Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19205/91

by H.N.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 14 October 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, 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 6 September 1991

by H.N. against Austria and registered on 17 December 1991 under file

No. 19205/91;

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 they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1921, is an Austrian national and resident

at Krems-Gneixendorf. Before the Commission she is represented by

Mr. F. Winiwarter, a lawyer practising in Krems.

On 4 February 1991 the Krems Regional Court (Kreisgericht)

convicted the applicant of attempted grave fraud and sentenced her to

eight months' imprisonment on probation. The Regional Court found her

guilty of having presented to the Krems District Court (Bezirksgericht)

the will of her late husband dated 14 April 1986, the contents of the

will and the signatures of her late husband as well as three witnesses

having been forged by her to the disadvantage of the beneficiaries

under an earlier will and to her advantage.

As regards the question of forgery the Regional Court based

itself in particular on the testimonies of the three witnesses named

in the will concerned who stated that they had not signed it. The

Court noted that, in the course of the criminal proceedings against

her, the applicant had deviated from her statements made in the course

of the civil proceedings concerning the validity of the will concerned,

and had left open whether the will had been written by her late husband

or possibly third, unknown persons. The fact that the applicant had

been the author of the said document, namely of its contents and all

the signatures, was considered convincingly proven by the written

opinion of the graphological expert Prof. G., Dean of the Austrian

graphology experts. His opinion which was read out at the trial was

thorough and conclusive. He had used as many handwritings for

comparison as possible. The defence had not invoked any mistake,

contradiction or vagueness justifying the appointment of a second

expert. The Court also noted that, when it ex officio inquired with

the parties about the appointment of a second expert, the applicant

declared that she was not prepared to cooperate with another expert and

supply further handwritten material. The Regional Court further

considered that the written expert opinion could be read out at the

trial in accordance with S. 252 para. 1 (1) of the Austrian Code of

Criminal Procedure (Strafprozeßordnung), as the eighty-seven year old

expert had fallen seriously ill and could not attend the trial. The

Regional Court further considered that the opinion could be used as

evidence although the expert, before asking the applicant for a

handwritten sample, had not advised her on her right to refuse

cooperation in this matter as at the time of the examination of her

handwriting by the expert, she had been informed about the

investigations and charge against her and about the function of the

expert in these proceedings.

In these and the following proceedings the applicant was defended

by Mr. Winiwarter.

On 18 April 1991 the Vienna Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal (Berufung wegen Nichtigkeit, Schuld

und Strafe). The Court of Appeal confirmed the reasoning of the

Regional Court. In particular, the applicant had been informed about

the purpose of her examination by the graphological expert and had

given samples of her handwriting voluntarily. The fact that the

written expert opinion had been read out at the trial could not be

objected to under the Code of Criminal Procedure, as there was no

unlimited right to have witnesses or experts appearing at the trial.

The applicant's criticism of the expert, in particular as regards his

age, were unfounded. The decision was served on 7 May 1991.

COMPLAINTS

The applicant complains under Article 6 para. 3 (d) of the

Convention that she did not have any possibility to put questions to

the graphological expert at the trial. Furthermore, it had been unfair

that the expert had not informed her about her right to refuse

cooperation in respect of the handwriting samples.

THE LAW

The applicant complains about her conviction by the Krems

Regional Court on 4 February 1991, confirmed by the Vienna Court of

Appeal on 18 April 1991, and also of the court proceedings concerned.

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 only 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 also complains under Article 6 para. 3 (d)

(Art. 6-3-d) that she did not have a fair trial in that the expert

opinion had been read out at the trial. Furthermore, the expert had

not informed her that she did not have to cooperate as regards the

handwriting examination.

The Commission notes that, read literally, subparagraph (d) of

paragraph 3 relates to witnesses and not experts. However, the

guarantees contained in paragraph 3 are constituent elements, amongst

others, of the concept of a fair trial set forth in paragraph 1.

Therefore, the Commission considers it appropriate to examine this

complaint under the general rule of paragraph 1 of Article 6 (Art. 6)

of the Convention, whilst having due regard to the guarantees of

paragraph 3 (cf. Eur. Court H.R., Bönisch judgment of 6 May 1985,

Series A no. 92, pp. 14/15, para. 29; Brandstetter judgment of 28

August 1991, Series A no. 211, p. 20, para. 42).

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. It is the task of the

Convention organs to ascertain whether the proceedings considered as

a whole, including the way in which the evidence was taken, were fair

(cf. Eur. Court H.R., Isgrò judgment of 19 February 1991, Series A no.

194-A, p. 11, para. 31; Asch judgment of 26 April 1991, Series A

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

All the evidence must normally be produced in the presence of the

accused at a public hearing with a view to adversarial argument. As

this may prove to be impossible in some cases for oral testimony the

use of statements made at the pre-trial stage is not in itself

inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6),

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 a witness against him (cf. Eur.

Court H.R., Asch judgment, loc. cit., para. 27 with further reference).

The Commission notes that the present case concerned the reading

out of a graphological expert opinion at the trial against the

applicant, as the expert, for reasons of old age and ill-health, could

not appear in court. The expert Prof. G. was known to the Austrian

courts concerned. The applicant knew him from the occasion of the

taking of her handwritten samples. At that time, the applicant had

been informed about the criminal proceedings against her and the object

of her examination by the handwriting expert. At the trial the

applicant, defended by counsel, did not cast any doubt as to the well-

foundedness and conclusiveness of the opinion in question. Upon

inquiry by the Regional Court at the trial, the applicant did not ask

for a second expert opinion. The Krems Regional Court also had due

regard to the statements of three witnesses confirming that they had

not signed the document in question. Both the Regional Court and the

Court of Appeal carefully considered the submissions put forward by the

defence.

In these circumstances, the Commission finds that there is no

appearance of a violation of the rights of the defence and hence the

applicant's right to 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.

Accordingly, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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H.N. v. AUSTRIA

H.N. v. AUSTRIA

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