaftbescheid) had been served on counsel for the

applicant's brother. The deportation had taken place at 13.15 hours.

The applicant himself had been released at 11.30 hours. The Public

Prosecutor, who had been informed of the events by telephone, had made

no objections to the deportation of the applicant's brother, as he

found that any possible criminal prosecution could be taken over by the

Turkish authorities.

On 26 November 1991 the Korneuburg Public Prosecutor filed a bill

of indictment against the applicant charging him with attempted

resistance to public authority (versuchter Widerstand gegen die

Staatsgewalt). The Public Prosecutor requested that the five police

officers concerned and the applicant's brother be heard as witnesses

at the trial.

On 17 January 1992 the applicant, who was then assisted by

counsel, requested that his brother and A.T., who had been present at

the events on 21 November 1991, be heard as witnesses.

On 23 March 1992 the trial (Hauptverhandlung) of the applicant

took place before the Korneuburg Regional Court (Kreisgericht). In the

course of the trial the Regional Court heard the five police officers

and A. T. as witnesses. As regards the events in the morning of

21 November 1991, A.T. stated that after the police officers had

arrived he had left to make a telephone call. On his return he had told

the applicant, who had a heated discussion with the police officers,

to calm down and had then started to prepare breakfast. He had not

paid attention to what was going on around him. The applicant's

counsel requested again that the applicant's brother be heard as a

witness. This request was refused by the Regional Court, which found

that, since he had been deported to Turkey, he had to be considered as

an unavailable means of proof.

On the same day the Regional Court convicted the applicant of

attempted resistance to public authority and sentenced him to four

months' imprisonment suspended for a probationary period of three

years. The Regional Court, having regard to the evidence taken, found

that the applicant had hit and kicked the police officers who carried

out his brother's and his own arrest. The arrest had initially been

carried out by two police officers, who, in view of the resistance, had

called for reinforcement. Subsequently three more police officers had

arrived and it had taken three police officers to break the applicant's

resistance and to carry out his arrest.

On 24 June 1992 the applicant introduced an appeal with the Court

of Appeal. He submitted that the Regional Court had wrongly refused

to hear his brother as a witness for the defence. He submitted further

that in the meantime his brother had introduced a complaint with the

Independent Administrative Panel (Unabhängiger Verwaltungssenat)

complaining that his arrest and deportation to Turkey had been

unlawful.

On 29 June 1992 the Lower Austrian Independent Administrative

Panel, upon the complaint by the applicant's brother about his arrest,

subsequent detention and deportation to Turkey, decided that the

applicant's brother's arrest on 21 November 1991 at 5.30 hours and his

detention until 11.30 hours, when the detention order was served on the

lawyer, had been unlawful and dismissed the remainder of the complaint.

The Administrative Panel found that, at the time of the arrest of the

applicant's brother, the order for detention with a view to his

deportation had not yet been served on the lawyer of the applicant's

brother. Therefore the arrest and the detention until 11.30 hours had

been unlawful. The subsequent detention and the deportation to Turkey,

however, had been based on a lawful and enforceable detention order and

on an enforceable residence prohibition.

On 25 August 1992 a hearing took place before the Court of Appeal

on the applicant's appeal, in the presence of the applicant and his

counsel. The applicant filed the decision of the Administrative Panel

of 29 June 1992.

On the same day the Court of Appeal dismissed the applicant's

appeal against his conviction but replaced the prison sentence by a

fine of 100 daily rates of 100 AS each.

The Court of Appeal found that the Regional Court had acted

correctly when refusing to hear the applicant's brother as a witness.

His brother was not a means of evidence available to the court as he

was in Turkey and a residence prohibition in Austria had been imposed

on him. Furthermore it noted that the public prosecutor had agreed to

the applicant's brother's deportation because he had found that any

possible criminal prosecution could be taken over by the Turkish

authorities.

The Court of Appeal had no doubts as to the Regional Court's

assessment of evidence, which it found sufficient in that, based on the

personal impression the witnesses had made on the Regional Court, it

had provided the main reasons for considering the witnesses credible,

and was in accordance with the principles of logic and the contents of

the file.

The Court of Appeal further found that the Administrative Panel's

decision of 29 June 1992 had no effect on the lawfulness of the

applicant's own arrest, which was not based on the detention order.

B. Relevant domestic law

Section 6 para. 1 of the Aliens Police Act (Fremdenpolizei-

gesetz), as in force at the relevant time, provides as follows:

[Translation]

"An alien on whom a residence prohibition has been imposed must

leave the area to which the prohibition applies within a week

after the decision has become legally effective. While the

prohibition is in force, he must not return to the area without

official permission."

[German]

"Der Fremde, gegen den ein Aufenthaltsverbot erlassen worden ist,

hat das Gebiet, in dem ihm der Aufenthalt verboten ist, innerhalb

einer Woche nach Rechtskraft des Bescheides zu verlassen. Er

darf dieses Gebiet während der Geltungsdauer des

Aufenthaltsverbotes ohne Bewilligung nicht wieder betreten."

COMPLAINTS

1. The applicant complains under Article 6 para. 1 and para. 3 (d)

of the Convention that the criminal proceedings conducted against him

were unfair. He submits that the Public Prosecutor had agreed to the

removal of his brother to Turkey, although he was the only important

witness for the defence. He was thus deprived of the most important

exonerating evidence because the Regional Court and the Court of Appeal

subsequently refused to summon this witness for the defence.

