Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17310/90

by Lothar RUPRAT

against Austria

The European Commission of Human Rights sitting in private on

1 December 1993 , 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

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 2 October 1990

registered on 7 October 1990 by Lothar RUPRAT against Austria under

file No. 17310/90;

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

summarized as follows:

The applicant is an Austrian national born in 1969 and residing

in Höchst. Before the Commission he is represented by Mr. W. L. Weh,

a lawyer practising in Bregenz.

A. Particular circumstances of the case

On 30 January 1989 the Feldkirch Public Prosecutor's Office

(Staatsanwaltschaft) preferred a bill of indictment on the applicant

and four others. The four others were juveniles at the time of the

proceedings. The applicant and the juveniles were, inter alia, accused

of having caused bodily harm (Körperverletzung) to two identified and

one unidentified victim. The applicant was also accused of having

uttered dangerous threats (gefährliche Drohung) against one of his

co-accused.

On 23 March 1989 a hearing took place before the Feldkirch

Regional Court (Landesgericht) sitting as Juvenile Court

(Jugendgericht). According to the minutes of the hearing the Public

Prosecutor requested to adjourn the hearing for two months in order to

give the accused the opportunity to settle the charge outside court

(außergerichtlicher Tatausgleich). If the case would be settled

outside court, the proceedings against the juveniles could be

discontinued. The Court granted the Public Prosecutor's move.

On 5 May 1989 the Regional Court provisionally discontinued the

criminal proceedings against the juveniles (vorläufige Einstellung

durch das Gericht). The Court found that the juvenile accused had

apologized to the identified victims and had repaired the damage caused

to them.

On 1 August 1989 a court hearing took place before the Regional

Court. According to the transcript of the court hearing the applicant

was questioned by the Judge and the Judge warned the applicant's lawyer

not to interrupt him.

On the same day the Regional Court convicted the applicant and

sentenced him to a fine of 150 daily rates of AS 150 each, two-thirds

of the fine as a conditional sentence for a probationary period of two

years.

On 4 August 1989 the applicant lodged an appeal, which was

substantiated on 30 August 1989.

On 5 September 1989 the Regional Court rectified its judgment

correcting in the verdict the place of the offence as regards the

dangerous threat. On 10 October 1989 the Innsbruck Court of Appeal

(Oberlandesgericht) dismissed the applicant's complaint about the

rectification. The Court of Appeal found that the correct place of the

offence followed from the reasons of the Regional Court's judgment.

The Regional Court was competent to rectify such a mere writing

mistake.

On 7 December 1989 the Senior Public Prosecutor

(Oberstaatsanwalt) submitted a position paper of two and a half pages

on the applicant's appeal ("croquis") to the Court of Appeal. In the

Senior Public Prosecutor's opinion the applicant's appeal was ill-

founded. He submitted in particular that the Regional Court's

reasoning in its judgment was not defective as the Regional Court had

taken sufficient evidence and assessed the evidence correctly.

On 3 January 1990 a court hearing on the applicant's appeal

against his conviction took place before the Innsbruck Court of Appeal.

In the course of the hearing the applicant's lawyer requested to

inspect the Senior Public Prosecutor's "croquis". This request was

dismissed by the Court. The Court found that it could not let the

applicant's lawyer inspect the position paper because it contained

handwritten comments by a member of the Court. Therefore, it allowed

to be drawn conclusions as to the Court's internal decision making

process and thus was exempt from the right of access to the file

(Akteneinsicht). The applicant's lawyer then challenged the members

of the Court for bias as the Court had infringed his right to defence

and because they had already decided on the applicant's complaint

against the rectification of the judgment. Also this move was

dismissed by the Court of Appeal. However, having heard the

applicant's defence the Court of Appeal decided to repeat and

supplement the taking of evidence on the charges against the applicant.

On 30 January 1990 the applicant challenged again the Court of

Appeal for bias. On 6 February 1990 the President of the Court of

Appeal dismissed the applicant's request.

On 14 March 1990 the Court of Appeal held a court hearing and

heard four witnesses, the former co-accused of the applicant, and two

police officers who carried out the police investigations. According

to the transcript of the court hearing the applicant's lawyer requested

the Court of Appeal to order the Senior Public Prosecutor to specify

the exact time when the applicant allegedly had uttered dangerous

threats. This request was dismissed by the Court of Appeal. The Court

of Appeal found that it had to proceed on the basis of the judgment at

first instance.

