Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13129/87

by Günter FRICK

against Austria

The European Commission of Human Rights sitting in private

on 15 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

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 13 July 1987

by Günter Frick against Austria and registered on 5 August 1987 under

file No. 13129/87;

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

Rules of Procedure of the Commission;

Having regard to :

- the Commission's decision of 14 December 1989 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

20 April 1990 and the observations in reply submitted

by the applicant on 13 July 1990;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1957 and living

in Dafins, Vorarlberg. He is represented by Mr. W.L. Weh, a lawyer in

Bregenz.

The facts, as agreed between the parties, may be summarised as

follows.

On 12 June 1986 the applicant was convicted by the Regional

Court (Landesgericht) in Feldkirch of causing damage to the creditors

of a third person (Schädigung fremder Gläubiger, Sec. 157 of the Penal

Code - StGB), and attempted embezzlement (versuchte Untreue, Sec. 153

of the Penal Code). He was sentenced to 18 months' imprisonment.

According to the findings of the Regional Court the applicant,

having been assigned as a business consultant in order to save a

company in financial difficulties, had put aside funds of this company

to the detriment of its creditors. The company eventually went

bankrupt. The daughter of the company's owner, Mrs. S., was

convicted as an accomplice to the offence of causing damage to the

company's creditors. The Regional Court further found it established

that by manipulating bills the applicant had faked documents and

attempted to embezzle funds to the detriment of Mrs. S., in a new firm

which he had set up together with her, by transferring those funds to

a separate bank account without Mrs. S.'s knowledge.

The applicant had admitted to having established a separate

account in order to put aside company money (Schwarzgeld) without

the owner's knowledge. He alleged that the firm had already used this

practice before he took over its management. This latter allegation

was considered to be of no relevance.

The applicant had also admitted to having paid money, obtained

by faked documents or cash payments, into a sub-account without the

knowledge of his accomplice, Mrs. S.

The fact that he had been the only responsible manager of the

firm was considered proven on the grounds of statements made by the

owner, S., as witness and those made by the owner's daughter, Mrs. S.,

as co-accused.

As regards the establishment and purpose of the sub-account,

the Regional Court based its findings on the evidence given by three

other witnesses.

The applicant lodged an appeal (Berufung) and a plea of

nullity (Nichtigkeitsbeschwerde).

On 1 August 1986 the trial court files concerning the case

were transmitted to the Supreme Court (Oberster Gerichtshof).

Immediately after their arrival the Judge Rapporteur ordered that

they be transmitted to the Attorney General (Generalprokurator)

in accordance with Sec. 285c of the Code of Criminal Procedure

(Strafprozessordnung - StPO).

On 10 October 1986 the Attorney General submitted observations

and at the same time returned the files to the Supreme Court.

On 13 January 1987, after a hearing of the case, the Supreme

Court confirmed the applicant's conviction while reducing his sentence

to 15 months. Before the hearing a draft decision had already been

prepared by the Judge Rapporteur which, in substance, formed the basis

of the Court's judgment.

In his plea of nullity the applicant complained, inter alia,

that his request to hear witness R. had been disregarded. He

submitted that R. could have confirmed that he never provided

Mrs. S. with a credit. Consequently, so he argued, the denial of

Mrs. S. that she had set aside money of her father's company before

the applicant took over its management appeared not to be credible and

therefore her statements incriminating him were likewise unreliable.

The Supreme Court stated in this respect that it had not been

necessary to hear witness R. and another witness named in this context

by the applicant because the alleged fact that Mrs. S. had illicitly

set aside money even before the applicant had been assigned as

business consultant was of no relevance and in any event the trial

court had taken into account that, contrary to statements made by

Mrs. S., she had possibly acted as alleged by the applicant.

The applicant also complained, inter alia, that his request for

an economic expert opinion had been rejected. He submitted that an

expert opinion would have shown that he had a claim of monthly 50,000 AS

for his management services and consequently the payments made to the

clandestine account were due to him. Furthermore, an expert opinion

would have shown that the faking of invoices only concerned those made

for window-dressing while he had kept the original documents to

correct the balances later.

The first of these arguments was rejected by the Supreme Court

on the ground that the payments in question had not been made directly

to the applicant. Therefore the money remained an asset of the

company and its deposit on a clandestine account only served the

purpose of withholding it from the company's creditors. Accordingly

it was of no relevance whether the applicant had a claim of 50,000 AS

per month. The Supreme Court further referred in this context to its

earlier reasoning that the question was of no relevance whether the

applicant only continued the company's common practice of setting

aside money on a special account. The argument concerning the faking

of documents was considered irrelevant by the Supreme Court which

stated in this respect that the trial court did in fact accept the

allegation that the original documents had been kept by the applicant.

