Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16002/90

by A.K.

against Austria

The European Commission of Human Rights sitting in private on

18 February 1992, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs.G. H. THUNE

SirBasil HALL

MM.C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

Mr. J. RAYMOND, Deputy 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 27 November 1989

by A.K. against Austria and registered on 17 January 1990 under file

No. 16002/90;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to:

-the observations submitted by the respondent Government on

26 February 1991 and the observations in reply submitted by

the applicant on 22 April 1991;

-the parties' submissions at the oral hearing of

18 February 1992.

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1952 and living in

Linz. He is represented by Mr. W. Moringer, a lawyer in Linz.

The facts agreed between the parties may be summarised as

follows.

The applicant was accused of having bought between December 1988

and 18 January 1989 a total of 3gr. of heroin from a couple, M. and Ch.

W., who were being prosecuted in separate proceedings.

The trial started on 19 April 1989 but was adjourned after the

applicant had pleaded not guilty. He was then summoned to appear on

30 May 1989 to give evidence at the trial against M. and Ch. W. who

stood charges of drug dealing in several cases.

At the hearing of 30 May 1989 M. W. denied having sold heroin to

the applicant, while his wife admitted having done so. Contrary to her

initial confession she alleged, however, that the deal concerned 2gr.

and not 3gr. of heroin.

Subsequently the applicant was heard as a witness. He was

informed of Section 153 of the Austrian Code on Criminal Procedure

(Strafprozessordnung - StPO) according to which a witness could refuse

to answer questions if the answer risked to expose him to criminal

prosecution, but which also empowered the Court to decide otherwise.

The applicant replied that in view of the criminal proceedings

pending against himself he was not prepared to give evidence. Thereupon

the Court gave an order denying him leave to abstain from giving

evidence. This order was based on the reasoning that a serious offence

was at issue while the applicant faced a charge of minor importance and

it was likely that the proceedings against him would be discontinued.

The applicant nevertheless continued to refuse to answer the

question put to him. He was therefore fined 3,000 AS and eventually

threatened with detention. As he still persisted in refusing to give

evidence, his detention for a period of five days was ordered and he

was immediately arrested. This decision was based on the ground that

it was important to ascertain whether M.W. or Ch. W., or both, had sold

heroin to the applicant. An appeal (Beschwerde) was rejected by the

Court of Appeal (Oberlandesgericht) in Linz on 2 June 1989 as being

inadmissible.

The applicant's detention lasted from 14.25 hrs. on 30 May 1989

to 14.25 hrs. on 4 June 1989. The fine was paid on 6 March 1990.

Meanwhile, the applicant had given evidence at a hearing on 25

January 1990 in the matter against M. and Ch. W. He had stated that

on two occasions he had bought heroin of less than 1gr. each time.

Following investigations in accordance with Sec. 17 of the Drug

Act, showing that the applicant did not need medical treatment and

care, the proceedings against him were provisionally discontinued on

20 December 1989 and a period of probation of two years was fixed.

At the suggestion of the Ministry of Justice, the Office of the

General Public Prosecutor (Generalprokuratur) lodged a plea of nullity

for the safeguarding of the law (Nichtigkeitsbeschwerde zur Wahrung des

Gesetzes) against the detention order of 30 May 1989. It was based on

the following grounds:

- that the quantity of heroin sold to the applicant was

unimportant while the total quantities in the remaining cases were

sufficient to constitute an aggravating factor;

- that the applicant's evidence was not needed as in the

investigation proceedings Ch. W. had confessed having sold 3gr. of

heroin to the applicant and the trial court based its conviction on

this confession and not on the statement eventually made by the

applicant as a witness;

- that as regards the accused M.W. the decisive evidence had been

the result of a secret telephone surveillance and not the evidence

given by the applicant;

- that in view of all these circumstances the trial court had

wrongly considered that the interests of justice prevailed over the

applicant's interest not to give evidence.

