Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22542/93

by Abdul Kadir SATIR

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 25 January 1993

by Abdul Kadir SATIR against Austria and registered on 27 August 1993

under file No. 22542/93;

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 applicant is a Turkish citizen, born in 1931 and presently

detained in Krems (Austria).

A. The particular circumstances of the case

By a judgment of 3 October 1980 the Munich Regional Court

(Landgericht München I) convicted the applicant of drug trafficking and

sentenced him to seven years' and six months' imprisonment.

In 1990 the Austrian police obtained information from various

sources, in connection with preliminary investigations against two

Turkish citizens, indicating that the applicant was involved in drug

trafficking. In November 1990 the police intercepted and recorded the

applicant's telephone conversations. On 13 December 1990 the applicant

and 15 other Turkish nationals were arrested.

On 15 December 1990 the Salzburg Regional Court (Landesgericht)

ordered the applicant's detention on remand on the grounds set out in

Section 180 paras. 1 and 2 subparas. 1, 2 and 3 (a) of the Code of

Criminal Procedure (Strafprozeßordnung). Referring to the

investigations of the Salzburg police and the results of the telephone

tapping, the Regional Court considered that there was a strong

suspicion that the applicant was dealing with large quantities of

heroin. He was suspected in particular of having transferred the drugs

to Austria with the help of third persons. The applicant, who had

contacts abroad, had been convicted of similar offences and in the

present case important investigations had still to be carried out.

There was therefore also a danger of the applicant's absconding, of

collusion and of committing offences.

The applicant's appeal lodged on 27 December 1990 against this

decision was dismissed by the Linz Court of Appeal (Oberlandesgericht)

on 9 January 1991.

On 3 June 1991 the Public Prosecutor in Salzburg preferred an

indictement against the applicant and four other persons charging them

with drug offences.

On 25 and 26 September 1991 the trial took place before the

Salzburg Regional Court sitting with a jury (Schöffengericht), i.e. two

judges, one of them as presiding judge, and two lay assessors. The

applicant was assisted by defence counsel and an interpreter for the

Turkish language appointed by the Court.

By a judgment of 26 September 1991 the Salzburg Regional Court

convicted the applicant inter alia under the Drug Offences Act

(Suchtgiftgesetz) of having participated as a member of a criminal

association in smuggling heroin from Turkey via Austria to Germany and

sentenced him to 13 years' imprisonment. It further imposed a fine of

20 000 000 AS on him, respectively two months' imprisonment in case

of failure to pay the fine (Ersatzfreiheitsstrafe).

The Regional Court found that the applicant, as the manager of

a hotel and a travel agency near the Austrian-German border, assisted

the members of a well organised criminal organisation in smuggling

large quantities of heroin from Turkey to Germany. The judgment was

based on various items of evidence and testimony, namely the

declarations of members of the organisation who had been arrested in

Austria and Germany, the contents of the applicant's telephone

conversations with H.S., the head of the organisation, and the

applicant's efforts during his detention to incite a co-accused to

withdraw his confessions.

With regard to the sentence, the Regional Court considered as

mitigating circumstances the partial confiscation of circa 3 kg heroin

and the solely attempted importation of 16,9 g heroin, and as

aggravating circumstance, the applicant's previous conviction for drug

offences in Germany.

The applicant filed a plea of nullity (Nichtigkeitsbeschwerde)

with respect to his conviction and an appeal (Berufung) against the

sentence.

On 3 September 1992 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity and referred the applicant's

appeal for decision to the Linz Court of Appeal.

The Supreme Court accepted the Regional Court's reasoning for its

refusal to obtain the evidence requested by the applicant, who had

proposed to submit his passport in order to show that he had not been

several times in Bulgaria at the end of 1989 and the beginning of 1990.

The Supreme Court pointed out that this evidence was not relevant for

the determination of the charges against him and that the Regional

Court had not referred to any such visits. According to the Supreme

Court, the Regional Court had carefully examined the evidence and the

declarations of the co-accused and had taken into account certain

contradictions in their statements. There was no indication that the

Regional Court's conclusions were illogical or arbitrary.

By a judgment of 14 December 1992 the Linz Court of Appeal

dismissed the applicant's appeal. It considered in particular that the

Salzburg Regional Court had correctly assessed the mitigating and

aggravating circumstances. With regard to the increasing drug

criminality at international level and the dangerousness of trafficking

in hard drugs, the first instance court had pronounced an adequate

sentence taking duly into account the social disturbance caused and the

applicant's personal criminal responsibility. As to the fine, the Court

of Appeal found that the Regional Court had not misused its power of

assessment and that there was no ground for reducing the amount of the

fine.

