Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25494/94

by Werner PUTZ

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, 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. MARXER

G.B. REFFI

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 7 September 1994

by Werner PUTZ against Austria and registered on 26 October 1994 under

file No. 25494/94;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant, born in 1961, is an Austrian national. When

lodging his application he was detained at a prison in Hollabrunn. In

the proceedings before the Commission he is represented by

Mr. K. Bernhauser, a lawyer practising in Vienna.

On 22 October 1993 the Court of Assizes (Geschworenengericht) of

the Vienna Regional Court (Landesgericht), sitting with a jury,

convicted the applicant of aggravated rape and rape and further sexual

offences by intimidation or coercion as well as of deprivation of

liberty, all offences on several counts, and also of having resisted

a public officer in the exercise of this duties. The applicant was

acquitted of the charges of theft. He was sentenced to seven years'

imprisonment.

As regards the above offences the Court of Assizes established

the following facts.

On 9 January 1993 the applicant had raped the prostitute Ms. S.

in Vienna, using violence and intimidating her with an electro-shock

device. At the end of November or beginning of December 1992 he had

raped the prostitute Ms. B. in Salzburg, using violence and threatening

her with murder and keeping her detained in his car for about four

hours; and that he had raped her again on 20 December 1992, threatening

her with murder and using violence as well as keeping her detained in

his car for four and a half hours.

On 21 December 1992 he had raped the prostitute Ms. L. in

Salzburg, using again an electro-shock device. At the beginning of

November 1992 he had raped the prostitute Ms. B. in Salzburg,

threatening her with murder and keeping her detained in his car for

about three hours.

In mid-december 1992 he had forced Ms. Y. in Salzburg to perform

indecent acts, using violence and threatening her with murder, and kept

her detained for about six and a half hours.

He had further committed coercion on various counts. On

9 January 1993 he had forced the prostitute Ms. S. in Vienna to perform

various acts, using violence, in particular an electro-shock device,

and threatening her with murder. At the end of November or beginning

of December 1992, he had forced the prostitute Ms. B. in Salzburg to

act against her will, threatening her with murder and using violence.

In mid-december he had intimidated Ms. Y. and forced her to act against

her will. On 21 December 1992 he had forced the prostitute Ms. L. to

perform acts against her will.

Furthermore, on 9 January 1993 the applicant had accelerated his

car and driven towards the Police Officer Sch. who had given signs to

stop the applicant. The Police Officer had to jump aside in order not

to be run over.

In these and the ensuing proceedings the applicant was assisted

by defence counsel.

On 5 May 1994 the Austrian Supreme Court (Oberste Gerichtshof)

dismissed the applicant's plea of nullity (Nichtigkeitsbeschwerde).

Upon the appeal of the Prosecutor's Office (Staatsanwaltschaft), it

increased the sentence to nine years' imprisonment and referred the

applicant to this decision in respect of his appeal against sentence.

The Supreme Court considered in particular that, in respect of

the conviction of aggravated rape, the Court of Assizes had correctly

qualified the applicant's conduct as grave violence. Contrary to the

applicant's submissions, "grave violence" was not limited to the use

of superior physical force which, in order to overcome the victim's

real or supposed resistance would reach a high degree of intensity or

dangerousness, but also extended to a continued resort to acts of

violence of a lower degree which, due to their continuation, had the

same effects. These conditions were met in the applicant's case, as

the victim had been tormented for a longer period of time.

Furthermore, intimidation did not necessarily require intimidating

statements, but a conduct could in itself be intimidating in the

particular circumstances. The Supreme Court also dismissed the

applicant's argument that the conviction of having committed

deprivation of liberty to the disadvantage of Ms. Y. did not prevent,

for legal reasons, his conviction of coercion regarding acts during the

deprivation of liberty. As regards his further complaints about

alleged legal errors, the Supreme Court found that the applicant had

failed to present them in due form.

In respect of the applicant's procedural complaints, the Supreme

Court found that the Court of Assizes had correctly refused the

applicant's request to take evidence on the question whether the use

of an electro-shock device could constitute grave violence.

Considering that the grave violence resulted from the continued resort

to acts of violence, the question of whether one of the acts concerned

constituted as such grave violence was irrelevant. His further

requests for an examination of his car were not conclusive and could

not call the credibility of the witness Ms. S. into question. In any

event, he had failed to specify at the trial that the requests in

question aimed at casting doubt upon the witness's credibility.

