Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13866/88

by Walter BAYER

against Austria

The European Commission of Human Rights sitting in private

on 2 April 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

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 6 April 1988 by

Walter Bayer against Austria and registered on 13 May 1988 under file

No. 13866/88;

Having regard to:

- the observations submitted by the respondent Government

on 9 January 1989 and the observations in reply submitted

by the applicant on 3 March 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Austrian citizen born in 1940, is without

profession and currently detained in Garsten prison in Austria.

Before the Commission he is represented by Dr. H. Trenkwalder, a

lawyer practising in Linz.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows:

According to the bill of indictment of the Linz Public

Prosecutor's Office (Staatsanwaltschaft) of 7 August 1986, the

applicant and his former wife, now Mrs. K., ran a car garage together

after 1977. When the garage was closed in 1980, the debts amounted to

200,000 AS. From 1981 to 1983 the applicant sub-let rooms of his

flat in Traun for prostitution.

I.

The applicant was subsequently accused of robbery and murder

in respect of three persons. The first person was Mr. S., a former

employer of the applicant. According to the bill of indictment the

applicant and Mr. H., an acquaintance of the applicant, decided in

view of financial difficulties to tempt S. with a coin collection, and

then to rob and murder him. However, it could subsequently only be

determined that the offence was committed on 8 October 1980. The

details of how and where it was carried out were never unequivocally

established.

On 8 October 1980 S. withdrew 1,100,000 AS from two banks. He

told a bankteller that he was on to a "super deal" ("Supergeschäft").

S. also requested the opening of a bank deposit in another bank for

the same day, but he never turned up.

Mrs. H., as she then was, later told the authorities that on

one day in October 1980 Mr. H. had presented her at breakfast with

10,000 AS. She had noticed that his shoes were full of mud,

and that his overalls hanging in the workshop were unusually covered

with mud, as if somebody had slipped down a muddy hill in them. Mrs.

H. phoned the applicant's then wife who stated that the applicant had

also come home completely full of mud. Subsequently, Mr. H. bought his

wife a number of valuable presents and gave her larger sums of

household money. Mrs. H. also noticed that Mr. H.'s credit limit at

their bank had risen from 1,000 to 50,000 AS.

At about this time, the applicant's wife received from the

applicant a plastic bag containing 200,000 AS with the instruction to

invest the money. On 12 November 1980 this sum was paid in at a

bank. The applicant also paid debts of 80,000 AS and made valuable

presents to his wife. The applicant claimed that this wealth came

from gambling winnings and possibily from car sales.

The authorities also found in the applicant's car a banknote

wrapper which, according to the bankteller concerned, had almost

certainly been used when handing the money over to S. on 8 October

1980.II.

The other two persons in respect of whom the applicant was

later accused of having committed robbery and murder were Messrs. P.,

two Yugoslav citizens. According to the bill of indictment, the

applicant and Mr. H. met Messrs. P., who wanted to smuggle coffee

to Yugoslavia, in December 1981. In January 1982 Mr. H. again met

Messrs. P. and agreed to a transaction of five tons of coffee at

146 AS per kilo. Half the sum would be paid to Mr. H. upon

delivery of the goods, and the remainder after distribution. Mr. H.

later requested the whole sum in advance.

On 26 January 1982 Messrs. P. returned from Yugoslavia to

Austria and met Mr. H. and the applicant in St. V. The applicant's

neighbour later stated that on that day the applicant had asked him to

prepare a meal for his son after school as he would be absent and that

later the applicant and Mr. H. drove off together in a car. It

appears that Messrs. P. were then brought to the applicant's flat,

where, after a fight involving at least one shot, they were killed;

they were robbed of 310,000 AS. The applicant apparently put the

bodies in 200 litre barrels, which he later filled with fast drying

cement (Schnellbindermörtel). This he had bought on 26 January 1982

from the B. Company. The bodies were briefly stored in a garage and

later probably deposited on a refuse tip.

