Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20953/92 Application no. 21049/92

by Robert LORICH by Gerhard LORICH

against Austria against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 applications introduced on 8 September 1992

by Robert and Gerhard Lorich against Austria and registered on

16 November and 9 December 1992 respectively under file Nos. 20953/92

and 21049/92;

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 applicants are cousins and both Austrian citizens who are

presently detained in prison in Graz-Karlau. Robert Lorich was born

in 1965 and Gerhard Lorich in 1962. They are both represented by

Mr. F. Insam a lawyer practising in Graz who also defended them in the

domestic proceedings.

It follows from their statements and the documents submitted that

both applicants were convicted on 12 November 1991 by unanimous verdict

of a jury (Geschworene) at the Graz Regional Court (Landesgericht) of

having committed together on 20 October 1990 an armed robbery (schwerer

Raub). They were sentenced to 9 years (Gerhard Lorich) and 10 years

(Robert Lorich) imprisonment respectively. Gerhard Lorich who was in

detention remand since 25 June 1991 was given credit for the period

which he had spent in detention pending trial.

It follows from the trial record of 11 and 12 November 1991 that

the applicants had been incriminated by one H.S., an accomplice who was

at the relevant time suspected of being a receiver (Hehler). H.S. had

travelled with the applicants to Hamburg shortly after the crime had

been committed and had pledged a gold ring, which was part of the

stolen property, in a Hamburg pawnshop. H.S. had stated during the

investigations that he had received the ring from the applicants.

Another witness, Mrs. W.D., a prostitute, and former friend of Robert

Lorich gave evidence to the effect that a pump-gun used at the robbery

had been lent to the applicants by her father. She also stated that

she had provided the applicants with gloves and a hood corresponding

to those which the authors of the crime had worn. Furthermore she

stated that the day after the crime had been committed both applicants

had bought new clothes and that she had found in the room which she

shared with Robert Lorich a jewellery bag containing inter alia, a

man's gold pocket watch carved with initials, which she no longer

recalled. (The watch was identified as being part of the stolen

property. It belonged to a friend of the victim and the initials

corresponded to his name). The victim of the robbery stated, as

witness, that she could not identify the applicants on sight as they

had been masked but her description of the difference in size of the

two robbers corresponded to that of the applicants. She also stated

that at a test (Hörprobe) made during the investigation proceedings

when she was asked to listen to several voices, she clearly identified

one of the applicant's voices as belonging to the robber who had spoken

to her and who had ordered her to hand over the key to her safe.

The victim stated at the trial that she maintained her prior

deposition and underlined that at the time of the robbery she fully

concentrated on the voice as there was no other possibility to identify

the robbers later. She insisted that among a hundred voices she would

always recognise the robber's voice. The victim also recognised the

aforementioned pump-gun as the weapon used by the robbers. Another

witness, one W.R., stated that the applicant, Robert Lorich, had tried

to sell him jewellery, inter alia, a gold pocket watch.

Other witnesses gave further evidence which was considered to be

corroborating.

A police officer, H., stated as witness that subsequent to the

robbery the applicant Robert Lorich had called on him in his office to

inform him that a certain "Peter" had offered to sell him jewellery.

The precise description which this applicant gave of the jewellery made

it likely that it was that which been stolen on 20 October 1990.

Another police officer, Sw., stated as witness that he had

interrogated H.S. who told him that the applicants had carried out the

robbery and that he had received the stolen property from them. H.S.

told this officer also that he was not prepared to confirm this

statement in writing or at a court hearing. Sw. further told the court

that H.S. himself had a valid alibi in respect of the time when the

robbery was carried out.

A further officer, F., likewise stated when heard as witness that

he was present when H.S. mentioned that everybody in Graz knew that the

applicants had committed the robbery. He, H.S., would however have to

leave Graz if he signed a deposition incriminating the applicants.

The defense thereupon requested that H.S. be heard as witness by

the trial court. The court granted this request and suspended the

hearing from 16.20 to 17.00 hrs. in order to have H.S. brought to the

court by the police witnesses. As H.S. could not be found the hearing

was adjourned to the following day. However, the police was still

unable to find H.S. A visit effected by the police at an address

indicated by the defense was to no avail.

The trial court noted that H.S. was being prosecuted against, in

separate proceedings, on the charge of receiving stolen goods

(Hehlerei) and had been released from detention on remand the day

before.

The defense then objected to the reading out of the police

protocol on H.S.'s statements and complained that the trial court had

failed to see to it that H.S. was present as witness.

The taking of evidence was terminated on 12 November 1991 at

about 18.00 hrs. The protocols concerning H.S.'s depositions before

the police had not been read out.

