Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20713/92

by J. K.

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 12 May 1992

by J. K. against Austria and registered on 29 September 1992

under file No. 20713/92;

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 applicant is an Austrian citizen born in 1943. He has

formerly been a police officer. Before the Commission he is

represented by Mr. M. Tuschl, residing in Vienna.

The facts of the case as submitted by the applicant may be

summarised as follows.

On 8 January 1990 the applicant was taken into detention on

remand. He was suspected of having taken heroin from a police

deposit of confiscated drugs and sold it. On the same day his

desk in the Security Directorate (Sicherheitsdirektion) was

searched following an order of the Investigating Judge.

On 16 February 1990 the applicant was released, but from 5

March to 16 March 1990 and from 13 April to 16 April 1990 he was

again taken into detention on remand.

Meanwhile, on 9 January 1990 the applicant was heard as

witness by the Vienna Regional Court, presided by Judge St., in

the trial against Q.H., who was accused of drug trafficking.

On 26 September 1990 the Vienna Regional Court

(Landesgericht), presided by Judge K. convicted the applicant of

abuse of authority, handling of drugs and false testimony and

sentenced him to 3 years imprisonment. The Regional Court found

that the applicant, who investigated in drug cases had taken on

15 August 1989 heroin from a deposit of seized drugs and handed

it over to V.J., a drug dealer known to him, who sold the heroin.

Notwithstanding the secret message from Q.H. found in the course

of the search of the applicant's office the applicant had denied

in his capacity as witness at the trial of Q.H., that he had

received such a message

On 31 January 1991 the Supreme Court partly upheld the

applicant's plea of nullity and quashed the Regional Court's

judgment insofar as it concerned the conviction of abuse of

authority and handling of drugs because the Regional Court had

not heard H.H. as witness requested by the defence.

Proceedings were resumed before the Regional Court, presided

by Judge St. On 14 June 1991 the applicant was convicted again

of abuse of authority and handling of drugs and sentenced to 3

years imprisonment. This time H.H. was heard as witness at the

trial.

On 8 October 1991 the applicant lodged a plea of nullity and

an appeal. In his plea of nullity, relying on Section 281 paras.

5 and 5a of the Code of Criminal Procedure (Strafprozeßordnung),

he complained about the Regional Court's assessment of evidence.

In particular, he raised doubts as to the credibility of V.J.,

the main witness of the prosecution, and complained that,

contrary to what the Regional Court had stated, this witness gave

different versions of the events in the course of the

proceedings.

On 23 January 1992 the Supreme Court dismissed the

applicant's plea of nullity under Section 285d para. 1 sub-para.

1 and 2 and Section 285a para. 2 of the Code of Criminal

Procedure without an oral hearing. The Supreme Court held that

the assessment of evidence could only be attacked if the

conclusions drawn by a court were illogical. It was not the

Supreme Court's task to verify the material correctness of the

Regional Court's findings. As regards the alleged discrepancies

in the successive statements of the witness V.J., the Supreme

Court found that the Regional Court had correctly assumed that

they only concerned accessory circumstances but not the essential

facts of the case. In any event, the applicant's allegations did

not find any support in the file.

On 17 March 1992 the Vienna Court of Appeal, after an oral

hearing, dismissed the applicant's appeal.

B. Relevant domestic law

Article 281 para. 1 of the Code of Criminal Procedure

(Straf- prozeßordnung) provides for the specific grounds on which

a plea of nullity may be made. These include:

"5. if the judgment of the trial court in respect of

decisive facts is unclear, incomplete or self-contradictory

...

5a. if substantial doubts on the correctness of the

decisive facts on which the decision on the guilt is based

arise from the file."

Article 285a para 2 of the Code of Criminal Procedure

provides:

"The court of first instance at which a plea of nullity

against the final judgment has been lodged has to reject

this plea:

2. if at the giving of notice of the plea of nullity or its

presentation one of the grounds for nullity as mentioned in

Section 281 para. 1 (1 to 11) has not been indicated

clearly, in particular if the circumstances to which the

ground of nullity relates are not referred to expressly or

at least by a clear indication."

Article 285d para. 1 of the Code of Criminal Procedure

provides:

"A plea of nullity may be rejected immediately after

deliberation in private:

1. if it should already have been rejected by the court at

first instance, pursuant to Article 285 (a) ...,

2. if the plea of nullity is based on the grounds of

nullity enumerated in Article 281 para. 1 (1-8 and 11) and

if the Supreme Court unanimously finds that the complaint

should be dismissed as manifestly ill-founded without any

need for further deliberation."