The bodies of Messrs. P. were never found. The Public

Prosecutor's Office explained that enormous bulldozers were constantly

filling the refuse tip. A search by hand was impossible, and a search

with machines involved inordinate costs with very small prospects of

success. Once the tip was opened, it would immediately start to burn.

Apparently in the night from 26 to 27 January 1982 Mrs. H.

was woken up at 5 am by their dog. On the staircase the dog indicated

to her that somebody was in their second flat, in the same house,

which was not being used. Mrs. H. looked inside and noticed the

applicant asleep. Later in the day, when cleaning the flat, Mrs.

H. found a plastic bag with a stack of 1,000 AS notes approximately

1,5 cm thick. She left this bag in the flat.

On the day before Messrs. P. arrived in St. V., the applicant

asked his neighbour for a loan of 1,400 AS in order to pay an

electricity bill to avoid the electricity being cut off. However, on

27 January 1982 the applicant paid three monthly rents to the house

proprietor. He subsequently paid approximately 5,000 AS into his

son's bank account. To a former wife, he paid alimony of 24,000 AS.

This person also reported that the applicant had come to her to have a

wound in his face treated. The neighbour and Mrs. H. later also

recalled the applicant's striking appearance, namely a lady's scarf

with red dots tied around his head, with the knot on top.

III.

Criminal proceedings were then instituted against Mr. H. and

later against the applicant who was intermittently detained on remand.

The applicant denied having murdered or robbed S. or Messrs. P. He

explained that on 26 January 1982 he had put his flat at the disposal

of Mr. H. who had wanted to negotiate a business deal with arms. The

applicant had been in the cellar when he heard a shot in the flat. He

had then gone upstairs and seen a man on the floor, whereupon Mr. H.

had pushed him out of the flat. Conversely, Mr. H. told the

authorities that the applicant had killed Messrs. P., apparently after

being threatened with a revolver.

During detention the applicant confided in Mr. D.C. who shared

his cell and later reported the conversations to the authorities. The

applicant then stated that he was very angry with Mr. H. who had

given up. The applicant also said that he had hidden the bodies for

good. When D.C. pointed out that this was not possible, the applicant

stated that it would require an earthquake to find them. He also

explained various other details, though never completing his

information, for instance in respect of barrels which were filled with

cement.

While examining the flat with chemical means for blood stains,

the authorities found various stains between the entrance and the

bedroom and also the cellar and the garage. The authorities concluded

that a lot of blood had been spilled there which later was cleaned up,

although traces remained. The authorities also discovered that a

certain Mr. L. had rented a shack next to the applicant's garage.

Mr. L. remembered that in spring 1982 or 1983 he had noticed a stench

coming from the garage which his brother said came from dead rats.

Later L. noticed a metal barrel on a refuse tip nearby.

During the investigations conducted against the applicant Mr.

H. was questioned on various occasions inter alia by the Linz Federal

Police Direction (Bundespolizeidirektion) between 1984 and 1986, first

as an accused and later in respect of the investigations concerning

the applicant, and his statements were recorded (Niederschrift).

On one such occasion on 12 February 1986 he claimed to make for the

first time a free confession as to the offences concerning Messrs. P.

in which he implicated the applicant.

The applicant's wife was questioned by the Federal Police

Direction on ten occasions between 24 July 1985 and 20 February 1986.

The applicant's son was questioned three times in 1985. Their

statements were recorded.

In separate proceedings Mr. H. was convicted of murder in

respect of S. at Linz and serious robbery in respect of Messrs. P. at

Linz and sentenced to life imprisonment.

On 7 August 1986 the Public Prosecutor's Office indicted the

applicant before the Jury Court at Linz Regional Court (Geschwore-

nengericht beim Landesgericht) of having committed the offences of

murder and serious robbery in respect of S. and Messrs. P. The

bill of indictment referred on 64 pages to the above circumstances and

to the results of a psychiatric examination according to which the

applicant was not mentally ill or debile.