B. Relevant domestic law

Section 113 para. 1 of the Code of Criminal Procedure provides

that a person claiming to be affected by decisions given or delays

caused by the investigation judge in the course of the preliminary

investigations is entitled to appeal to the Review Chamber

(Ratskammer).

Section 180 para. 1 of the Code of Criminal Procedure provides

that a person may only be taken in detention on remand if there is

strong suspicion against him of having committed a particular offence

and if one of the reasons laid down in paras. 1 or 2 is given.

According to paragraph 2 detention on remand may be ordered if there

is a danger of absconding (subpara. 1), a danger of collusion

(subpara. 2) or a danger that the suspect might commit offences

(subpara. 3).

COMPLAINTS

1. The applicant complains under Article 5 para. 1 c) of the

Convention that he was arrested without any reasonable suspicion

against him.

2. The applicant, who maintains to be innocent, complains also of

his conviction and sentence and the alleged unfairness of the

proceedings in several respects.

a) The applicant complains in particular that he was refused the

assistance of a defence counsel when being interrogated by the

investigating judge and that he was refused access to the court file

before the end of the trial.

b) He next complains that the Regional Court was not an impartial

tribunal established by law and that the judges have unduly influenced

the lay assessors. According to him, his case should have been

submitted to an assize court (Geschworenengericht) with fuller

guarantees of impartiality than a jury (Schöffengericht).

c) The applicant further complains that he was not presumed innocent

until proven guilty in accordance with the law, since from the

beginning the Regional Court has refused to obtain the evidence

requested by him and considered him as a drug addict. He invokes

Article 6 para. 2 of the Convention.

d) The applicant also complains under Article 6 para. 3 of the

Convention that his conviction was based on an erroneous assessment of

evidence. He submits in this context that the translation of the

reports of his telephone conversations was incorrect.

e) The applicant next complains that the court decisions have not

been notified to him in Turkish and that a co-accused acted as an

interpreter.

3. Under Article 7 of the Convention the applicant complains that

he was convicted and sentenced for his activity as an undercover agent

of the German authorities. These acts did not constitute criminal

offences.

4. The applicant further complains under Article 8 of the Convention

that the alleged illegal criminal proceedings against him constitute

a breach of the right to respect for his private and family life.

5. The applicant finally complains under Article 13 of the

Convention that there was no neutral and efficient control of

violations of the Convention and no effective remedy in Austria.

THE LAW

1. The applicant complains under Article 5 para. 1 c)

(Art. 5-1-c) of the Convention that his detention on remand was

unlawful in that there were no reasonable suspicions against him.

Article 5 para. 1 c) (Art. 5-1-c) reads as follows:

"Everyone has the right to liberty and security of person. No one

shall be deprived of his liberty save in the following cases and

in accordance with a procedure prescribed by law:

(...)

c. the lawful arrest or detention of a person effected for the

purpose of bringing him before the competent legal authority on

reasonable suspicion of having committed an offence or when it

is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so (...)"

The Commission recalls that the reasonable suspicion in Article 5

para. 1 c) (Art. 5-1-c) of the Convention does not mean that the

suspected person's guilt must at that stage be established and proven,

and it cannot be a condition for arrest and detention pending trial

that the commission of the offence with which the person concerned is

charged has been established. It is precisely the purpose of the

official investigation, which detention is intended to facilitate, to

prove the reality and nature of the offenses charged (see No. 8224/78,

Dec. 5.12.78, D.R. 15 p. 211; No. 9627/81, Dec. 14.3.84, D.R. 37 p. 15;

No. 10803/84, Dec. 16.12.87, D.R. 54 p. 35; Eur. Court H.R., Murray

judgment of 28 October 1994, Series A no. 300, para. 55).

In the present case the applicant was taken into detention on

remand by order of the Salzburg Regional Court of 15 December 1990 on

the strong suspicion of having committed drug offences. This suspicion

was largely based on the police investigations carried out and on the

results of the telephone tapping. The Commission notes that Section 180

para. 1 of the Austrian Code of Criminal Procedure allows to put a

person in detention on remand, if there is strong suspicion against him

of having committed an offence. Furthermore, the decision of the

Salzburg Regional Court was confirmed by the Linz Court of Appeal on

9 January 1991.

In conclusion, the Commission finds that the applicant was

lawfully detained and that there were reasonable grounds for suspecting

him of having committed an offence within the meaning of Article 5

para. 1 (c) (Art. 5-1-c).

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 further complains of his conviction and sentence.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that under Article 19 (Art. 19) of

the Convention its only task is to ensure the observance of the

obligations undertaken by the Parties to 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. The

Commission refers on this point to its established case-law (see, e.g.,

No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81, 82 and 88).

It is true that in the present case the applicant complains under

Article 6 (Art. 6) of the Convention also of the fairness of the

criminal proceedings which led to his conviction.

