Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15853/89

by J.G.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 19 February 1992, the following members being present:

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

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

SirBasil HALL

Mr.C.L. ROZAKIS

Mrs.J. LIDDY

Mr.M. PELLONPÄÄ

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 9 August 1989 by

J.G. against Austria and registered on 1 December 1989 under file No.

15853/89;

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 1956 and at present

detained in prison in Krems. He is represented by Mr. K. Bernhauser,

a lawyer in Vienna.

It follows from the statements and documents submitted by the

applicant that on 17 August 1988 he was convicted by the Vienna

Regional Court (Landesgericht) of grievous bodily harm (absichtliche

schwere Körperverletzung) and sentenced to twelve years' imprisonment.

According to the findings of the Court the applicant had on 31

October 1987 poured an inflammable liquid over his wife and then set

fire to her causing serious burns on 35% of her body. The applicant

had defended himself by alleging that his wife had inadvertently spilt

the liquid herself and then caused the fire by lighting a cigarette.

Although the victim had made use of her right not to give evidence at

the trial the Court considered the applicant's defence to be disproven.

It referred to the report established by the police according to which

the applicant's wife had told a female police officer how the applicant

had treated her. According to this report she had also told the

officer that she was afraid of giving evidence against the applicant

as he had threatened to kill her. The officer had thereupon informed

her that as a relative she had a right to refuse to give evidence.

The report in question was, as is stated in the judgment, read out

at the trial. The Court considered that it could make use of the

report despite the fact that the victim later availed herself of the

right not to give evidence.

The Court further relied on evidence given by an eye-witness,

namely the victim's son, born on 29 November 1982. It is stated in the

judgment that the child was informed in an informal and adequate manner

that he did not have to give evidence against the applicant, his

step-father, and that he answered he wished to give evidence. It

follows from a handwritten note in the minutes that the presiding judge

said to the boy: "You do not have to say anything as your daddy is

concerned" ("Du mußt aber nichts erzählen, es geht ja um deinen Papa").

The Court rejected the defendant's motion to ask the mother whether she

agreed on behalf of her son that he give evidence. The Court stated

that only the witness personally had to decide whether or not to give

evidence. It pointed out that otherwise evidence would be difficult

to obtain in cases of ill-treatment of children by their parents.

The boy's evidence was considered to be trustworthy despite

certain contradictions which existed between his statements at the

trial and those made before the police and the investigating judge.

The Court found no indication that the boy had a tendency to lie

or had a personality default and was susceptible. Therefore it

rejected the defendant's request to have the boy examined by a

psychiatrist.

The Court also considered expert evidence submitted by a medical

doctor and a pyrotechnic expert. Both experts had inter alia stated

that the victim's dress had been soaked with the inflammable liquid.

The pyrotechnic expert had further stated that it was most likely (hohe

Wahrscheinlichkeit) that the fire had been caused by an open flame and

could not have been caused by a glowing cigarette. This statement was

corroborated by the medical expert who pointed out that the

efore it

hands were uninjured while they would have been affected by the flames

had she herself spilled the liquid and then inadvertently caught fire

from a cigarette held in a hand.

The Court concluded that the statements made by the applicant's

stepson and the expert evidence at the trial, the result of the police

inquiries and the statements made by the applicant's wife before the

police clearly proved the applicant's guilt and refuted his version of

the event.

Insofar as the defence had produced a written declaration signed

by the applicant's wife before a public notary exonerating the

applicant, the Court stated that if the applicant's wife really

regretted to have him wrongly incriminated by her previous statements

before the police she could have given evidence to that effect at the

trial. The fact that she preferred not to give evidence showed, in the

Court's opinion, that she had made her written declaration because she

was afraid of the applicant who had a criminal record of violent

aggressions.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) was

rejected by the Supreme Court (Oberster Gerichtshof) on 21 February

1989. The Court stated that it was for the trial court to determine

whether or not a child was apt to give evidence and it was for the

child and not his legal representative to decide whether or not to

avail himself of the right not to give evidence. The Supreme Court

agreed with the trial court that there had been no reason to have the

child examined by an expert.

