Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16121/90

by Walter Franz Leopold JEDINGER

against Austria

The European Commission of Human Rights sitting in private

on 6 March 1991 , the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 15 July 1989

by Walter Franz Leopold JEDINGER against Austria and registered

on 2 February 1990 under file No. 16121/90;

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 1956 and at

present detained in prison in Krems.

The applicant complains that he was convicted and sentenced

on the basis of confessions obtained by the police under duress.

The facts submitted are as follows.

On 9 November 1988 the applicant was convicted by the Vienna

Regional Court (Landesgericht) of several counts of aggravated theft

(gewerbsmässiger schwerer Diebstahl) and other offences. He was

sentenced to seven years' imprisonment. Two co-accused received

sentences of two and four years' imprisonment.

According to the findings of the trial court, the applicant

was arrested by the police during the night of 25 October 1987 after

having tried to break into a shop. He was heard by the police on the

same day, the following day and 10 November 1987, and confessed a

series of burglaries and other offences.

Two months later, on 18 January 1988, he revoked his

confession alleging that it had been extorted by the police. He

stated that they had put a plastic bag over his head depriving him of

oxygen so that he repeatedly fell unconscious. Eventually he was made

to sign the reports drawn up by the police.

The trial court considered that this allegation was

contradicted by the statements of the investigating policemen. The

trial court also pointed out that when hearing a suspect who was

caught red-handed the police officers involved do not usually have at

their disposal detailed reports about offences committed elsewhere but

only circular notes with summary information. Normally other police

stations are requested to submit detailed reports once there is reason

to believe that an arrested person has committed several offences at

different places. This was, according to the evidence given by the

police officers involved in the applicant's case, the manner in which

the police proceeded. Therefore, the court concluded that the

detailed description in the applicant's confession after his arrest of

how the various offences had been carried out by him and and his

accomplices could only have been given by the person who in fact

perpetrated the offences. The fact that other persons had also

alleged to have been ill-treated by the police did not prove that the

applicant's confession had been extorted because in the other cases in

question no allegation was made that the confessions made under duress

did not correspond to the reality. The Court also noted that the

applicant had a criminal record with seven prior convictions for

similar offences, while the policemen in question were considered to

be credible. Furthermore, account was taken of the fact that the

applicant had been incriminated by the statements made before the

police by his co-accused who did not allege to have been ill-treated.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) was

rejected by the Supreme Court (Oberster Gerichtshof) on 27 April 1989.

Insofar as the applicant had alleged that he had been under police

surveillance for a considerable period and consequently the police had

had the opportunity to "prepare" his case, the Supreme Court noted from

the files that the police surveillance, caused by an informant, had

started on 24 October 1987 and ended with the applicant's arrest on

the following early morning. The remaining complaints were likewise

considered to be ill-founded. The Supreme Court only dealt with the

grounds of nullity submitted by defence counsel but refused to

consider submissions made by the applicant personally. The

applicant's appeal (Berufung) was rejected by the Vienna Court of

Appeal (Oberlandesgericht) on 14 June 1989.

A request for a retrial (Wiederaufnahme des Strafverfahrens)

was rejected by the Vienna Regional Court on 4 October 1989. An

appeal (Beschwerde) against this decision was rejected on 5 December

1989 by the Court of Appeal.

The applicant points out that Amnesty International reported

his case. The report has been submitted and is apparently based

exclusively on the applicant's own allegations. It states, inter

alia, that on 3 November 1987 the applicant was heard by the

investigating judge to whom he reported in detail about his

ill-treatment by the police. Nevertheless the investigating judge

allowed the police to interrogate the applicant again on 10 November.

Allegedly he was then again ill-treated by way of a plastic bag being

put over his head in order to produce a sensation of suffocation.

It follows from observations sent by the Austrian authorities

to Amnesty International that three of several witnesses named by the

applicant, who had allegedly also been ill-treated in the same manner,

were heard and did not confirm the applicant's allegations.

The applicant laid criminal charges against several police

officers. On 13 June 1990 he was informed by the Public Prosecution

that there were no reasons to institute criminal proceedings but that

he was free to request the Regional Court to institute investigating

proceedings and bring an action for damages.

COMPLAINTS

The applicant maintains that his conviction is based on

evidence obtained under duress by the police. He invokes Articles 3,

5, 6, 13, and 14 of the Convention.

THE LAW

The Commission has considered the applicant's complaints under

Article 3 (Art. 3) (prohibition of ill-treatment), Article 5 (Art. 5)

(personal liberty) and Article 6 (Art. 6) of the Convention (right to

a fair hearing in criminal cases).

The Commission is not competent to examine complaints

alleging that domestic court decisions are based on errors of law or

fact unless such errors involve a violation of Convention rights.

In the present case, the applicant's allegations of ill-treatment by

the police prior to his conviction and sentence were examined by the

competent Austrian courts and considered to be unfounded. The trial

court heard the responsible police officers and accepted their

statements denying the charges laid against them by the applicant as

credible. The trial court pointed out that in his confessions the

applicant had given details which only the person who had committed

the offences could have known. Furthermore, the applicant was

incriminated by his accomplices who did not allege that their

statements had been made under duress. The Commission further notes

that the applicant was arrested at night when attempting to break into

a shop.

The Commission has noted that Amnesty International reported

about the applicant's allegation of having been ill-treated by the

police. However, this report does not refer to any evidence, other

than the applicant's own statements, that would support the

applicant's allegations in this respect and he has not submitted any

other documents or other evidence to prove them. It further appears

from the information provided by the Government to Amnesty

International that three prisoners, named by the applicant as victims

of the ill-treatment by the police, denied having been ill-treated,

either with a plastic bag or in any other way.

In these circumstances there is nothing to show that the

applicant was arbitrarily arrested, contrary to Article 5 (Art. 5), or

ill-treated by the police, in violation of Article 3 (Art. 3), or

that, in the subsequent criminal proceedings against him, he was not

given a fair hearing, as required by Article 6 of the Convention, both

by the trial court and the courts which considered his plea of nullity

and his appeal.

In conclusion the Commission finds no appearance of a

violation of the Articles invoked by the applicant.

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 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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JEDINGER v. AUSTRIA

JEDINGER v. AUSTRIA