Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20830/92

by M. W.

against Austria

The European Commission of Human Rights sitting in private

on 7 April 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 26 June 1992

by M. W. against Austria and registered on 22 October 1992 under

file No. 20830/92;

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 facts of the case as submitted by the applicant may be

summarised as follows.

The applicant is an Austrian national, born in 1970, who

resides in Vienna. Before the Commission he is represented by

Mr. R. Soyer, a lawyer practising in Vienna.

A. Particular circumstances of the case

On 10 May 1991 the applicant was taken in detention on

remand on the suspicion of having attempted to rob J.R., his

grandfather, on the same day. On the same day, the applicant and

J.R. were questioned by police officer M.G. at J.R.'s apartment

and again by police officer H.T. at the police station. J.R.

stated on both occasions that the applicant had threatened him

with a pistol to obtain money.

In the subsequent preliminary investigations before the

investigating judge J.R. availed himself of the right granted to

close relatives of the suspected person, to refuse to give

evidence, pursuant to Section 152 para. 1 of the Code of Criminal

Procedure (Strafprozeßordnung).

On 6 September 1991 the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) preferred a bill of indictment against the

applicant, accusing him of attempted aggravated robbery

(versuchter schwerer Raub) and extortion (Erpressung).

On 5 February 1992 the trial (Hauptverhandlung) against the

applicant took place before a Court of Assizes of the Vienna

Regional Court for Criminal Matters sitting with a jury

(Geschwornengericht).

According to the transcript of the trial, the Court of Assizes

heard the applicant as accused and four police officers and

J.R.'s neighbour as witnesses and a psychiatric expert. At the

trial J.R. again availed himself of the right to refuse to give

evidence.

The applicant stated that on the evening of 10 May 1991 he

had had a dispute about money with J.R. who had previously

repeatedly given him money. He admitted that he had had a gas

pistol with him that day which he had later hidden outside in the

shrubbery close to the parking lot. He could not imagine having

threatened his grandfather with this pistol and he could not

remember having threatened his grandfather on earlier occasions,

though it was possible as he was often drunk. He also admitted

that the pistol later found was his own.

L.S., J.R.'s neighbour, stated that J.R. had repeatedly

complained to her that his grandson was asking him for money and

did not work. On 10 May 1991 J.R. had knocked on her door and

asked her for help and to call the police as the applicant had

been there and had threatened him with a pistol asking for money.

J.R. had appeared to be scared. She had phoned the police.

Police officer M.G. stated that on 10 May 1991 he was called

to J.R.'s apartment. There he talked to J.R. and drew up a

report on the statements of J.R. This report was read out in

court.

Police officers M.H. and D.S. made further submissions on

the events upon their arrival in J.R.'s apartment.

Police officer H.T. stated that on 10 May 1991 he had

questioned J.R. and the applicant. The statements of J.R. were

read out in court.

According to the transcript of the trial the applicant's

lawyer moved at the end of the hearing that the statements of

J.R. made to the police, as reported by police officers M.G. and

H.T., should not be used in the trial and that the statements of

witness L.S. should not be taken into account, as they would

circumvent the right of J.R. to refuse to give evidence. The

bench of the Court of Assizes dismissed these requests.

On 5 February 1992 the jury found the applicant guilty of

attempted aggravated robbery and extortion. The Court of Assizes

found that on 10 May 1991 the applicant had forced J.R. to give

him money by threatening him with a gas pistol. Between January

1991 and 10 May 1991 he had repeatedly obtained money from J.R.

by threatening to destroy his apartment. According to the record

of their deliberations (Niederschrift) the jury based their

verdict on the following evidence: "[applicant's] own statements;

plausible statements of the witnesses: L.S. and 3 police

officers; weapon was found" ("Eigene Verantwortung; glaubwürdige

Aussage der Zeugen: L.S. u. der 3 Pol. Beamten; Sicher-stellung

der Waffe"). The bench sitting with the jury set the applicant's

sentence at six years' imprisonment.

On 16 March 1992 the applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) and an appeal (Berufung) with the

Supreme Court (Oberster Gerichtshof). He complained that the

statements of J.R. before the police had been used in the trial

although J.R. had availed himself of his right to refuse to give

evidence. Also the statements of L.S. had been used in the trial

to circumvent J.R.'s right to refuse to give evidence.