Insofar as the applicant had alleged that documentary evidence

relied on in the trial court's judgment had not been read out at the

trial, the Supreme Court found that this allegation contradicted by the

minutes of the trial which contained handwritten corrections made by

the trial court's presiding judge stating that the report in question

was read out. The applicant's complaint on this point was therefore

rejected as being unsubstantiated (aktenwidrig - nicht gesetzmässig

ausgeführt).

The applicant's appeal (Berufung) was likewise to no avail

whereas the Vienna Court of Appeal (Oberlandesgericht) on 10 April 1989

increased his sentence to fourteen years' imprisonment following the

appeal of the public prosecution.

COMPLAINTS

The applicant maintains that, contrary to the handwritten notes

in the minutes, the police report was not read out at his trial. He

considers that Article 6 para. 1 of the Convention was thereby

violated. Furthermore he argues that this provision was also violated

in that the principal witness against him was not in a position to

grasp the meaning and importance of his right to refuse to give

evidence. Therefore his legal representative should have decided on

the witness' behalf whether or not this right should be invoked by the

witness.

THE LAW

1. The applicant has mainly complained that his conviction of having

caused grievous bodily harm to his wife is principally based on the

evidence given by his step-son, a boy who was at the time five years

old. He invokes the right to a fair hearing under Article 6 para. 1

(Art. 6-1) of the Convention and argues that the legal representative

of the boy, namely his mother, should have had to decide whether or not

the boy ought to have made use of his right as a relative of the

accused not to give evidence against him.

The Commission first observes that the admissibility of evidence

is primarily a matter for regulation by national law. The Commission's

task is therefore not to express a view as to whether the statements

in question were correctly admitted and assessed but rather to

ascertain whether the proceedings considered as a whole, including the

way in which evidence was taken, were fair (Eur. Court H.R., Kostovski

judgment of 20 November 1989, Series A no. 166, para. 39).

The Commission notes that in the present case the trial court and

the Supreme Court carefully examined the legal problem of whether a

child, being called as witness in criminal proceedings against a

parent, could be left to decide himself whether or not to make use of

his right not to give evidence. The Austrian courts considered that

the right in question was of a very personal nature (höchstpersönliches

Recht) and that therefore the child himself and not his legal

representative was entitled to decide whether or not to make use of it.

The Commission cannot find this reasoning to be incompatible with the

notion of a fair hearing. It further notes that the trial court's

presiding judge informed the boy that he did not have to make any

statements as his step-father was concerned. The boy replied that he

wished to make a statement and he then gave evidence in the presence

of the applicant and his defence counsel. The trial court carefully

examined the question whether the witness was reliable. It based its

findings of the applicant's guilt not only on the boy's statements but

also on further evidence, in particular expert evidence.

It is true that the trial court also based its findings on

declarations made by the applicant's wife before the police while at

the trial she refused to give evidence. However, the use of statements

obtained 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, particularly by giving the

defendant adequate and proper opportunities to challenge the evidence

in question. (Eur. Court H.R., Asch judgment of 26 April 1991, Series

A, No. 203, page 10, paras. 27-31).

In the present case the applicant was given the opportunity to

discuss his wife's version of the events and to put his own. However,

in the light of the expert evidence, the result of the police

inquiries, the statements made by the applicant's wife before the

police and the statements of his step-son at the trial, the applicant's

version was found to be clearly refuted.

In these particular circumstances it cannot be found that the

proceedings in question disclose any appearance of a violation of

Article 6 (Art. 6) of the Convention on account of the hearing of a

five-year-old witness.

2. The applicant has further complained that a police report on which

the trial court's judgment also relied was, contrary to the statements

in the minutes, not read out at the trial. However, the Supreme Court

rejected this complaint as being contradicted by the minutes and the

applicant has not produced any evidence proving his allegation either

before the Supreme Court or before the Commission. The Commission

further observes that the use as evidence of statements obtained at the

pre-trial stage is not in itself inconsistent with Article 6 (Art. 6)

(see judgment cited before, para. 41). In the present case the trial

court relied on various evidence and not exclusively on the report in

question. There is consequently again no appearance of a violation of

Article 6 (Art. 6).

3. 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to thePresident of the

First Chamber First Chamber

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

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