However, the applicant had not alleged that he had taken them into

account in the book-keeping from the beginning of his assignment, as

would have been his duty. Therefore, the allegation which he wished

to have confirmed by an expert was also of no relevance.

The applicant's conviction and sentence became final by the

Supreme Court's above decision, but the applicant subsequently tried

to use a number of extraordinary remedies. They included:

- A request for the re-opening of the criminal proceedings on

the basis of new evidence, i.e. the statement of a witness, whose

hearing at the applicant's trial had been refused, and which allegedly

confirmed that Mrs. S.'s statements at the trial had been wrong. On

10 May 1988 the request was rejected by the Review Chamber (Ratskammer)

of the Regional Court under the presidency of the same judge who had

presided over the applicant's trial. Upon the applicant's appeal,

the Court of Appeal on 8 November 1988 confirmed this decision,

relying, inter alia, on submissions by the prosecution which had not

been communicated to the defence and which the applicant claims were

factually wrong. The applicant subsequently suggested to the

Attorney General to file a plea of nullity for safeguarding the law,

alleging that the Court of Appeal should have quashed the first

instance decision on the ground that the presiding judge was not

impartial, and that it should have respected the principle of

equality of arms by communicating the prosecution's submissions to

the defence. The Attorney General apparently refused to act upon

this suggestion.

- Several requests for staying the enforcement of the

applicant's sentence. The first request was rejected by the Regional

Court on 6 April 1987 and by the Court of Appeal on 26 May 1987. The

second request was rejected by the Regional Court on 20 July 1987, but

allowed by the Court of Appeal on 25 August 1987, pending the

examination of the applicant's above request for the re-opening of the

criminal proceedings. After the latter request had been finally

rejected, the applicant was ordered to present himself at the prison

within 14 days. His request for a further suspension was rejected by

the Regional Court on 19 December 1988. As the applicant had in the

meantime left Austria, the Regional Court on 14 March 1989 issued an

international warrant of arrest against him. The applicant was

apparently apprehended on the basis of this warrant and subsequently

served his sentence.

- A request for the retroactive reduction of the applicant's

sentence, having regard inter alia to the fact that concerning the

offences in question the qualifying amount of damage had in the

meantime been raised from 100,000 AS to 500,000 AS and that a

different court would now be competent and a less serious penalty

applicable. This request was rejected on 14 March 1989.

In connection with the above proceedings the applicant

repeatedly challenged the competent judge of the Regional Court of

Feldkirch who had also presided over the applicant's trial. He

declared himself particularly aggrieved by the fact that this judge

was not excluded from examining the request for the re-opening of the

criminal proceedings although this involved a reassessment of the same

judge's conduct of the trial, in particular as regards the refusal to

hear the witness on whose depositions the applicant now wished to

rely. The applicant further alleged bias on the part of this judge in

the way in which he dealt with the various requests of the applicant,

including inter alia the refusal of access to the file to the

applicant's new lawyer despite repeated reminders, the decision on the

first request for staying the enforcement of the sentence before

access to the file had been granted, and the decision on the third

such request without a previous hearing of the defence. The applicant

also submitted that the attitude of this judge concerning his new

requests showed that the judge had been biased against him already at

the time of the trial when all requests for evidence of the defence

had been rejected while those of the prosecution had been allowed.

However, the President of the Regional Court rejected all challenges,

noting that the judge in question did not consider himself biased and

that it was not sufficient that the applicant was dissatisfied with

his legal rulings. The question of bias at the trial could not be

considered because the applicant had not challenged the judge at that

time.

Although a remedy against the decisions of the Regional

Court's President was excluded by virtue of Section 74 para. 3 of the

Code of Criminal Procedure, the applicant nevertheless tried to appeal

against the first two (of altogether ten) of his decisions. He

claimed that, having regard to Article 13 of the Convention, the

exclusion of a remedy was unconstitutional and that the Court of

Appeal should therefore institute norm control proceedings concerning

Section 74 para. 3. However, on 25 August and 4 December 1987 the

Court of Appeal declared the appeals inadmissible. The applicant's

suggestions to provoke a decision of the Supreme Court on this

question by a plea of nullity for safeguarding the law were not taken

up by the competent prosecution authority (10 July 1987) and the

Federal Ministry of Justice (19 April 1988).