Subsequently the court elaborated in camera the questions to be

put to the jury. They were discussed with the parties and partly

amended. Then the jury started its deliberations following a summing

up (Rechtsbelehrung) given to them by the presiding judge. The

indictment and court files were placed at the jury's disposal. The

verdict was pronounced in the late evening.

The applicants lodged a plea of nullity (Nichtigkeitsbeschwerde)

and an appeal against conviction (Berufung).

On 10 March 1992 the Supreme Court (Oberster Gerichtshof)

rejected both remedies as being unfounded.

Insofar as the applicants had complained that the pre-trial

statements of the supposed accomplice, H.S., had been made available

to the jury although they had not been read out at the trial the

Supreme Court found that the statements in question had been referred

to and discussed with the defendants when they were heard personally.

Thus they had been introduced into the trial and their being made

available to the jury did not violate any procedural guarantees. The

Supreme Court further stated that it had been impossible to hear H.S.

as a witness as he had been released from prison shortly before the

trial and his whereabouts were unknown. Attempts to have him brought

to the court by the police failed. Insofar as the applicants had

complained that their requests to take evidence on the length of their

stay in Hamburg had been rejected, the Supreme Court pointed out that

the hotel list had been checked by the police and that in any event it

was irrelevant whether or not the applicants had stayed one more night

in that city. All other complaints made by the applicants were

likewise considered to be unfounded.

COMPLAINTS

The applicants submit that they did not have a fair trial. They

mainly complain that H.S. who incriminated them when he was heard by

the police as co-accused had an interest in incriminating them.

Therefore he should have been heard in their presence so that they

could have put questions to this witness. They contest that H.S. was

not available for the trial hearing. They further consider that the

evidence against them was insufficient and did not justify their

conviction. They invoke a violation of Article 6 paras. 1 and 3 (d)

of the Convention.

THE LAW

In view of the similarity of the applications, the Commission

finds it convenient to join the applications (Rule 35 of the

Commission's Rules of Procedure).

The applicants allege a violation of their right to a fair trial

as guaranteed by Article 6 (Art. 6) of the Convention mainly on the

ground that a co-accused, one H.S., who is being prosecuted in separate

proceedings as a receiver, was not heard as witness at their trial

although he had incriminated them when heard by the police at the pre-

trial investigations.

It has first to be pointed out that the admissibility of evidence

is a matter for regulation by national law and, as a rule, it is for

the national courts to assess the evidence before them. The task of

the Convention organs is to ascertain whether the domestic proceedings

considered as a whole, including the way in which evidence was taken,

were fair. This is the fundamental point at issue and since the

guarantees in paragraph 3 of Article 6 (Art. 6-3) are specific aspects

of the right to a fair trial set forth in para. 1, the Commission has

to consider the complaint under the two provisions taken together (see

Eur. Court H.R., Isgrò judgment of 19 February 1991, Series A no. 194,

p. 11 para. 31).

In the present case it is undisputed that the trial was

interrupted and eventually postponed until the following day in order

to have the police search for H.S. whose whereabouts were unknown.

There is consequently no doubt that a serious attempt was made to

secure his attendance in court as a witness.

The Commission also notes that the protocols relating to H.S.'s

statements made before the police were not read out as evidence at the

trial. The policemen who had interrogated H.S. as a suspect had stated

as witnesses that while H.S. mentioned the applicants to be the robbers

he refused to sign a paper by which he would incriminate them. On the

other hand the Commission notes that according to the trial record

extensive evidence was produced at the trial in the presence of the

accused and subject to adversarial argument. The victim of the robbery

stated that she clearly identified the voice of one of the two accused

and she identified the weapon used by the robbers. This weapon had

according to the evidence given by Mrs. W.D. been lent to the

applicants by her father. W.D. also stated that shortly after the

robbery she found a jewellery bag in the possession of the applicant

Robert Lorich which inter alia contained a man's gold pocket watch

carved with initials which she could no longer recall. Other witnesses

gave further corroborating evidence against the applicants.

It can in these circumstances not be found that the applicants'

conviction is either based on insufficient evidence or on evidence

other than that obtained in a public hearing at the trial and with

regard to which the applicants had adequate and proper opportunity to

challenge and question the various witnesses heard by the court.

There is consequently no appearance of a violation of Article 6

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

that the applications have to be rejected as being manifestly ill-

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

Convention.

For these reasons, the Commission unanimously

DECIDES TO JOIN THE TWO APPLICATIONS, AND

DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

Menu

LORICH v. AUSTRIA

LORICH v. AUSTRIA

LEXI