Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18962/91

by Fred SINOWATZ

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. E. BUSUTTIL, Acting President of the First Chamber

F. ERMACORA

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 10 october 1991

by Fred Sinowatz against Austria and registered on 17 October 1991

under file No. 18962/91;

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 citizen, born in 1929. He resides

at Neufeld an der Leitha, Austria. Before the Commission he is

represented by Mr. Walter Schuppich, a lawyer practising in Vienna.

On 14 April 1986 an article appeared in a periodical called

"Profil" in which the author of the article stated inter alia :

"Verbleibt eine letzte Meldung zum Komplex WALDHEIM: Schon

im Sommer 1985 berichtete - streng vertraulich, versteht

sich - der burgenländische SPÖ-Funktionär Fred SINOWATZ

seinem Landesparteivorstand, daß man - wörtlich - zur

rechten Zeit vor der Präsidentenwahl 'in einer groß

angelegten Kampagne die österreichische Bevölkerung über

WALDHEIM's braune Vergangenheit informieren werde' ..."

(translation)

"There remains a last piece of information in the WALDHEIM

complex: Already in the summer of 1985 the Burgenland SPÖ-

functionary, Fred SINOWATZ, told the regional executive

committee of the party - on a strictly confidential basis,

of course - that - quote - at the right moment prior to the

presidential elections 'the Austrian public would be

informed through a large-scale campaign about WALDHEIM's

brown past' ..."

Due to this publication the applicant instituted private criminal

proceedings against the author for defamation (übler Nachrede) contrary

to section 111 of the Penal Code. Several court sessions were held from

11 March to 12 October 1987 during which more than 50 witnesses,

including the applicant, were heard. On the basis of an evaluation of

the evidence submitted by these witnesses as well as the documentary

evidence submitted the author was acquitted by the Regional Criminal

Court (Landesgericht für Strafsachen) of Vienna on 12 October 1987 as

the Court found it established that the applicant had in fact expressed

himself as stated by the author of the article in question. The

applicant appealed against this judgment but subsequently withdrew the

appeal for which reason the judgment became final on 25 April 1988.

On 17 May 1989 the public prosecutor instituted proceedings

against the applicant charging him with a violation of section 288 of

the Penal Code in having given false evidence as a witness in the above

case during a hearing on 29 April 1987.

The case was heard in the Regional Criminal Court of Vienna on

25 September 1990. The Court heard one witness, two expert witnesses

as well as the applicant. Furthermore, the Court decided to accept the

reading out of the statements made by 45 witnesses in the previous

private criminal prosecution case and thus rejected the prosecutor's

request to hear these witnesses directly. Finally, the Court rejected

the applicant's request to hear four further witnesses (hereinafter

referred to as A, B, C and D) as they could not, in the Court's view,

add anything of relevance to the case.

On the basis of the evaluation of the evidence submitted the

Regional Criminal Court, by judgment of 25 September 1990, found the

applicant guilty of the charge brought against him and sentenced him

to a fine totalling 360,000 ÖS.

The applicant appealed against this judgment to the Vienna Court

of Appeal (Oberlandesgericht). He relied inter alia on the fact that

the first instance court had refused his requests to hear the witnesses

A, B, C and D and that it had not heard the witnesses from the previous

case directly but relied on the court transcripts from that case.

The case was heard in the Court of Appeal on 8, 10 and 15 April

1991. In reply to the applicant's above complaints the Court of Appeal

confirmed the refusal not to hear the witnesses A, B, C and D as they

could not, also in the opinion of the Court of Appeal, add anything of

relevance to the case. As regards the witnesses A and B the Court found

that their testimony, which was related to the motives behind the

applicant's withdrawal of his appeal in the previous case and to

whether he was the man behind the campaign against the presidential

candidate Waldheim, would be of no relevance in respect of solving the

question of guilt in the present case. As regards the witness C, who

was supposed to inform the Court of what another witness had told him,

the Court found that this testimony was not such that reliable

conclusions could be drawn therefrom. Finally, as regards the witness

D, the Court found that his testimony concerned matters which already

followed from the other evidence submitted.

The Court of Appeal, however, decided to hear, and heard, the one

witness already interrogated in the first instance as well as almost

all the other witnesses heard in the previous case in order to obtain

direct supplementary evidence from them (Beweisergänzung). On the basis

of an evaluation of the evidence so obtained the Court of Appeal

decided, on 15 April 1991, to reject the appeal and to confirm the

judgment of the Regional Criminal Court.

COMPLAINTS

The applicant complains that he did not get a fair trial and

refers in particular to the fact that he was not allowed to hear a

number of witnesses. He invokes in this respect Articles 6 para. 1 and

3 (d) of the Convention.

