Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16156/90

by Karl BLECHA

against Austria

The European Commission of Human Rights sitting in private

on 7 June 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

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 19 January 1990

by Karl BLECHA against Austria and registered on 13 February 1990

under file No. 16156/90;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1933. He is a

market researcher and was Minister of the Interior from May 1983 until

February 1989. He is represented before the Commission by Mr. H.

Wildmoser, lawyer, of Linz. The facts of the application, as submitted

by the applicant's representative, may be summarised as follows.

On 7 March 1985 the Ministry of the Interior issued to Noricum

Ges.mbH ("NORICUM"), a wholly owned subsidiary of the State-owned

VOEST-Alpine Ag ("VOEST"), an export licence for the export

of specified arms and munitions to Libya. Rumours that the arms and

munitions were not in fact bound for Libya but for Iran, at the time

at war with Iraq, led to an internal investigation which did not

produce any material which could justify a prosecution or

revocation of the licence. The State Prosecution Service declined to

take up criminal proceedings instituted by private parties against

managers of VOEST and NORICUM.

On 2 March 1989 criminal proceedings were instituted against

18 managers of NORICUM and VOEST, alleging jeopardising Austrian

neutrality (Neutralitätsgefährdung), contrary to Article 320 para. 3

of the Criminal Code (Art. 320 Z13 StGB). Amongst other

applications, the State Prosecution Service requested that the

applicant be heard as a witness.

On 10 July 1989 criminal proceedings were instituted, on the

request of a private party, against the applicant, the then Federal

Chancellor and the then Minister for Foreign Affairs, alleging

suspicion of misuse of official authority and jeopardising Austrian

neutrality (Verdacht des Missbrauches der Amtsgewalt und

Neutralitätsgefährdung) contrary to Articles 302 and 320 para. 3 of

the Criminal Code. The applicant was alleged to have known of and

condoned the export of the arms and munitions to Iran.

Further proceedings were instituted by a private party (L.)

against V. and against the national leadership of a political party

(P.) alleging defamation and a failure to rectify adequately (üble

Nachrede and Nichtveröffentlichung einer Entgegung oder einer

nachträglichen Mitteilung) contrary to Article 111 of the Criminal

Code and Section 14 (1) of the Media Act (Mediengesetz).

By notice (Verständigung) of 24 August 1989 the applicant was

informed that he should be prepared to appear as witness in the

proceedings against 18 managers of NORICUM and VOEST, but that the

date and subject-matter of his appearance could not yet be fixed. The

applicant's request of 2 November 1989 that the notice be withdrawn

was refused by the Linz Regional Court (Landesgericht) on 13 November

1989. The applicant had argued that he had to be considered as a

"co-accused" (Mitbeschuldigter) in the proceedings against the 18

managers because the cases had the same factual basis. The applicant

contended that although technically the proceedings against him were

separate, these in fact related to the same complex of events. The

court did not accept these arguments. It found that the proceedings

against the applicant involved allegations of abuse of official

authority, and for this reason alone could not be considered as

identical with the proceedings against the 18 managers. Moreover, the

proceedings against the applicant had only been instituted after the

18 managers had been accused. The court accepted that it was not

permissable that a person should take part both as witness and

defendant in a trial, but this was not the case. The court found that

Article 153 of the Code of Criminal Procedure (see below) relates only

to specific questions, and requires the court to consider the

conflicting interests - it was clear that in order to balance the

conflicting interests the person concerned had to be present. The

court concluded that the applicant would have to be present at the

trial, and would then have to decide whether to invoke Article 153.

On 29 September 1989 and 3 October 1989 the applicant was

summoned by the Vienna Regional Court (Landesgericht) to appear on 10

October 1989 as a witness at the trial of V. and P.

On 10 October 1989 the applicant was asked whether he had

spoken with L. about the rumours concerning VOEST's and NORICUM's

business in Iran. He was also asked for L.'s comments. He declined to

reply, invoking Article 153 of the Code of Criminal Procedure. The

event considered Article 153, paragraph one of which reads, as far as

relevant, as follows:

(Original)

"§153. (1) Wenn die Ablegung des Zeugnisses oder die

Beantwortung einer Frage für den Zeugen ... Schande oder

die Gefahr strafgerichtlicher Verfolgung ... mit sich

brächte, und er deshalb das Zeugnis verweigert, so soll er

nur zum Zeugnis verhalten werden, wenn dies wegen der

besonderen Bedeutung seiner Aussage unerlässlich ist."