COMPLAINTS

1. As regards the trial before the Regional Court, the applicant

complains that the Court rejected all his requests for evidence

(including requests for the hearing of two witnesses to shake the

credibility of Mrs. S., and a request to hear a bookkeeping expert) while

it accepted all requests for evidence of the prosecution. In this

respect he invokes Article 6 para. 3 (d) and the principle of equality

of arms enshrined in Article 6 para. 1 of the Convention. He

considers that the latter principle was violated because the

prosecution had been in a more favourable position than the defence

during the preliminary investigation where it could collect all kinds

of evidence, including evidence on hitherto unknown facts ("Erkundungs-

beweis") while the defence was required to indicate the facts it

wanted to prove by any means of evidence, thus making it impossible to

offer witnesses whose statements could not be foreseen and who could

not previously be contacted by the defence because this would be

regarded as an inadmissible attempt to influence them.

2. The applicant further submits that the presiding judge of the

Regional Court was not impartial as required by Article 6 para.1. By

rejecting all requests for evidence of the defence and admitting those

of the prosecution he showed bias against the applicant which,

however, could not be challenged under Austrian law on this basis.

According to the applicant the biased attitude of the presiding judge

was later confirmed by the manner in which he dealt with the

applicant's various requests after his conviction.

3. As regards the Supreme Court proceedings, the applicant

complains that his right to a fair hearing under Article 6 para. 1 and

in particular the principle of equality of arms enshrined in this

provision was violated. The Supreme Court's judgment was ready before

the hearing of the parties which thus was merely a formal exercise.

Moreover, he alleges that the draft judgment was made available to the

Attorney General who therefore was in a more favourable position than

the defence when submitting his written and oral pleadings to the

Supreme Court.

4. As regards the above criminal proceedings, the applicant

further alleges a violation of Article 7 of the Convention in that

concerning the criminal offences in question the qualifying amount of

damage had been fixed by legislation of 1972 while due to the

inflation these amounts no longer corresponded to the economic

realities at the time of the applicant's conviction. They were

subsequently increased by new legislation in 1987.

5. Finally, the applicant complains of the proceedings on his

request for the re-opening of the criminal proceedings. He is aware of

the Commission's constant case-law according to which re-opening

proceedings do not as such come within the scope of Article 6, but

claims that in the present case these proceedings must be considered

together with the initial criminal proceedings in which the principle

of equality of arms was disregarded by failing to hear the witness on

whose statement the defence now wished to rely. In this situation the

principle of equality of arms should at least have been respected in

the re-opening proceedings. However, also in these proceedings the

applicant's requests for evidence were unjustifiedly rejected. The

prosecution submitted a factually wrong statement which was not

communicated to the defence. The prosecution also participated in the

Court of Appeal's hearing from which the defence was excluded.

6. The applicant also complains that in the re-opening

proceedings the Regional Court was presided over by the same judge who

had been the presiding judge at the applicant's trial and who

therefore could not be regarded as being impartial. The applicant

challenged this judge, but although it was recognised by the President

of the Regional Court (and the Federal Minister of Justice) that it

was unsatisfactory that the law did not provide for the disqualification

of a judge on this ground, his challenge was rejected and there was

no further effective remedy against this decision. The applicant

claims that concerning bias of a judge the Austrian system is based on

a subjective approach (whether the judge concerned considers himself

biased) whereas the Convention would require an objective approach

(whether the public and the accused may have legitimate doubts as to

the impartiality of the judge).

RELEVANT DOMESTIC LAW

The following Articles of the Code of Criminal Procedure

(StPO) are of relevance.

Article 285

"(1) ... The appellant must in his plea of nullity

indicate each particular alleged ground of nullity

in a distinct manner ..."

Article 285c

"(1) The Supreme Court deliberates on a plea of nullity

submitted in accordance with Article 285 (2) in a non-public

hearing only after having heard the Attorney General and if

the Attorney General or .. the Judge Rapporteur requests a

decision in accordance with Articles 285d, 285e and 285f."

Article 290

"(1) The Supreme Court only takes cognizance of the grounds

of nullity which have been stated by the appellant expressis

verbis or in substance ... "

Article 60 (3) and (6) of the Supreme Court's rules of

procedure (Geschäftsordnung) provides:

"(1) ...

(2) ...

(3) In case the files have to be transmitted to the Attorney

General for observations or formulation of motions ... or at

their request prior to dealing with the matter, all documents

which may contain indications as to the Court's deliberations

or the decision which it is about to take (draft decision,

statements of members of the Chamber, etc.) have to be

retained unless a judge orders otherwise.

(4) ...

(5) ...

(6) If a hearing is fixed, only the summons (Ausschreibungs-

formular) is brought to the notice of the Attorney General

in order to inform him of the date. The files are only sent

at that time if a judge so orders."

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 July 1987 and registered

on 5 August 1987. On 14 December 1989 the Commission decided to

communicate the application to the respondent Government for

observations on its admissibility and merits.

After an extension of the time-limit the Government's

observations were submitted on 20 April 1990 and the applicant's reply

on 13 July 1990.

