Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19795/92

by H. G.

against Austria

The European Commission of Human Rights (First Chamber)

sitting in private on 7 April 1994, the following members being

present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 27 January

1992 by H. G. against Austria and registered on 3 April 1992

under file No. 19795/92;

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

Rules of Procedure of the Commission;

Having regard to the observations submitted by the

respondent Government on 4 February 1993 and the observations in

reply submitted by the applicant on 1 April 1993;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant, born in 1958, is an Austrian national and

resident at Haugsdorf. He is a veterinary surgeon by profession.

Before the Commission he is represented by Mr. E. Mack, a lawyer

practising at Korneuburg.

In January 1988 the Lower Austria Regional Government

(Landes-regierung) appointed the applicant as meat inspector

responsible in an area of six municipalities.

In July 1988 preliminary investigations were opened against

the applicant on the suspicion of having wrongly affirmed the

adequate quality of a pig after a forced slaughter on 25 June

1988, and neither ordered, as would have been required after

forced slaughters, a bacteriological examination, nor informed

the competent authorities thereof. In these proceedings, the

applicant was assisted by defence counsel, namely Mr. Mack.

On 28 July and 31 October 1988 the applicant was questioned

by the police authorities, and, on 20 December 1989, by the

Investigating Judge at the Korneuburg Regional Court

(Kreisgericht). The applicant stated that, in the course of the

examination on 25 June 1988 concerning altogether 125 pigs and

6 piglets, he had not observed any anomalies. He further

indicated that normally between 100 and 150 animals were

slaughtered on one occasion, and that he received a payment of

AS 10 per animal which he examined.

On 28 March 1990 the Korneuburg Public Prosecutor's Office

(Staatsanwaltschaft) preferred an indictment against the

applicant charging him with abuse of official authority in that

he had deliberately failed to inform the competent authorities

of the forced slaughter or to order a bacteriological examination

of the pig concerned.

The Korneuburg Regional Court conducted the trial against

the applicant on 2 August 1990 and 17 January 1991, and heard the

applicant and several witnesses as well as a veterinary expert.

The applicant was in particular questioned on his professional

practice, in particular in respect of examining animals

slaughtered at the place of his cousin, a butcher. As regards the

volume of his work with his cousin, the applicant indicated that

between February and June 1988 he had examined 1,500 pigs per

month. His cousin, when heard as witness, indicated that he

slaughtered between 400 and 500 pigs per week.

On 17 January 1991 the Korneuburg Regional Court convicted

the applicant of abuse of official authority and sentenced him

to six months' imprisonment on probation.

The Regional Court, having regard to the statements made by

the applicant and the testimonies of several witnesses, found him

guilty as charged. It considered in particular that the applicant

had not inspected the pig while it had still been alive. Even

assuming that, after the forced slaughter, the applicant had not,

due to a superficial inspection, noticed the pig's serious

disease and thus the forced slaughter, the absence of an

inspection prior to the slaughter in any event would have

entailed for him the obligation to order a bacteriological

examination and to inform the competent authorities. Only on the

occasion of a subsequent inspection independently ordered, the

serious disease and blood poisoning of the pig and its inadequate

quality were established.

As regards the applicant's personal particulars, the

Regional Court's judgment, proceeding from an estimate given by

the applicant at the hearing of the same day, stated inter alia

that his monthly income amounted to AS 10,000 and that he had to

maintain his wife and a child.

On 8 April 1991 the applicant lodged a plea of nullity

(Nichtig-keitsbeschwerde) and an appeal (Berufung) against

sentence. He complained that the reasoning in the judgment of the

Korneuburg Regional Court was contradictory and deviated from the

indictment. Moreover, the imposition of a fine would have been

sufficient. Payment of the whole fine or part thereof might even

be suspended on probation.

On 4 July 1991 the Austrian Supreme Court (Oberster

Gerichtshof) dismissed the applicant's plea of nullity. The

Supreme Court confirmed the Regional Court's reasoning that the

applicant had misused his official authority by failing to order

a bacteriological examination and to inform the competent

authorities, either that he knew about the forced slaughter or

at least that he was aware that the pig had been slaughtered

without a prior inspection when still alive. The case was

referred to the competent Court of Appeal (Oberlandesgericht) for

decision upon the appeal. The Supreme Court's decision was served

on 5 August 1991.

On 8 August 1991 the hearing before the Vienna Court of

Appeal was fixed for 19 September 1991. On 12 August 1991 the

summons for the hearing were served upon the applicant.

On 3 September 1991 the applicant informed the Court that,

for holiday reasons, he could not be present at the hearing. He

requested that either his non-appearance be excused or the

hearing be postponed.

On 19 September 1991 the hearing on the applicant's appeal

took place before the Vienna Court of Appeal in the presence of

the applicant's counsel. According to the verbatim record,

counsel informed the Court of Appeal again about the applicant's

absence for reasons of holidays, and repeated essentially his

written submissions. The Chief State Prosecutor

(Oberstaatsanwalt) objected to the appeal.

Following the hearing the Vienna Court of Appeal amended the

judgment of 17 January 1991 to the effect that the applicant's

sentence to imprisonment was replaced by a fine of 360 daily

rates of AS 400, in default of payment 180 days' imprisonment.

The execution of part of the sentence, namely sixty daily rates,

was suspended on probation. The Court of Appeal considered that,

having regard to the applicant's clean criminal record so far,

his sentence to imprisonment could be replaced by an equivalent

fine. The amount of the daily rates were calculated on the basis

of the applicant's monthly income which the Court "assessed

realistically" ("realistische Einschätzung") at more than AS

20,000. The Court of Appeal also noted that the applicant's wife

had an income of AS 8,500 and that they had one child. The Court

considered that, having regard to the applicant's personal and

financial situation, he was capable of paying AS 12,000 per month

for the fine without ruining himself.