On 4 April 1990 the Court of Appeal held a further court hearing

and heard two more witnesses.

On 4 April 1990 the Innsbruck Court of Appeal dismissed the

applicant's appeal. The Court found that the applicant had admitted

to have beaten up two identified persons together with his former co-

accused. Together with his former co-accused he had also beaten up a

third person who remained unidentified. In this respect the Court

relied on the statement of the witnesses. The Court further found the

applicant guilty of having menaced with threats of causing bodily harm

to one of his former co-accused after the latter had deposited a

statement with the police. In this respect the Court changed the date

of the offence from 28 November 1988, as stated in the judgment at

first instance, to 27 November 1988.

On 8 May 1990 this judgment was served on the applicant.

On 24 July 1990 the applicant requested again to inspect the

whole case file and in particular the Senior Public Prosecutor's

"croquis".

On 31 July 1990 the Court of Appeal dismissed the applicant's

request.

Following a suggestion by the applicant, the Attorney General's

Office (Generalprokuratur) introduced on 7 September 1990 a plea of

nullity for the preservation of the law (Nichtigkeitsbeschwerde zur

Wahrung des Gesetzes) against the Regional Court's decision of

3 January 1990 and the Court of Appeal's decision of 31 July 1990, both

refusing access to the Senior Public Prosecutor's "croquis".

On 25 September 1990 the Supreme Court granted the plea of

nullity and declared that the decisions of 3 January and 31 July 1990

had violated the law. The Court found that written submissions filed

by the Senior Public Prosecutor were not exempt from the right to

inspect the file. If the working method of a member of the Court of

Appeal required to make notes on these submissions, a copy of the

original must be made to secure that the Senior Public Prosecutor's

submissions remain available for inspection by the accused. The

"croquis" of 7 December 1989 was thereupon made available to the

applicant.

B. Relevant domestic law

According to Section 259 no. 2 of the Code of Criminal Procedures

the Court has to acquit the accused if the prosecution withdraws its

bill of indictment after the trial (Hauptverhandlung) has been opened,

but before the Court retires to decide the judgment.

According to Section 227 para. 1 of the Code of Criminal

Procedure the presiding judge discontinues the proceedings if the

prosecution withdraws the bill of indictment before the opening of the

trial.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

about his conviction and the fairness of the criminal proceedings

against him. He alleges that he was convicted at first instance

against the express wish of the Public Prosecutor. He alleges further

that he was questioned by the Court at first instance in an inquisitory

manner and threatened that criminal proceedings for defamation could

be instituted against him. He submits also that his right to an

effective defence was violated because at no point in the proceedings,

the prosecution was ordered by the courts to specify the exact time and

place when the applicant allegedly had uttered dangerous threats.

Lastly, he submits that his conviction for causing bodily harm was

arbitrary as he was convicted for having caused injuries of an

unspecified extent to an unidentified bicycle driver.

2. Under the same provision he complains that the principle of

equality of arms had been violated because the Court of Appeal refused

to transmit to the applicant the Senior Public Prosecutor's

"croquis".

THE LAW

1. The applicant complains about his conviction and also about the

criminal proceedings against him.

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).

In the present case 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 he was convicted at first instance against the

express wish of the Public Prosecutor.

However, the Commission notes that at the hearing before the

Feldkirch Juvenile Court on 23 March 1989 the Public Prosecutor only

referred to a possible discontinuation of the criminal proceedings

against the juveniles. Having regard to Section 227 para. 1 and

Section 259 no. 2 of the Code of Criminal Proceedings, the Commission

considers that the Public Prosecutor was in a position to withdraw his

bill of indictment if he wished to do so. In these circumstances there

is no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention in this respect.

b) He submits further that he was questioned by the Court in first

instance in an inquisitory manner and threatened that criminal

proceedings for defamation could be instituted against him.

The Commission recalls that it would be overstraining the concept

of the right of defence of those charged with a criminal offence if it

were to be assumed that they could not be prosecuted when, in

exercising that right, they intentionally arouse false suspicions of

punishable behaviour concerning a witness or any other person involved

in the criminal proceedings. The mere possibility of an accused being

subsequently prosecuted on account of allegations made in his defence

cannot be deemed to infringe on his rights under Article 6 para. 3 (c)

(Art. 6-3-c). The position might be different if it were established

that, as a consequence on national law of practice in this respect

being unduly severe, the risk of subsequent prosecution is such that

the defendant is genuinely inhibited from freely exercising these

rights (Eur. Court H.R., Brandstetter judgment of 28 August 1991,

Series A no. 211, pp. 23 and 24, paras. 52 and 53).