On 23 June 1992 the Supreme Court dismissed the applicant's

plea of nullity and appeal. It found that the Court of Assizes

had acted correctly when dismissing the applicant's request not

to use the statements of J.R. before the police and the

statements of L.S. The fact that a witness had availed himself

of the right to refuse to give evidence did not exclude the

hearing of another witness on what the former had told him

earlier outside court. Moreover, the right not to give evidence

was intended to protect the witness from a moral dilemma and not

to serve the rights of the defence. Therefore, the Court of

Assizes had been obliged to hear L.S. as a witness in order to

gather corroborating evidence as regards the statements of J.R.

before the police. For the same reason it had had to hear the

police officers M.G. M.H., D.S. and H.T. as witnesses on the

spontaneous statements of J.R., made immediately after the police

officers had arrived on the place of the events and on the

circumstances under which these statements had been made.

B. Relevant domestic law

Under Article 152 para. 1, sub-paragraph 1, of the Code of

Criminal Procedure, the members of the accused's family as

referred to in Article 72 of the Criminal Code are exempted from

giving evidence.

Paragraphs 2 and 3 of Article 252 of the Code of Criminal

Procedure are worded as follows:

"2. The records of on-the-spot inspections and police

reports, as well as the accused's criminal record and any

other material documents or evidence, shall be read out at

the hearing, unless both parties agree to dispense with

this proceeding.

3. After each such document has been read out, the accused

shall be asked if he wishes to make any comments thereon."

COMPLAINTS

The applicant complains under Article 6 paras. 1 and 3 (d)

of the Convention that the statements his grandfather J.R. made

before the police at the pre-trial stage were read out in court

at the trial, though J.R. availed himself of the right not to

give evidence. At no stage of the proceedings had he had the

possibility to question this central witness of the prosecution.

Nevertheless, the Austrian courts based his conviction

exclusively on the statements of this witness.

THE LAW

The applicant complains under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention that at his trial the

statements his grandfather J.R. made before the police were read

out in court, although J.R. availed himself of the right not to

give evidence.

Article 6 paras. 1 and 3 (d) (Art. 6-1-, 6-3-d) of the

Convention, as far as relevant, reads 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. ..."

(3) Everyone charged with a criminal offence has the

following minimum rights:

(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 the guarantees contained in

paragraph 3 of Article 6 (Art. 6-3) of the Convention are

specific aspects of the general concept of fair trial set forth

in paragraph 1 of this Article. In the circumstances of the

present case, it will consider the applicant's complaint under

the two provisions taken together (see Eur. Court H.R., Isgrò

judgment of 19 February 1991, Series A no. 194-A, p. 12,

para. 31).

The Commission recalls further 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. All the evidence must

normally be produced in the presence of the accused at a public

hearing with a view to adversarial argument. This does not mean,

however, that the statement of a witness must always be made in

court and in public if it is to be admitted in evidence; in

particular, this may prove impossible in certain cases. The use

in this way of statements obtained at the pre-trial stage is not

in itself inconsistent with paragraphs 3 (d) and 1 of Article 6

(Art. 6-1, 6-3-d), provided that the rights of the defence have

been respected. As a rule, these rights require that the

defendant be given an adequate and proper opportunity to

challenge and question witnesses against him, either when he was

making his statement or at a later stage of the proceedings (Eur.

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

10, paras. 26 and 27).

J.R., the victim of the offences in question had, following

statements on the events made before police officers M.G. and

H.T., availed himself of his right to refuse to give evidence.

Thereupon, at the applicant's trial, J.R.'s earlier statements

were read out in court and the police officers concerned gave

testimony about the circumstances in which these statements had

been made. Unlike the cases of anonymous witnesses, J.R. was

known in particular to the applicant who was in a position to

raise doubts as to J.R.'s credibility, and he could react during

the trial to the evidence given by the police officers as well

as by the witness L.S., who also referred to statements which

J.R. had made to her outside court. He also had the possibility

to put forward his own version of the events. In this respect

the Commission notes that the applicant did not clearly claim to

be innocent.

The Commission further notes that, according to the note on

their deliberations, the jury did not expressly rely on the

statements J.R. had made to police officers M.G. and H.T. They

relied on the applicant's own statements and the statements of

witnesses, namely three police officers M.G., H.T. and M.H, and

the applicant's neighbour L.S. Besides a recount of the events

which J.R. had given to them, these statements also contained the

personal assessments of these witnesses. Lastly, the jury also

relied on the fact that the applicant on the day of the events

admittedly had a pistol with him and that this pistol was found

close to the victim's home.

The Commission finds that the Court of Assizes could

reasonably consider the statements of J.R., as read out in court,

to be corroborated by the evidence before it. The fact that it

was impossible to question J.R. at the trial did not, therefore,

in the circumstances of the case, violate the rights of the

defence and did not deprive the applicant of a fair trial.

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, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second

Chamber

(K. ROGGE) (S. TRECHSEL)

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M.W. v. AUSTRIA

M.W. v. AUSTRIA

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