2. He further complains under Article 13 of the Convention that

Austrian law does not provide for a review by the Constitutional Court

of judgments of criminal courts as to their compliance with the

provisions of the Convention.

3. The applicant also complains under Article 2 of Protocol No. 7

to the Convention that the Court of Appeal did not repeat the taking

of evidence but simply confirmed the findings of the Regional Court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 June 1993 and registered on

26 July 1993.

On 12 October 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

23 January 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 17 March 1995.

THE LAW

1. The applicant complains under Article 6 para. 1 and para. 3 (d)

(Art. 6-1) of the Convention that the criminal proceedings conducted

against him were unfair because the Austrian courts refused to summon

his brother, who was able to provide the most important exonerating

evidence, as witness for the defence.

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

insofar as relevant, read as follows:

"1. In the determination of ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ... 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 ..."

The Government submit that according to the Convention organs'

case-law Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does not

grant an unlimited right to question or summon defence witnesses. The

trial court can refuse to hear witnesses if it finds that the

statements expected are not relevant to the establishment of the

truth. In the present case the Regional Court heard six witnesses,

including A.T., who had been called as witness for the defence. Not

even A.T. supported the applicant's defence according to which he had

not resisted the police officers and had remained calm throughout the

events. Rather, A.T. stated that at a certain moment he had told the

applicant to calm down. In these circumstances the Austrian courts

could reasonably have concluded that the statements of the applicant's

brother would have been irrelevant to the case.

Furthermore the Austrian courts had found correctly that the

applicant's brother did not offer an available means of evidence. The

courts could have asked the Turkish authorities to question the

applicant's brother under letters rogatory, but since the courts would

not have got a direct impression of the witness and such proceedings

were very lengthy this would not have been a very effective means of

gathering evidence. Moreover, the Austrian courts were unable to

summon the applicant's brother to appear at the trial because a

residence prohibition had been imposed on him. The courts were not

competent to lift the residence prohibition nor could they formally

request the competent administrative authorities to issue a permission

under Section 6 para. 1 in fine of the Aliens Police Act to the

applicant's brother allowing him to re-enter Austria.

The applicant submits that the Regional Court heard as witnesses

only several police officers and A.T., who, according to his statement,

did not himself see the events or could not remember them. Therefore

his brother was the only eye witness who could have exonerated him.

The Regional Court also did not consider the statements of his brother

to be irrelevant for the proceedings. It only found that this witness

was unobtainable, which, however, was not correct.

For the reasons given by the Government it would not have been

very helpful to have his brother questioned in Turkey under letters

rogatory. However the Austrian courts could have summoned his brother

to appear at the trial. In this respect the Government's description

of the legal situation under Section 6 para. 1 of the Aliens Police Act

is misleading. It is true that the courts themselves could not have

granted permission to the applicant's brother to return to Austria nor

could they have requested the administrative authorities to issue a

permission under Section 6 para. 1 of the Aliens Police Act to the

applicant's brother. However, if the Austrian courts had summoned the

applicant's brother, he could have requested the administrative

authorities to grant him a permission to re-enter Austria under Section

6 para. 1 of the Aliens Police Act. According to this provision a

person on whom a residence prohibition has been imposed may be allowed

to re-enter Austria for a short stay if this is necessary in the

private or public interest. According to case-law of the

Administrative Court the necessity to appear before a court is a valid

reason for applying for a permission under Section 6 para. 1 of the

Aliens Police Act.

The Commission finds that this complaint involves serious issues

of fact and law under the Convention, the determination of which must

be reserved to an examination of the merits. This part of the

application cannot therefore be declared manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, no

other ground for declaring it inadmissible having been established.

2. The applicant complains under Article 13 (Art. 13) of the

Convention that Austrian law does not provide for a review by the

Constitutional Court of judgments of criminal courts as to their

compliance with the provisions of the Convention.

The Commission notes that Austrian law provides a remedy in

criminal proceedings, namely a right of appeal to the Court of Appeal,

which the applicant pursued in the present case. In these circumstances

the Commission considers that Article 13 (Art. 13) cannot be

interpreted as requiring the provision of a further remedy by way of

review by the Constitutional Court.

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.

3. The applicant finally complains that the Court of Appeal did not

repeat the taking of evidence but simply confirmed the findings of the

Regional Court. He relies on Article 2 of Protocol No. 7 (P7-2),

which, insofar as relevant, reads as follows:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence reviewed

by a higher tribunal. The exercise of this right, including the

grounds on which it may be exercised, shall be governed by law."

The Commission observes, however, that the Court of Appeal, after

a public hearing, dismissed the applicant's appeal as regards his

conviction, but amended the sentence. The Court of Appeal did not take

any further evidence, which in fact it could have done, because it had

no doubts as to the Regional Court's assessment of evidence.

In such circumstances the Commission finds that there is no

appearance of a violation of the applicant's right to review of his

conviction or sentence by a higher tribunal as guaranteed by Article

2 of Protocol No. 7 (P7-2).

It follows that also this part of the application is manifestly

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

Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint about the alleged unfairness of the

criminal proceedings conducted against him;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

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

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DÜR v. AUSTRIA

DÜR v. AUSTRIA

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