The Commission notes that, according to the transcript of the

Regional Court's hearing on 1 August 1989, the applicant was questioned

by the Judge and the Judge warned the applicant's lawyer not to

interrupt him. The Commission notes further that the transcript of the

court hearing does not indicate threats that defamation proceedings

could be instituted against the applicant.

The applicant submits that in this respect the transcript is

incomplete. However, the Commission finds that the applicant, who was

represented by defence counsel, did not sufficiently specify the

circumstances of his questioning by the Court at first instance and the

way and the context in which the Judge allegedly had threatened him.

It follows that this complaint does not disclose a violation of

Article 6 para. 1 (Art. 6-1) of the Convention either.

c) The applicant further complains that his right to an effective

defence was violated because at no point in the proceedings the

prosecution was ordered by the Court to specify the exact time and

place when the applicant allegedly had uttered dangerous threats. He

also submits that his conviction for causing bodily harm was arbitrary

as he was convicted for having caused injuries of an unspecified extent

to an unidentified bicycle driver.

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 the evidence was taken, were

fair (Eur. Court H.R., Asch judgment of 26 April 1991, Series A

no. 203, p. 10, para. 26).

The Commission notes that the applicant requested a clarification

by the prosecution regarding the charge of dangerous threats only at

the hearing before the Court of Appeal on 14 March 1990 during the

appeal proceedings, when he was already convicted for having uttered

dangerous threats on 28 November 1988. The Commission notes further

that Court of Appeal heard witnesses on this charge in the presence of

the applicant and his lawyer. The Court of Appeal eventually found

that the applicant had committed the offence of uttering dangerous

threats on 27 October 1988. Moreover, as regards the charge of having

caused injuries of an unspecified extent to an unidentified bicycle

driver, the Court of Appeal took evidence and found that this incident

was sufficiently proven by the statement of the witnesses.

The Commission does not find that the taking and assessment of

evidence shows any arbitrariness, or that the applicant's right to

defence was restricted in any way.

In these circumstances, there is no appearance of a violation of

Article 6 para. 1 (Art. 6-1) of the Convention in this respect.

2. The applicant lastly complains that the principle of equality of

arms had been violated because the Court of Appeal refused to transmit

to the applicant the Senior Public Prosecutor's "croquis".

The Commission recalls that the principle of equality of arms is

only one feature of a wider concept of a fair trial, which also

includes the fundamental right that criminal proceedings should be

adversarial. The right to an adversarial trial means, in a criminal

case, that both prosecution and defence must be given the opportunity

to have knowledge of and comment on the observations filed and the

evidence adduced by the other party. However, whatever method is

chosen, it should ensure that the other party will be aware that

observations have been filed and will get a real opportunity to comment

thereon (Eur. Court H.R., Brandstetter judgment of 28 August 1991,

Series A no. 211, pp. 27, paras. 66 et seq.).

The Commission notes that in the present case the applicant did

not receive the Senior Public Prosecutor's "croquis" during the appeal

proceedings. However, it also notes that on 25 September 1990

following a plea of nullity for the preservation of the law, the

Supreme Court declared unlawful the Court of Appeal's decisions of

3 January and 31 July 1990 whereby the applicant was refused access to

the Senior Public Prosecutor's submissions. The Supreme Court found

that the Court of Appeal's decisions had violated the applicant's right

of access to the case file.

In these circumstances the Commission considers that the

applicant's complaint was resolved before the introduction of the

present application in such a way that he could not claim to be a

victim within the terms of Article 25 para. 1 (Art. 25-1) of the

Convention. The Commission finds in particular that the Supreme Court

acknowledged the existence of a breach of the applicant's right of

access to the case-file, which is an aspect of the concept of as fair

trial under Article 6 para. 1 (Art. 6-1) of the Convention. Moreover,

the conviction of the applicant did not depend on this procedural

mistake, as the "croquis" was brief and, in any way, superseded by the

taking of new evidence before the Court of Appeal.

It follows that the applicant's complaints under Article 6 para.

(Art. 6-1) 1 of the Convention are 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 First Chamber President of the First Chamber

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

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RUPRAT v. AUSTRIA

RUPRAT v. AUSTRIA

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