(Translation)

"If giving evidence or replying to a question would harm the

witness's ... reputation or entail a risk of criminal

proceedings against [him], ... and if he refuses to give

evidence for this reason, he shall only be compelled to give

evidence if the special importance of his testimony makes

this essential."

In balancing the conflicting interests, the court found of

particular relevance the importance of the case in the public sphere

and the likelihood that the applicant, and he alone, would be able to

shed light on it. Moreover, the court found that it could reasonably

expect the applicant to answer the questions as he was a former

Minister of the Interior and could be expected to behave particularly

responsibly.

The court also stated that, if it granted his request not to

be compelled to give evidence now, he would perhaps never give

evidence, as even if the proceedings against him were not continued

with, there was always the possibility that they would be re-opened.

The court fined the applicant AS 8.000 for refusing to give

evidence (Article 160 of the Code of Criminal Procedure).

The applicant's appeal (Beschwerde) to the Vienna Court of

Appeal (Oberlandesgericht) was rejected as no appeal lay in such

circumstances.

COMPLAINTS

The applicant alleges violation of Article 6 paras. 1 and 3 of

the Convention.

He complains that he is required to give evidence in

proceedings which were formally against third parties, but in fact

concern the same events as those at the basis of proceedings against

him. In such a situation he is required to run the risk either of

incriminating himself or of perjuring himself.

In particular, the applicant alleges that, as the documents in

his case were contained in the files of the case involving the 18

managers of NORICUM and VOEST, it is clear that the proceedings

against him are identical with those against the managers. He points

to the inadequate position of a person who is a co-accused or a de

facto co-accused (materiell Mitbeschuldigter) in Austrian law.

The applicant considers that, because he has no remedy in

respect either of the notice to attend in the case against the 18

managers or in respect of the fine in the case against V. and P.,

he must be regarded as having exhausted domestic remedies.

THE LAW

The applicant alleges violation of Article 6 paras. 1

(Art. 6-1) and 3 (Art. 6-3) of the Convention which provide, as far as

relevant, as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law.

...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(b) to have adequate time and facilities for the

preparation of his defence;"

To the extent that the applicant complains about the

proceedings against him for refusal to give evidence in L.'s

private prosecution against V. and P., and the attendant fine, and

even assuming such proceedings relate to the determination of a

criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No.

7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). Accordingly, the

applicant may not complain as to the result of those proceedings, and

he makes no specific procedural complaints.

This part of the application is therefore manifestly

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

Convention.

To the extent that the applicant's complaint relates to the

imposition of a fine in a context of proceedings in which he is

involved, the Commission notes that the proceedings in question must

be either the proceedings against him or, if his contentions

concerning his status as "de facto co-accused" (materiell

Mitbeschuldigter) are accepted, the proceedings by L. against V. and

P. and the proceedings against the 18 managers of NORICUM and VOEST.

The Commission notes that all three sets of proceedings are still

pending, and recalls that it can only assess the fairness of criminal

proceedings when it is able to consider them in their entirety (cf.

No. 9000/80, Dec. 11.3.82, D.R. 27 p. 127, with further references).

Moreover, an acquittal will normally be regarded as rectifying

procedural errors alleged to have violated the Convention (cf. No.

5572/72, Dec. 8.7.73, D.R. 1 p. 44; No. 8083/77, Dec. 13.3.80, D.R. 14

p. 223). Until the relevant proceedings have finished, with the

exhaustion of domestic remedies as required by Article 26 (Art. 26) of the

Convention, it is not possible to consider whether, either in respect

of the proceedings formally against the applicant, or in respect of

the complex of proceedings involving the applicant, Article 6 (Art. 6)

has been complied with in this respect, or whether any alleged

violations that may have taken place have been remedied by a

subsequent acquittal.

This part of the application is therefore premature and must

be rejected as manifestly ill-founded in accordance with Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BLECHA v. AUSTRIA

BLECHA v. AUSTRIA