COMPLAINTS

1. The applicant complains under Article 5 of the Convention

that his detention on remand from 5 March to 16 March 1990 and

from 13 April to 16 April 1990 was unlawful.

2. The applicant complains further under Article 6 para. 1 of

the Convention about his conviction and the proceedings

concerned. He submits in particular that the Regional Court did

not believe the credible witnesses of the defence but followed

the statements of recidivist drug dealer who even contradicted

himself in the course of the proceedings. He further submits

that the Presiding Judge St. at the second trial was biased

against him. In a previous set of proceedings Judge St. had

questioned him as a witness, and, in respect of the statements

made, he had been convicted of false testimony. Moreover, he

should have been informed in advance of the search of his desk

in the Security Directorate, as provided for in Section 140 of

the Code of Criminal Procedure.

3. The applicant also complains under Article 6 para. 2 of the

Convention that his conviction infringed the principle of

presumption of innocence.

4. He also complains under Article 6 para. 1 of the Convention

that the Supreme Court did not hold a hearing on his plea of

nullity.

THE LAW

1. The applicant complains under Article 5 (Art. 5) of the

Convention that his detention on remand from 5 March to 16 March

1990 and from 13 April to 16 April 1990 was unlawful.

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 5 (Art. 5) 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 recognized rules of international law, and

within a period of six months from the date on which the final

decision was taken.

In this respect the Commission observes that the applicant

has not shown that he appealed to the Judges' Chamber nor that

he had instituted proceedings for unlawful detention. 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.

In any event, even assuming that the applicant did exhaust

domestic remedies, the Commission finds that the applicant failed

to comply with the time limit stipulated by Article 26 (Art. 26)

of the Convention as he was released from detention on remand on

16 April 1990 but introduced the present application only on 12

May 1992.

This part of the application must, therefore, be rejected

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

2. The applicant complains further under Article 6 para. 1

(Art. 6-1) of the Convention about his conviction and the

proceedings leading thereto.

Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, reads as follows:

"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. ..."

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 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 (see e.g. No.

458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec.

8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79,

D.R. 18 pp. 31, 45).

The applicant complains under Article 6 para. 1 (Art. 6-1)

of the Convention about the alleged unfairness of the proceedings

in several respects.

a) He submits that the Regional Court did not attach any weight

to the statements of the credible witnesses of the defence but

followed the statements of a recidivist drug dealer who even

contradicted himself in the course of the proceedings.

The Commission recalls that the admissibility of evidence

is primarily a matter for regulation by national law and, as a

rule, it is for the national courts to assess the evidence before

them. The Commission's 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, paras. 26 and 27).

In this respect the Commission observes that the applicant

failed to show in what way the evidence taken by the Regional

Court in the second set of proceedings rendered the proceedings

unfair.

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.

b) He submits that the Presiding Judge St. at the second trial

was biased against him.

However, the Commission observes that the applicant has not

shown that he challenged the Presiding Judge for bias in the

course of the trial.

It follows that in this respect the applicant has not

satisfied the requirement as to exhaustion of domestic remedies

contained in Article 26 (Art. 26) of the Convention and that this

part of the application, therefore, is inadmissible by virtue of

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

c) As regards the applicant's further submission that he should

have been informed in advance of the search of his desk in the

Security Directorate, the Commission observes that the applicant

has not shown that he appealed to the Judges' Chamber, or raised

the matter in the course of the trial.

It follows that also in this respect the applicant has not

satisfied the requirement as to exhaustion of domestic remedies

contained in Article 26 (Art. 26) of the Convention and that this

part of the application, therefore, is inadmissible by virtue of

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

3. The applicant also complains under Article 6 para. 2

(Art. 6-2) of the Convention that his conviction infringed on the

principle of presumption of innocence.

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.).

However, it does not appear from the file that the Austrian

courts had taken any decisions or attitudes reflecting such an

opinion.

It follows that there is no appearance of a violation of the

applicant's right under Article 6 para. 2 (Art. 6-2) of the

Convention.

Therefore, this part of the application is manifestly ill-

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

the Convention.

4. Finally, the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention that the Supreme Court did not hold

a hearing on his plea of nullity.

The Commission considers it cannot, on the basis of the

file, determine the admissibility of this complaint and that it

is therefore necessary, in accordance with Rule 48 para. 2 (b)

of the Rules of Procedure, to give notice of this complaint to

the respondant Government.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN its examination of the complaint as

regards the lack of a hearing before the Supreme Court in

the proceedings on the applicant's plea of nullity;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First

Chamber

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

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J.K. v. AUSTRIA

J.K. v. AUSTRIA

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