The bill of indictment requested the hearing of 38 witnesses,

inter alia, the applicant's wife and son and Mr. and Mrs. H., as well

as the reading out, according to Section 252 of the Austrian Code of

Criminal Procedure (Strafprozessordnung, see below Relevant domestic

law and practice), of the documents compiled during the investigations

against the applicant and the file concerning Mr. H.

IV.

The trial lasted from 24 November until 11 December 1986.

During the trial the 51 witnesses and three experts were heard and the

Court undertook a visit of various localities. The minutes of the

trial extended to approximately 1000 pages.

At the trial the applicant's wife and his son availed

themselves of their right to refuse to give evidence according to

Section 152 of the Code of Criminal Procedure (see below Relevant

domestic law and practice). Thereupon the statements of the

applicant's wife and son made before the police were read out

in Court. The applicant's objections thereto were rejected by the

Court with reference to Section 252 para. (2) of the Code of Criminal

Procedure.

Mr. H. who was then serving his prison sentence was twice

present at the trial as a witness. However, he did not reply in

substance to questions put to him by the applicant. The applicant's

defence counsel eventually requested the Court to stop questioning H.

The Court reserved its position on this request though shortly

afterwards it stopped questioning H. The Court then read out in

particular the statement previously made by Mr. H. on 12 February

1986. It rejected the applicant's objections thereto with reference

to Section 252 para. 1 subpara. 3 of the Code of Criminal Procedure.

Other witnesses heard at the trial were Mr. L., who had rented

the shack next to the garage which the applicant had rented, and

Mr. G., the owner of the garage. Mr. H.'s former wife testified inter

alia as to the financial situation of the applicant and the latter's

wife and as to a night which the applicant's son had spent in her flat

in January 1980. Mrs. H. further testified as to a bag containing

1000 AS notes which the applicant had left there as well as to the

head bandage worn by the applicant in January 1982.

The witness N. confirmed that the applicant and H. had set out

on a trip to St. V. on 26 January 1982. Three witnesses were questioned

about the exact circumstances of the withdrawal of money by S.

Several witnesses commented on the applicant's gambling habits,

stating that he had only had small winnings. The house proprietor in

whose house the applicant had lived, his former wife, and Mr. D.C.,

his former cell-mate in prison, were also heard.

On 11 December 1986, the Jury Court decided by five votes

to three that the applicant was guilty of having killed S., together

with Mr. H. Here, the minutes of the Jury's deliberations mention as

reasons for its conclusions: "violent temper, money, acquainted with

S." The Jury decided by seven votes to one that the applicant had not

killed Messrs. P. The minutes of the Jury's deliberations state here:

"threatened by the Yugoslavs". By the same vote the Jury decided that

the applicant had robbed S., together with Mr. H., of the amount of

1,100,000 AS, and unanimously, that he had robbed Messrs. P., together

with Mr. H., of 310,000 AS. The minutes state here "inexplicable

prosperity" and "high debts", respectively. By six votes to two it

was found that the robbery of Messrs. P. had resulted in their death.

The minutes explain here: "bullet hole, blood traces". When putting

the questions to the Jury, the Court referred to offences which had

been committed either at Linz or at Traun in a manner not known more

closely (auf nicht näher bekannte Art und Weise).

The Court concluded in its judgment of 11 December 1986 that

in respect of S. the applicant had committed the offences of murder

and of serious robbery either at Linz or at Traun, and in respect of

Messrs. P. the offence of serious robbery resulting in death either at

Linz or at Traun, and sentenced him to life imprisonment. The

judgment did not adduce any reasons.

V.

Against this decision the applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) and an appeal (Berufung) to the Supreme Court

(Oberster Gerichtshof). He complained, inter alia, that a certain police

officer had not been heard as a witness and that the testimony of C.D.

was null and void inasmuch as the latter had been employed by the

police. The applicant also complained that the questions put to the

Jury did not specify where or how the offences had been committed.