On 25 October 1991 the Korneuburg Regional Court granted the

applicant's request to pay the fine in six rates of AS 20,000.

COMPLAINTS

The applicant complains under Article 6 of the Convention

about his conviction and about the alleged unfairness of the

criminal proceedings against him. He submits in particular that

the reasoning in the Regional Court's judgment was not conclusive

and not in conformity with the indictment. He further submits

that the proceedings before the Court of Appeal were unfair on

the ground that the Court of Appeal did not fix the fine on the

basis of the Regional Court's findings as to his income, but made

an excessive assessment without having heard him on this matter

or otherwise established his income.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 January 1992 and

registered on 3 April 1992.

On 14 October 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 4 February 1993, the Government submitted their

observations. The applicant's observations in reply were

submitted on 1 April 1993.

THE LAW

The applicant complains about his conviction and also about

the proceedings concerned.

The Commission recalls that 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 set out in the Convention (No. 10486/83, Dec. 9.10.86,

D.R. 49 p. 100).

In the present case, the applicant complains that, for

several reasons, he did not receive a fair hearing, as guaranteed

by Article 6 para. 1 (Art. 6-1), in the determination of the

criminal charge against him.

The applicant complains in particular that the appeal

proceedings before the Vienna Court of Appeal regarding the

fixing of the fine imposed upon him were unfair.

The Government contend that the applicant cannot claim to

be a victim, within the meaning of Article 25 (Art. 25) of the

Convention, of the alleged violation of Article 6 para. 1 (Art.

6-1) on the ground that he voluntarily did not avail himself of

the opportunity to appear in person at the hearing on his appeal.

The applicant and his counsel failed to request expressly that

the hearing be postponed. Moreover, in his submissions upon

appeal, the applicant himself suggested that the sentence be

commuted to a fine, and should have, therefore, been aware that

the question of his income might could be of relevance. Having

regard to counsel's failure to request that the hearing be

postponed, the Government also claim non-exhaustion of domestic

remedies under Article 26 (Art. 26) of the Convention.

The Government also submit that the Regional Court, in its

judgment, had only referred to the applicant's indications as to

his monthly income without assessing this matter on the basis of

evidence, as it sentenced him to imprisonment. The Vienna Court

of Appeal could reasonably estimate the applicant's income on the

basis of the contents of the file.

The applicant submits that the Court of Appeal, deviating

from a finding of the first instance court, assessed his income

at an unreasonable amount without having heard him on this

matter. Such a new estimation by the Court of Appeal was not to

be expected.

The Commission notes that the Korneuburg Regional Court,

following two hearings, convicted the applicant of abuse of

official authority and sentenced him to six months' imprisonment

on probation. In its judgment, the Regional Court, proceeding

from the applicant's indications at the hearing of the same day,

assumed a monthly income of AS 10,000. The applicant's plea of

nullity remained unsuccessful. Upon his appeal against sentence,

the Vienna Court of Appeal replaced the sentence to imprisonment

by a fine of 360 daily rates of AS 400, and suspended the

execution of part of the sentence on probation. As regards the

fixing of the amount of the daily rates, the Court of Appeal

based itself on an assessment of his monthly income at more than

AS 20,000.

The Commission also notes that the applicant, in his

submissions upon appeal, suggested the imposition of a fine

without specifying the amount he considered to be appropriate,

or referring to his income as a basis for calculating any daily

rates to be imposed. Having been summoned for the hearing on his

appeal, he informed the Court that, for holiday reasons, he could

not be present at the hearing, and requested that either his non-

appearance be excused or the hearing be postponed. At the hearing

in question, the applicant's defence counsel was present.

The Commission is not required to decide whether the

Government's arguments suffice to conclude that the applicant,

in this respect, cannot claim to be a victim, within the meaning

of Article 25

(Art. 25), or failed to exhaust the domestic remedies, as

required by Article 26 (Art. 26), as his complaints do not, in

any event, disclose any appearance of a violation of his right

to a fair trial.

The Commission considers that the Court of Appeal, when

replacing the applicant's prison sentence by a fine which had to

be fixed in relation to his income, could, on the basis of the

full contents of the criminal file assess the applicant's income

without being bound by the indications of the first instance

court in this respect. In the course of the proceedings against

him, the applicant had made various statements relating to his

workload as a meat inspector, and also to his income. Further

indications in this respect followed from the statement of a

witness heard at the trial against him. In these circumstances,

the assessment made by the Court of Appeal does not appear

arbitrary. Moreover, the applicant had made a statement on his

monthly income at the trial before the Regional Court. When

suggesting, in his appeal, to replace his prison sentence by a

fine, he had the opportunity to comment on the question as to the

fixing of such a fine, and particularly to specify his income.

Having decided not to appear at the hearing upon his appeal, the

applicant missed a further opportunity to address this matter

before the Court of Appeal, and so did his defence counsel.

The Commission, therefore, finds that there was no element

of unfairness in the appeal proceedings before the Vienna Court

of Appeal concerning the fixing of the fine imposed upon the

applicant.

As regards the applicant's further submissions that the

reasoning in the Regional Court's judgment was not conclusive and

not in conformity with the indictment, the Commission considers

that there is no indication that in the course of the trial

before the Korneuburg Regional Court, the applicant, assisted by

defence counsel, could not properly present his arguments or not

effectively exercise his defence rights.

In these circumstances, the Commission finds that the

criminal proceedings against the applicant, taken as a whole,

satisfied the requirements of a fair hearing, pursuant to Article

6 para. 1

(Art. 6-1) of the Convention.

It follows that 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 THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First

Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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