On 19 December 1990 the Supreme Court (Oberster Gerichtshof)

rejected the plea of nullity stating that the question of whether the

applicant had correctly been obliged to give evidence could not be

decided on the basis of the result of the trial; it had to be decided

on the basis of the situation at the moment when the trial court took

the decision of 30 May 1989. At that moment it was not yet certain

whether Ch. W.'s confession sufficed to convict her. Furthermore the

applicant's evidence appeared to be of relevance for determining

whether Ch. W.'s husband was involved in the deal. Therefore the trial

court had not exceeded its discretionary power.

RELEVANT DOMESTIC LAW

[Translation]

The relevant provisions of the Drug Act read:

Section 17:

"(1) Where charges have been laid against a person for

the only reason that he or she has illegally acquired

or possessed for personal use an important amount of

drugs, the Public Prosecutor may, under the following

conditions, drop the charges provisionally for a

period of probation of two years.

(2) ...

(3) The dropping of the charge is possible under the

condition that:

1. information from the Ministry of Health and

Environment is obtained under Sec. 25, and

2. observations of the local health authorities are

submitted on the question whether

a. the person charged needs medical treatment or

supervision as to his/her state of health,

b. the necessary treatment or supervision is in the

given circumstances possible and not clearly without

any chances of success.

(5) ...

(6) Before dropping the charges the local authorities

and the suspect have to be informed. The latter has

at the same time to be instructed about the importance

and legal effects of the provisional discontinuance.

The period of probation is not taken into account in

calculating the period concerning the statute of

limitations."

Section 19

(1st sentence) "Where an indictment has already been

filed, Sections 17 and 18 apply accordingly for the

purpose of a discontinuance of the proceedings by the

court."

The relevant provisions of the Code on Criminal Procedure (StPO)

read as follows:

Section 57

"(1) The court competent under Sec. 56 to deal with

several connected criminal matters may order the

separation of proceedings against an individual accused,

if this appears to be indicated in order to avoid

delays or complications in the proceedings or to

shorten detention on remand of a suspect."

Section 150

"In principle everyone summoned as a witness has the

obligation to appear and to give evidence on those

circumstances known to him and relating to the matter

under investigation."

Section 153

"(1) If giving evidence or replying to a certain question

implies ... the danger of criminal prosecution ..., and

the witness therefore refuses statements he can be obliged

to give evidence if this is necessary in view of the

particular importance of his statement."

Section 160

"If the witness refuses to give evidence without statutory

reasons ... a coercive penalty (Beugestrafe) of up to

10,000 AS may be imposed and, if he then persists,

a coercive detention of up to six weeks may be ordered in

important cases ..."

The relevant provisions of the Austrian Criminal Code

(Strafgesetzbuch - StGB) read as follows:

Section 288

"(1) Everyone who as a witness ... gives false evidence

in court ... is punishable with imprisonment of up to three

years."

Section 290

"(1) He who gives false evidence (Sections 288, 289) ...

in order to avoid criminal prosecution against himself

... is not punishable, if he had a right not to give

evidence or could have requested to be granted leave not

to give evidence and if

1. he did not know this,

2. he did not invoke the right not to give evidence

fearing that this alone would already cause the

consequences referred to above,

3. he was wrongly ordered to give evidence ...

(3) The perpetrator is punishable even if the

requirements set out in para. (1) are given,

provided that the false evidence risks to cause

serious disadvantages to a third person and he could

reasonably havebeen expected to tell the truth."

COMPLAINTS

The applicant considers that the obligation to give evidence in

respect of events in connection with which criminal charges had been

laid against him violates the principle of a fair trial within the

meaning of Article 6 para. 1 of the Convention.

The applicant further alleges a violation of his right to liberty

as guaranteed by Article 5 para. 1 of the Convention.

In addition he invokes Article 5 para. 4 on the grounds that

there had been no possibility of obtaining a judicial review of the

detention order.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 November 1989 and registered

on 17 January 1990.