Article 6 (Art. 6) of the Convention provides, so far as relevant

to the present case, as follows:

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

against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law. ...

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the

following minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of

the accusation against him;

b. to have adequate time and facilities for the

preparation of his defence;

c. to defend himself in person or through legal

assistance of his own choosing or, if he has not

sufficient means to pay for legal assistance, to be

given it free when the interests of justice so

require;

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;

e. to have the free assistance of an interpreter if

he cannot understand or speak the language used in

court."

The applicant has referred not only to Article 6 para. 1

(Art. 6-1) of the Convention but also to paras. 2 and 3 of this

provision. In this respect the Commission recalls that the requirements

of para. 3 of Article 6 (Art. 6-3) are specific aspects of the general

concept of a fair hearing guaranteed in para. 1 of the same Article

(Art. 6-1) (cf., e.g., Eur. Court H.R., F.C.B. v. Italy judgment of

28 August 1991, Series A no. 208-B, p. 20, para. 29). The Commission

will therefore examine the applicant's complaints from the point of

view of these two provisions in conjunction.

a) The applicant submits that he had been questioned by the

investigating judge in the absence of a defence counsel and that he was

refused access to the file.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 6 (Art. 6) of the Convention as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

The Commission notes that the applicant has failed to raise in

an appeal to the Review Chamber (Ratskammer) of the Salzburg Regional

Court the above complaints in pursuance of Section 113 para. 1 of the

Code of Criminal procedure.

It follows that the applicant has not complied with the

requirement as to the exhaustion of domestic remedies contained in

Article 26 (Art. 26) of the Convention.

This part of the application must, therefore, be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

b) The applicant also complains that the professional judges at the

Regional Court have unduly influenced the lay assessors and that the

Regional Court sitting with a jury (Schöffengericht) was not an

impartial tribunal established by law. According to him, his case

should have been submitted to an assize court (Geschworenengericht).

Even assuming that the applicant has exhausted domestic remedies

in this respect as required by Article 26 (Art. 26) of the Convention,

the Commission recalls that the existence of impartiality for the

purposes of Article 6 para. 1 (Art. 6-1) must be determined according

to a subjective test, that is on the basis of the personal conviction

of a particular judge in a given case, and also according to an

objective test, that is ascertaining whether the judge offered

guarantees sufficient to exclude any legitimate doubt in this respect

(cf., inter alia, Eur. Court H.R., Padovani judgment of 26 February

1993, Series A no. 257-B, p. 20, para. 25).

As to the subjective test, the personal impartiality of a judge

must be presumed until there is proof to the contrary (Padovani

judgment, loc. cit., para. 26).

Under the objective test, it must be determined whether, quite

apart from the judge's personal conduct, there are ascertainable facts

which may raise doubts as to his impartiality. What is decisive are not

the subjective apprehensions of the suspect, however understandable,

but whether, in the particular circumstances of the case, his fears can

be held to be objectively justified (cf.,e.g.,Eur. Court H.R., Nortier

judgment of 24 August 1993, Series A no. 267, p. 15, para. 33).

However, the Commission finds that the applicant's complaints as

to the lack of impartiality of the judges in question or to the

competence of the Regional Court sitting with a jury have not been

substantiated. The Commission observes in particular that the applicant

has failed to show that the Regional Court sitting with a jury did not

meet the requirements as to a "tribunal established by law" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention. In the light

of this finding the Commission need not examine the applicant's

complaint that his case has not been submitted to an assize 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.

c) The applicant complains that he was not presumed innocent until

proven guilty in accordance with the law. He invokes Article 6 para. 2

(Art. 6-2) of the Convention.

The Commission recalls that the presumption of innocence will be

violated if, without the accused's having previously been proved guilty

according to law, a judicial decision concerning him reflects an

opinion that he is guilty (Eur. Court H.R., Barberà, Messegué and

Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 67

et seq.).

In the present case the applicant does not adduce any argument

which would indicate that the presumption of innocence was disregarded

in the proceedings at issue, other than the assessment of evidence made

by the Regional Court. It does not appear from the case-file that

during the proceedings the Regional Court, before finding the applicant

guilty on the basis of the evidence, took decisions reflecting the

opinion that the applicant had committed the acts which he was charged

with.

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.

d) The applicant complains that the assessment of evidence made

throughout the proceedings was arbitrary. He submits that he was

convicted on insufficient evidence, contrary to the principle that the

guilt must be firmly established.

The Commission recalls that it is primarily for the national

courts to assess the evidence before them. The Convention organs' task

is to ascertain whether the proceedings considered as a whole,

including the way in which evidence was taken, were fair (Eur. Court

H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,

para. 26).

