Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16514/90

by Norbert KRITSCH

against Austria

The European Commission of Human Rights sitting in private on

11 May 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 December 1989

by Norbert Kritsch against Austria and registered on 26 April 1990

under file No. 16514/90;

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 applicant is an Austrian citizen, born in 1952 and at present

detained in prison in Vienna. He is represented by Mr. R. Soyer, a

lawyer in Vienna.

The facts as agreed between the parties may be summarised as

follows.

In the afternoon of 10 November 1988 the applicant and an

accomplice, K., were arrested by the police on the premises of a Vienna

railway station. According to the police report, information had been

received about suspected drug peddlers and the two corresponded to the

descriptions given. K. offered resistance and tried to reach for his

pistol. He therefore had to be overwhelmed by three policemen and

suffered slight injuries. Two of the policemen were likewise slightly

injured but in view of the unimportance of the injuries no medical

examination was effected. The applicant tried to escape but eventually

stopped running when the police threatened to shoot at him. He offered

passive resistance to his arrest. A third man succeeded in escaping.

The police found 9.75 kgs of hashish in a bag which had been carried

by K. The applicant had 88,000 and K. 10,800 AS in their possession.

On 12 November 1988 the applicant was heard as a suspect by a

judge.

He stated that for more than ten years he had smoked hashish more

or less regularly but that he was not an addict. He then stated that

of his own free will he was prepared to confess his drug dealing in the

hope of receiving a lenient sentence. He admitted that, because the

turn-over of his coffee shop was insufficient resulting in a difficult

financial situation, he had accepted the proposal of one W. to be

supplied with hashish for resale. Partners of W. sold him successively

quantities of 1-2 kgs of hashish, amounting to a total of approximately

30-35 kgs. He alleged that he did not know more about his suppliers

other than their first names, and a telephone number. One of them was,

so he stated, living in Milan, Italy, and spent most of his time

travelling abroad. A day before his arrest he had ordered 10 kgs of

hashish, his co-accused K. having found a buyer for such a quantity.

The applicant also confessed to having sold hashish inter alia to his

ex-wife S.K., and to E.K. and L.J. He further admitted to having tried

to escape when the police surprised him and his accomplice K., but he

denied having offered active resistance. The money found on him at his

arrest allegedly constitued receipts from his coffee shop.

On 10 May 1989 the applicant was convicted by the Vienna Regional

Court (Landesgericht) of drug peddling between July 1988 and

10 November 1988 and of an attempted sale of 9.75 kgs of hashish to one

M. He was sentenced to three and a half years' imprisonment. The

accomplice K. received the same punishment.

According to the judgment the applicant is a drug addict and has

five previous convictions, four of them likewise related to drug

offences. Both the applicant and his co-accused made full confessions

after their arrest and maintained these confessions before the

investigating judge. At the trial the applicant still admitted having

dealt with hashish but minimized the importance of his deals. He also

alleged for the first time that M. had acted as an agent provocateur

and that after his arrest he had been beaten by the police and

ill-treated with a plastic bag which was put over his head. The

Regional Court observed in this respect that neither the co-accused at

the trial nor a further co-accused who was prosecuted in separate

proceedings had made similar allegations. Furthermore the applicant

had maintained his confession when heard by the investigating judge

three days after his arrest. Therefore his defence at the trial was not

credible. The applicant's request to hear officers allegedly

responsible for the agent provocateur M. was rejected on the ground

that the applicant had not substantiated his allegation of having been

induced to the sale of 9.75 kgs of hashish and only presumed M. was an

undercover agent. His request was therefore considered to be an

inadmissible attempt to have further investigations made without a

concrete object of the proposed evidence (Erkundungsbeweis). In any

event, so the Regional Court pointed out, the officers in question were

not obliged to name an undercover agent and furthermore it was not

unlawful for an undercover agent to manifest an interest in the

purchase of drugs in order to obtain evidence against drug dealers. The

Regional Court also based its judgment on the evidence given by

witnesses E.K., S.K., H.P. and L.J., who stated to have bought hashish

from the applicant.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) was

rejected by the Austrian Supreme Court (Oberster Gerichtshof) on 13

October 1989. Insofar as the applicant complained that when heard by

the police he was not informed of his right to refuse to make any

statements and that he was ill-treated, the Supreme Court observed that

the alleged violations did not constitute a nullity ground. Insofar as

the applicant complained that his request to obtain evidence on the

supposed agent provocateur was disregarded, the Supreme Court stated

that even if the applicant had been unlawfully induced to sell drugs

this did not exclude his criminal responsibility.

The applicant laid criminal charges against the policemen who

arrested and interrogated him. Before that investigations had already

been taken up ex officio. However, having taken evidence and heard

witnesses named by the applicant the Vienna Regional Court decided on

5 December 1990 to discontinue the proceedings.

The applicant also lodged an appeal (Berufung) against sentence.

The appeal was rejected by the Vienna Court of Appeal

(Berufungsgericht) on 4 December 1989. The Court stated that the

applicant's partial confession had already been taken into account as

a mitigating factor by the trial court. It further stated that there

was nothing to show that the applicant was a heroin addict. In this

context it is pointed out that the applicant had himself stated before

the police on 12 November 1988 that he had been "clear" for eight

years. He had also denied being dependent on hashish.

In view of the applicant's allegations at the trial of

ill-treatment by the police, the Public Prosecution ex officio

instituted criminal investigations against the officers in question.