Hence it was impossible to determine the considerations leading to the

Jury's conclusions.

The applicant further complained that the statements of his

wife and son made during the investigations were read out at the trial

after they had availed themselves of their right to refuse to give

evidence. Thus, he had not been able to question these witnesses. In

particular the statements of his wife concerning his finances and

other occurrences were highly incriminating. The applicant also

complained that, while documents were read out concerning Mr. H., it

had in fact not been possible at the trial to put questions to him.

Yet during the proceedings instituted against Mr. H., the latter gave

seven to eight versions of the applicant's role in the offences.

On 15 October 1987 the Supreme Court dismissed the applicant's

plea of nullity and appeal. The decision was served on the

applicant's lawyer on 12 November 1987.

In respect of the reading out of the witnesses' statements

recorded by security organs, the Supreme Court found that the Regional

Court had been obliged to do so according to Section 252 para. (2) of

the Code of Criminal Procedure, provided the document was of importance

to the matter, and that this was not incompatible with Article 6

para. 1 of the Convention. The Court observed that the applicant had

filed no application to contradict or weaken the witnesses' statements

which in any event played a subordinate role in view of the results of

the comprehensive evidence taken. The same held true in the Court's

view for Mr. H.'s testimony. As the latter had refused to comment on

the matters, the Regional Court had admissibly permitted the reading

out of the minutes according to Section 252 para. (1) subpara. 3 of

the Code of Criminal Procedure. Thus, the applicant's right to put

questions to the incriminating witnesses had not been impaired.

Finally, the Supreme Court considered that the questions put

to the Jury were as specific as this was possible and that they

individualised the offences sufficiently so as to avoid confusion with

another offence.

B. Relevant domestic law and practice

Section 152 of the Code of Criminal Procedure concerns

exemptions from the obligation to testify at the hearing. Para. 1

subpara. 1 states:

"(1) Von der Verbindlichkeit zur Ablegung eines

Zeugnisses sind befreit:

1. Die Angehörigen des Beschuldigten (§ 72 StGB),

wobei die durch eine Ehe begründete Eigenschaft einer Person

als Angehöriger aufrecht bleibt, auch wenn die Ehe nicht

mehr besteht."

"(1) There shall be exempted from the obligation to

testify:

1. the members of the accused's family (Section 72

of the Penal Code), and in this context a person who has

become a family member by marriage retains this status

even if the marriage no longer exists."

Section 252 of the Code of Criminal Procedure provides,

insofar as it is relevant to the present case:

"(1) Protokolle über die Vernehmung von Mitbeschuldigten

und Zeugen, dann die Gutachten der Sachverständigen dürfen

nur in folgenden Fällen vorgelesen werden:

...

3. wenn Zeugen, ohne dazu berechtigt zu sein, oder

wenn Mitschuldige die Aussage verweigern;

...

(2) Augenscheins- und Befundaufnahmen, gegen den

Angeklagten früher ergangene Straferkenntnisse sowie

Urkunden und Schriftstücke anderer Art, die für die Sache

von Bedeutung sind, müssen vorgelesen werden, wenn nicht

beide Teile darauf verzichten.

(3) Nach jeder Vorlesung ist der Angeklagte zu befragen,

ob er darüber etwas zu bemerken habe."

"(1) Minutes of the questioning of co-accused and

witnesses, as well as the opinions of experts, may only be read

out in the following cases:

...

3. if witnesses, without being entitled thereto,

or co-accused, refuse to give evidence.

...

(2) Reports on inspections and tests, previous criminal

convictions of the defendant, as well as other types of

documents and papers relevant to the matter must be read out

unless both parties agree that they should not be read out.

(3) After each reading out, the accused must be asked

whether he wishes to comment thereupon."