THE LAW

1. The applicant first complains that his requests for the

hearing of two witnesses in order to shake the credibility of the

statements of Mrs. S. and for an economic expert opinion have been

rejected.

Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) guarantees to

everyone charged with a criminal offence the right to a fair trial and

to obtain the attendance and examination of witnesses on his behalf.

The question of the relevance of evidence which the accused

seeks to adduce is, however, a matter for the domestic judge and the

control under the Convention is limited to an examination as to

whether the proceedings as a whole, including the way in which

prosecution and defence evidence was taken, were fair as required by

Article 6 para. 1 (Art. 6-1) (Eur. Court H.R., Barbera, Messegué and

Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para.

68).

The Commission notes that the trial court considered the

evidence, which the applicant wanted to adduce, as being of no

relevance. The Supreme Court carefully examined the applicant's

complaint on this matter and confirmed the trial court's view.

In the light of the parties' observations the Commission

cannot find that the domestic courts thereby acted arbitrarily and

disregarded evidence which would have been vital for the determination

of the charges laid against the applicant.

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 furthermore alleges that the trial court's

presiding judge had been biased against him.

However, he failed to raise a motion of challenge during the

trial. Also he did not allege in his plea of nullity that the judge

had been partial. It would therefore appear that in this respect he

did not exhaust domestic remedies as required by Article 26 (Art. 26)

of the Convention.

In any event the applicant's arguments on this point are

related to his complaint that the trial court disregarded evidence

which was alleged to be favourable to him. These submissions have

already been examined and it was found that they do not disclose any

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

The present complaint must therefore likewise be rejected for the same

reason, even assuming that domestic remedies were exhausted.

3. As regards the proceedings before the Supreme Court the

applicant has, in his reply of 13 July 1990, extended his arguments

and alleges that the right to a fair trial, in particular the

principle of equality of arms, was violated because:

- the draft decision prepared by the Judge Rapporteur of the

Supreme Court was allegedly sent to the Attorney General before the

latter submitted observations on the plea of nullity;

- unlike the defence the Attorney General had the advantage

of knowing which chamber of the Supreme Court dealt with the case when

the observations in reply to the plea of nullity were prepared;

furthermore he disposed of more time for the preparation of these

observations than the defence had had for the preparation of the plea

of nullity;

- the oral hearing was a farce because a draft decision

rejecting the plea of nullity had already been prepared.

The Government submit that, in conformity with the Supreme

Court's Rules of Procedure (Geschäftsordnung), the Judge Rapporteur's

draft decision was prepared subsequent to the submission of the

Attorney General's observations in reply to the plea of nullity. They

explain that the Attorney General was then, in accordance with Article

60 (3) and (6) of the Supreme Court rules of procedure, sent only the

order fixing the date for the oral hearing. In addition they have

submitted a statement signed by the head of the Attorney General's

office confirming these submissions.

The applicant has not provided any proof to the contrary and

the Commission cannot in the circumstances of the case find any

appearance of a violation of the principle of equality of arms.

Furthermore, it cannot find that the knowledge of which

chamber of the Supreme Court would deal with the case offered any

undue advantage to the Attorney General.

As regards the time-limit for the preparation of the

applicant's plea of nullity, it was open to him to request an

extension. In any event the applicant has not alleged that he had

been unable fully to develop the grounds for his appeal and plea of

nullity within the time-limit given.

There is consequently nothing to show that the principle of a

fair trial was in any way violated in this respect.

Finally, as regards the preparation of a draft decision before

the hearing of the appeal and plea of nullity by the Supreme Court, the

Commission does not find this practice objectionable. It is a

normal task of a Judge Rapporteur to make a proposal on the question

of whether a plea of nullity is well-founded or not. This proposal

does not bind the other judges of the chamber and it is subject to

changes or amendments as a result of the oral hearing. In the

Commission's opinion it makes no vital difference whether the proposal

is simply limited to stating the views of the Judge Rapporteur or

whether it is laid out in the form of a draft decision.

This part of the application is therefore likewise manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Commission.

4. The complaint under Article 7 (Art. 7) of the Convention is

unsubstantiated. The Austrian courts undisputedly applied the

criminal law in the applicant's case as it was in force at the time of

his conviction. There is consequently no appearance of a violation of

the provision in question.

5. The Commission finally observes that Article 6 (Art. 6) partly

not applicable to proceedings determining the admissibility of a

request for the re-opening of criminal proceedings (cf. No. 7761/77,

Dec. of 8.5.78, D.R. 14, 171 with further references). To this extent

the application is incompatible with the Convention ratione materiae

within the meaning of Article 27 para. 2 (Art. 27-2).

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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FRICK v. AUSTRIA

FRICK v. AUSTRIA