Moreover, the applicant had failed to show any reasons requiring the

taking of further expert evidence as to his criminal responsibility at

the time of the offences. In this respect, the Supreme Court noted

that the Court of Assizes, at the trial, had heard the opinions of a

psychiatric expert and of a psychological expert that there were no

indications that the applicant had lacked criminal responsibility at

the time of the offences. The Supreme Court also confirmed the Court

of Assizes refusal to take evidence as to the regular standing-place

of the prostitute Ms. B., finding that this matter was irrelevant. The

Supreme Court finally found that the applicant's further submissions

did not raise any substantial doubts as to the assessment of evidence

by the Court of Assizes.

Having regard to the seriousness of the crimes committed by the

applicant, the Supreme Court increased the sentence in accordance with

the appeal lodged by the Prosecutor's Office.

The decision was served on 30 May 1994.

COMPLAINTS

The applicant complains about his conviction by the Court of

Assizes of the Vienna Regional Court of 22 October 1993 and the alleged

unfairness of the court proceedings concerned. He considers in

particular that the Court of Assizes unduly dismissed his request to

take evidence on the question whether using the electro-shock device

concerned could be regarded as grave violence, whereby he had also

offered at the trial to demonstrate on himself the effects of the

device. The applicant invokes Article 6 para. 3 of the Convention.

THE LAW

The applicant complains about his conviction by the Court of

Assizes of the Vienna Regional Court of 22 October 1993, as confirmed

by the Supreme Court, and also of the court proceedings concerned.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77-B, pp. 81, 88 and

Eur. Court H.R., Van de Hurk judgment of 19 April 1994, Series A

no. 288, p. 20, para. 61; Klaas judgment of 22 September 1993, Series A

no. 269, p. 17, para. 29.

The applicant alleges a violation of Article 6 para. 3 (Art. 6-3)

of the Convention in that he did not have a fair trial, in particular

that the Court of Assizes refused his request to take evidence as to

the functioning of the electro-shock device used by him in the course

of his offences. His submissions about the conduct of the proceedings

relate in particular to the taking and assessment of evidence.

It seems appropriate to look at these complaints from the point

of view of paragraphs 1 and 3 of Article 6 (Art. 6-1, 6-3) taken

together, especially as the guarantees in paragraph 3 (Art. 6-3)

represent aspects of the concept of a fair trial contained in

paragraph 1 (Art. 6-1) (Eur. Court H.R., Unterpertinger judgment of

24 November 1986, Series A no. 110, p. 14, para. 29).

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

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

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

tribunal ...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

b. to have adequate time and facilities for the

preparation of his defence;

c. to defend himself in person or through legal

assistance ...

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 Commission recalls that as a general rule, it is for the

national courts to assess the evidence before them as well as the

relevance of the evidence which the defendants seek to adduce. More

specifically, Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them,

again as a general rule, to assess whether it is appropriate to call

witnesses, in the "autonomous" sense given to that word in the

Convention system; it does not require the attendance and examination

of every witness on the accused's behalf (cf., Eur. Court H.R.,

Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89;

Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33,

para. 33).

The Commission notes that the Court of Assizes, as confirmed by

the Supreme Court, regarded the taking of evidence requested by the

applicant as irrelevant in the light of their interpretation of the

relevant legal provision of aggravated rape, presupposing the use of

grave violence. The Supreme Court confirmed in particular the Court

of Assizes' interpretation that the term "grave violence" was not

limited to the use of superior physical force which, in order to

overcome the victim's real or supposed resistance would reach a high

degree of intensity or dangerousness, but also extended to a continued

resort to acts of violence of a lower degree which, due to their

continuation, had the same effects. According to the Court, these

conditions were met in the applicant's case, as the victim had been

tormented for a longer period of time. In these circumstances, the

Supreme Court found that the applicant's requests for the taking of

evidence on the question whether the use of an electro-shock device

could constitute grave violence had been correctly been dismissed as

irrelevant, given that the qualification as "grave violence" resulted

from the continued resort to acts of violence over a longer period of

time.

In these circumstances, the Commission finds no sufficient

grounds to form the view that there were any special circumstances in

the present case which could prompt the conclusion that the Court of

Assizes's taking of evidence, as confirmed by the Supreme Court, was

incompatible with Article 6 (Art. 6) of the Convention.

Moreover, having regard to the conduct of the proceedings against

the applicant as a whole, the Commission finds no other indication of

unfairness. In particular his submissions do not show that, assisted

by counsel, he could not duly present his arguments in defence or could

not effectively exercise his defence rights.

Accordingly, there is no appearance of a violation of Article 6

(Art. 6) of the Convention.

It follows that the application is manifestly ill-founded within

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

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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PUTZ v. AUSTRIA

PUTZ v. AUSTRIA

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