On 8 June 1990 the Commission decided to communicate the

application to the respondent Government for observations on its

admissibility and merits. After extension of the time-limit the

respondent Government's observations were submited on 26 February 1991.

The applicant replied on 22 April 1991.

On 17 October 1991 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application. At

the hearing which was held on 18 February 1992 the parties were

represented as follows:

- for the applicant:

RechtsanwaltCounsel

Dr. Wolfgang MORINGER

Linz

- for the respondent Government:

Dr. Wolf OKRESEKAgent

Head of Department

Federal Chancellery

Dr. Susanna BOIGNERAdviser

Federal Ministry for Foreign

Affairs

Dr. Irene GARTNERAdviser

Federal Ministry of Justice

THE LAW

1.The applicant first complains that his right to a fair trial as

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention was

violated because he had been obliged to give evidence in a criminal

matter in which he was involved and, although in separate proceedings,

even indicted, and thereby to incriminate himself if he told the truth

or to be punished for giving false evidence if he had concealed his

involvement in the matter. He also considers that by deciding his

coercive detention and by imposing a coercive fine the Austrian court

determined a criminal charge against him.

The Commission considers that the case also falls to be examined

under Article 10 (Art. 10) of the Convention as the applicant alleges

that he was obliged against his will to disclose information

incriminating himself.

The Austrian Government point out that the applicant first argued

in his submissions of 22 April 1991 that the coercive measures taken

against him were criminal sanctions, while the final decision was given

by the Vienna Court of Appeal on 2 June 1989 which is more than six

months before. Consequently this complaint was lodged out of time

under Article 26 (Art. 26) of the Convention. They further argue that

the guarantees of Article 6 (Art. 6) of the Convention protected the

applicant only in the criminal proceedings against himself, not however

in the separate proceedings against M. and Ch. W. where he was heard

as a witness.

The Government further submit that, in any event, the coercive

measures in question neither constituted a punishment nor had any

preventive purpose.

Finally the Government deny a violation of Article 10 (Art. 10).

They consider that if this provision should apply, the measures in

question would be justified under paragraph 2 as being necessary in a

democratic society for the prevention of crime.

The Commission considers that this complaint raises complex

issues of law under the Convention and in particular under Articles 6

and/or 10 (Art. 6, 10), the determination of which must be reserved to

an examination of the merits. This part of the application cannot

therefore be rejected as manifestly ill-founded.

2.The applicant further alleges a violation of his right to liberty

as guaranteed by Article 5 para. 1 (Art. 5-1) of the Convention. He

argues that subparagraph 1 (b) of this provision, which allows the

lawful arrest or detention of a person for non-compliance with the

lawful order of a court or in order to secure fulfilment of any

obligation prescribed by law, was not applicable in his case because

he had no obligation to give evidence as he had to be considered as an

accused and not as a witness in the criminal proceedings brought

against him and his drug suppliers, M. and Ch. W. He again contends

that the measures in question had the character of a punishment.

In addition he invokes Article 5 para. 4 (Art. 5-4) on the

grounds that there had been no possibility of obtaining a judicial

review of the detention order.

The respondent Government submit that the applicant's detention

was ordered in compliance with Austrian law. It was for the Austrian

courts to balance the applicant's interest to remain silent against the

interest of the public to have the important charges against the couple

M. and Ch. W. determined. In striking this balance the courts had not

acted arbitrarily. Therefore the detention was justified under Article

5 para. 1 (b) (Art. 5-1-b).

Furthermore there was no necessity of judicial control as the

detention had been ordered by a court and had been limited to a very

short period.

The Commission finds that these complaints likewise raise complex

issues of law under the Convention the determination of which must be

reserved to an examination on the merits. The remaining part of the

application cannot therefore be rejected as manifestly ill-founded.

No other grounds for admissibility have been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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