In the present case there is no indication that the proceedings

were unfairly conducted or that the applicant, who was represented by

a lawyer, could not adduce any evidence which he regarded as being

pertinent or to put forward any argument he considered relevant. The

Supreme Court undertook a detailed analysis of the applicant's

complaints, addressing the issue of the assessment of evidence by the

first instance court. It concluded that the lower court had not

overstepped the limits of appreciation of evidence or established facts

in a arbitrary manner in excluding other hypotheses as to the

applicant's guilt. The Commission does not find these conclusions

arbitrary or otherwise unfair. Furthermore, according to the Supreme

Court, the evidence proposed by the applicant was irrelevant. The

Commission does not see how in these circumstances this evidence could

have assisted the applicant.

Accordingly, this part of the application does not disclose any

appearance of a violation of Article 6 para. 1 and Article 6 para. 3

(d) (Art. 6-1, 6-3-d) of the Convention. It follows that it is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

e) The applicant complains that the court decisions have not been

notified to him in Turkish and that a co-accused has acted as an

interpreter.

Even assuming the applicant has exhausted domestic remedies in

this respect, the Commission recalls that Article 6 para. 3 (e)

(Art. 6-3-e) of the Convention guarantees the assistance of an

interpreter if the person charged with a criminal offence "cannot

understand or speak the language used in court".

In the present case, it appears from the file that the applicant

has a good knowledge of the German language. The Commission further

notes that an interpreter for the Turkish language appointed by the

Salzburg Regional Court was present during his trial and that the

applicant was assisted by a German speaking defence counsel.

It follows that this part of the application is again manifestly

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

Convention.

3. The applicant complains under Article 7 (Art. 7) of the

Convention that he was acting as an undercover agent for the German

authorities and that the charges brought against him did therefore not

constitute criminal offences.

Article 7 (Art. 7) of the Convention provides as follows:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the time

when it was committed. Nor shall a heavier penalty be imposed

than the one that was applicable at the time the criminal offence

was committed."

However, the Commission recalls that under the terms of

Article 26 (Art. 26) of the Convention, it may only deal with a matter

after all domestic remedies have been exhausted, according to the

generally recognised rules of international law. This condition is not

met by the mere fact that an applicant has submitted his case to the

various competent courts. It recalls that domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention have only been

exhausted if, before the highest domestic body, the applicant has

submitted, at least in substance, his complaint he puts before the

Commission, even without particular reference to the Convention (cf.,

e.g., No. 6861/75, Dec. 14.7.75, D.R. 3 p. 147; Nos. 5573/72 and

5670/72, Dec. 16.7.76, D.R. 7 p. 8; No. 7299/75 and 7496/76, Dec.

4.12.79, D.R. 18 p. 5; No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63).

In this case the applicant failed to raise the issues mentioned

above in his plea of nullity before the Supreme Court. Furthermore, an

examination of the case does not disclose the existence of any special

circumstances which might have absolved the applicant, according to the

generally recognised rules of international law, from raising his

complaints in the proceedings referred to.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must accordingly be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

4. The applicant further alleges that as a result of the criminal

proceedings his right to respect for his private life as guaranteed by

Article 8 para. 1 (Art. 8-1) of the Convention was violated.

However, the Commission finds that, to the extent that these

proceedings constituted an interference with the applicant's right to

respect for private life, this interference was justified as being

necessary for the prevention of crime which was the principal aim of

the aforesaid proceedings.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

5. The applicant also invokes Article 13 (Art. 13) of the

Convention, which provides that:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

Insofar as the applicant's complaints could raise an issue of

inadequate review procedure for his detention on remand, the Commission

finds that the absence of any remedy falls rather to be dealt with

under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) which form the lex

specialis for complaints under the provisions of Article 5 (Art. 5).

However, the applicant does not adduce any argument which would

indicate that these provisions were disregarded in the present case.

Insofar as issues may arise under Article 6 (Art. 6) of the

Convention with regard to the criminal proceedings brought against the

applicant, the Commission recalls that the requirements of Article 13

(Art. 13) of the Convention are less strict than, and accordingly

absorbed by Article 6 (Art. 6) of the Convention (see Eur. Court H.R.,

Philis judgment of 27 August 1991, Series A no. 209, p. 23, para. 67).

It follows that no separate issue arises under Article 13 (Art. 13) of

the Convention.

Moreover, insofar as the applicant complains of the judgment of

the Salzburg Regional Court, the Commission finds that he had the

possibility of appealing to the Supreme Court, an appellate body with

jurisdiction to quash or modify the orders of the lower courts. There

is no indication on the facts as presented in this case that this

avenue of appeal is not an effective remedy for the purposes of

Article 13 (Art. 13) of the Convention.

It follows that this complaint must be dismissed as 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) (L. ROZAKIS)

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SATIR v. AUSTRIA

SATIR v. AUSTRIA

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