The applicant joined these proceedings as a private party

(Privatbeteiligter) on 31 October 1989. Extensive investigations were

carried out. Inter alia three detainees, H.St., E.W. and E.K., who had

according to another detainee, W.J., been ill-treated, were heard.

Contrary to the applicant's allegations, his co-accused and W.J. denied

however having been ill-treated after their arrest.

On 5 December 1990 the Vienna Regional Court therefore

discontinued the proceedings at the Public Prosecutor's request, on the

grounds that there was insufficient evidence to prove the applicant's

allegations.

COMPLAINTS

The applicant submits that his conviction of drug peddling is

exclusively based on his confession made before the police. He alleges

that he was not informed about his right not to make any statements or

to consult a lawyer. Furthermore he was ill-treated by the police and

forced to confess. He also alleges that initially he refused to supply

M. with drugs as he was not at all accustomed to dealing with large

quantities. He argues that if his request to take evidence on the

background of his attempted deal with M. had been granted, it would

have been proven that at the relevant time he acted under the influence

of drugs and was not criminally responsible. In any event the

intervention of an agent provocateur should have been considered as a

mitigating factor. The applicant invokes Articles 3 and 6 paras. 1 and

3 (b) and (d) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 December 1989 and registered

on 26 April 1990.

On 6 March 1991 the Commission decided to invite the respondent

Government to submit observations on the admissibility and merits of

the application. After extension of the time-limit the Government's

observations were sent on 6 June 1991, and the applicant's reply was

received on 16 August 1991.

THE LAW

1. The applicant first complains that after his arrest he was

ill-treated by the police. He invokes Article 3 (Art. 3) of the

Convention which prohibits inhuman and degrading treatment.

The Government submit that in this respect the applicant has not

exhausted domestic remedies. They point out that in any event criminal

proceedings were instituted ex officio in consequence of these

allegations but the taking of extensive evidence did not result in

their confirmation. The Government further point out that in prison

the applicant was corresponding with W.J. who likewise alleged that he

had been ill-treated after his arrest, while no such allegation had

been made by the applicant when he was heard by the investigating

judge. The Government conclude that in the circumstances the

applicant's allegations are clearly unfounded.

Even assuming that domestic remedies are exhausted, the

Commission notes that extensive investigations carried out by the

competent Austrian authorities did not confirm the applicant's

allegations about ill-treatment by the police. The Commission also

notes that the applicant first made these allegations at his trial

several months after his arrest and has not explained why he did not

raise his accusations before the investigating judge and did not at the

time ask for a medical examination in order to have possible marks or

injuries resulting from the alleged ill-treatment established in an

official medical report.

In these circumstances the Commission cannot find any appearance

of a violation of Article 3 (Art. 3) of the Convention.

2. Insofar as the applicant complains that his right to a fair

trial as guaranteed by Article 6 (Art. 6) of the Convention was

violated in that his conviction is exclusively based on statements

which he allegedly made under duress before the police and without

having been informed about his right to refuse to make any statements,

the Commission refers to its above findings and notes that the

applicant's allegation that he was not informed about his right to

remain silent has likewise not been raised before the investigating

judge although the applicant was assisted by a lawyer on the latter

occasion. In the circumstances of the present case there is

consequently no clear indication proving at least prima facie that at

the police interrogation the applicant's rights as a suspect were

disregarded. In any event the Commission observes that according to

the undisputed findings in the trial court's judgment the applicant

even repeated his confession before the judge who heard him three days

after his arrest. Furthermore the trial court, noting that the

applicant's allegations about ill-treatment by the police were not

confirmed by his accomplices, found them not credible. Finally the

trial court also based its findings on evidence given by witnesses

E.K., S.K., H.P. and L.J. who stated that they had bought drugs from

the applicant.

In these circumstances the Commission cannot find that the

applicant's conviction was exclusively based on his confession made

before the police nor has it been shown that this confession was

obtained by ill-treatment. Furthermore it cannot be found that the

alleged omission by the police to inform the applicant of his right to

make no statements and be defended by counsel affected his position in

such a manner as to amount to a violation of the right to a fair trial

under Article 6 (Art. 6) of the Convention.

3. Insofar as the applicant complains that the trial court refused

to take evidence relating to a supposed undercover agent, the

Commission observes that the right of an accused under Article 6 para.

3 (d) (Art. 6-3-d) to have witnesses examined is not absolute. It is

for the national judge to decide whether or not proposed evidence is

material (cf. Eur. Court H.R., Engel and Others judgement of 8 June

1976, Series A no. 22, p. 38-39, para. 91). The trial court stated

that the applicant did not allege any facts indicating that the

supposed under-cover agent had enticed him in an unlawful manner to

sell drugs. In his submissions before the Commission the applicant has

likewise in no way described his contacts with the alleged undercover

agent. There is consequently nothing to show that the applicant was,

in a manner incompatible with his rights under the Convention, incited

by a third person for whom the respondent Government would be

responsible, to procure hashish.

In these circumstances it cannot be found that the Austrian

courts arbitrarily refused to take evidence in this respect. There is

consequently no appearance of a violation of Article 6 (Art. 6).

It follows that all complaints have to be rejected as being

manifestly ill-founded, in accordance with 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KRITSCH v. AUSTRIA

KRITSCH v. AUSTRIA

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