Furthermore, he complains that he was not afforded a review of

his conviction or sentence by a higher tribunal as guaranteed to him

under Article 2 of Protocol No. 7 to the Convention.

THE LAW

1. The applicant complains that he did not get a fair trial and that

he was not allowed to hear a number of witnesses. He invokes Article

6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention which read as

far as relevant:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair ... hearing ... by an ...

impartial ... tribunal ...

...

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 first recalls that with regard to the judicial

decisions involved in the present case, its only task is to ensure, in

accordance with Article 19 (Art. 19) of the Convention, the observance

of the obligations undertaken by the Parties in the Convention. In

particular, the Commission 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. It refers, on this point, to its established case-law,

(see. e.g. No. 458/59, Dec. 29.3.90, 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).

It is true that in this case the applicant also complains that

he did not get a fair trial and that he was not allowed to have certain

witnesses heard by the courts.

As the guarantees in paragraph 3 of Article 6 (Art. 6-3) are

specific aspects of the right to a fair trial set forth in paragraph

1, the Commission will consider the applicant's complaints under the

two provisions taken together.

In this connection the Commission refers to its consistently held

view that the conformity of a trial with the rules laid down in Article

6 (Art. 6) of the Convention should be examined in the light of the

entire trial. It is true that one particular aspect or incident could

have been influential or assumed such importance as to constitute a

decisive factor in a general appraisal of the trial as a whole. But it

is important to note in this regard that, even in such an event, it is

on the basis of an appraisal of the whole trial that the question of

whether the case was given a fair hearing should be decided (cf. for

example No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127).

As regards the hearing of witnesses the Commission recalls that

one of the purposes of Article 6 para. 3 (d) (Art. 6-3-d) is to ensure

equality between the defence and the prosecution as regards the

summoning and examination of witnesses but it does not grant the

accused an unlimited right to secure the appearance of witnesses in

court. Furthermore, it is in the trial court's discretion to refuse to

take evidence which is considered irrelevant or unobtainable (cf. No.

8417/78, Dec. 4.5.79, D.R. 16 p. 200 and Eur. Court H.R., Engel and

Others judgment of 8 June 1976, Series A no. 22, para. 91, pp. 38-39).

In the present case the Commission recalls that the applicant's

case was heard in public in the Regional Criminal Court on 25 September

1990 where he was present and had the opportunity to submit what in his

opinion was of relevance to the outcome of the case. The Court

furthermore heard one witness and two expert witnesses whereas it

rejected the prosecutor's request to hear another 45 witnesses. It does

not appear that the applicant himself had requested to hear these

witnesses or had joined the request made by the prosecutor. It is

clear, however, that the applicant's request to hear the witnesses A,

B, C and D was rejected since their evidence would not, in the Court's

view, be necessary for the evaluation of the substance of the case

which the Court that to consider. Furthermore, the Commission recalls

that the case was heard again in public in the Court of Appeal which

confirmed the refusal to hear A, B, C and D but decided to obtain

supplementary evidence from the other witnesses in question.

The Commission has found no elements which would indicate that

the courts in these circumstances went beyond their discretion to

refuse to take evidence when refusing to hear the witnesses concerned.

Furthermore, the Commission has not found other elements which could

lead it to conclude that the right to a fair trial within the meaning

of Article 6 (Art. 6) of the Convention was not respected. Accordingly,

an examination of the case, as submitted, does not disclose to the

Commission, on the basis of an appraisal of the entire trial, any

appearance of a violation of Article 6 (Art. 6) of the Convention.

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.

2. The applicant also complains that he was not afforded a review

of his conviction or sentence as guaranteed by Article 2 of Protocol

No. 7 (P7-2) to the Convention which reads :

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence reviewed

by a higher tribunal. The exercise of this right, including the

grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law, or in cases

in which the person concerned was tried in the first instance by

the higher tribunal or was convicted following an appeal against

acquittal."

The applicant refers to the fact that only the Court of Appeal

actually heard the witnesses and that he could not appeal against that

Court's judgment.

The Commission recalls that the applicant's case was examined by

the Regional Criminal Court and, on appeal, by the Court of Appeal

which was called upon, and did in fact, review both the conviction and

the sentence. This procedure fulfils, in the Commission's view, the

requirement of Article 2 of Protocol No. 7 (P7-2) to the Convention.

The fact that the Court of Appeal decided, in compliance with the

applicant's request, to hear further witnesses, cannot lead to any

other conclusion.

It follows that this part of the application is also 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 Acting President of the First Chamber

(M.F. BUQUICCHIO) (E. BUSUTTIL)

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SINOWATZ v. AUSTRIA

SINOWATZ v. AUSTRIA

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