COMPLAINTS

The applicant complains under Article 6 paras. 1 and 3 (d) of

the Convention that he did not have a fair and public hearing in that

he could not put questions to the witnesses incriminating him, namely

his former wife and his son. At the trial, when these witnesses availed

themselves of their right to refuse to give evidence according to

Section 252 of the Code of Criminal Procedure, their statements made

before the police were read out, despite the applicant's objections.

This evidence must have played an important role for the decision,

though its precise relevance cannot be determined with certainty

insofar as the judgment of the Jury Court at the Linz Regional Court

did not contain reasons. The applicant raises the same complaints in

respect of the documents read out concerning Mr. H.'s trial, inasmuch

as Mr. H. did not reply to the questions put by the applicant.

The applicant observes that he was not present when these

witnesses were heard in the preliminary investigations. In his

submissions, the majority of legal writers in Austria share the view

that such minutes should only be read out at the trial if they have

been prepared in the framework of the same guarantees as the evidence

reached at the trial.

The applicant also points out discrepancies between the

conviction of Mr. H. which concerned offences committed in Linz, and

his own conviction which concerned offences committed in Linz or

Traun.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 April 1988 and

registered on 13 May 1988.

On 12 October 1988 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits

pursuant to Rule 42 para. 2 (b) of its Rules of Procedure.

The respondent Government's observations were submitted on

9 January 1989 and the reply thereto by the applicant on 3 March 1989.

THE LAW

The applicant complains that he did not have a fair and public

hearing in that he could not put questions to his former wife and his

son whose incriminating statements made before the police were

read out at the trial. The applicant raises the same complaints in

respect of documents read out concerning Mr. H.'s trial inasmuch as

Mr. H. did not reply to the questions put by the applicant. The

applicant relies on Article 6 paras. 1 (Art. 6-1) and 3 (d) (Art. 6-3-d)

of the Convention which state, insofar as they are relevant:

"1. In the determination of his civil rights and

obligations or 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:

...

(d) to examine or have examined witnesses against him

and to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against

him; ..."

With regard to the witnesses heard at the trial the applicant

submits that it cannot be said which considerations guided the Jury

Court when convicting the applicant. The discrepancies between the

statements of the applicant and his wife may well have been decisive

therefor. The applicant also submits that it was of no relevance that

his defence counsel requested the Court to stop questioning Mr. H. and

that no conclusion could be drawn from H.'s conflicting evidence.

The Government submit that the application is manifestly

ill-founded. Reference is made to the case-law of the Austrian

Supreme Court, after the judgment of the Court in the Unterpertinger

case (see Eur. Court H.R., judgment of 24 November 1986, Series A

no. 110), according to which the admissibility of reading out such

statements of witnesses at a trial is a question of balancing

interests. In the present case the Supreme Court undertook such a

balancing of interests in respect of the persons concerned and

considered that the statements read out played a subordinate role in

view of the results of the comprehensive evidence obtained.

The Government point out that the statements of the

applicant's son concerned facts which were not denied by the applicant

or in fact corresponded with his statements. The same applies to

statements of the applicant's wife. Her statements provided insight

into the applicant's financial and professional situation between 1975

and 1982. The only discrepancy between the statements of the

applicant and of his wife concerned his claim that his sudden wealth

resulted from gambling and possibly from car sales, whereas his wife

stated that she knew only about a winning of 100,000 AS and doubted

the possibility of additional winnings or car sales. However, the

Government point out that the applicant's financial situation in

autumn 1980 and January 1982 was also illustrated by three other

witnesses examined at the trial.

The Government also recall that Mr. H. twice refused to give

evidence at the trial. As the applicant's defence counsel proposed to

terminate his interrogation it is questionable whether the applicant

can now raise a complaint in respect of this witness. The Government

consider that these statements were in any event so contradictory, in

that they partly exonerated and partly incriminated the applicant,

that it cannot be assumed that the Jury Court substantially relied on

them. The Government further submit that for the applicant's

conviction the Court relied on the evidence of many other witnesses

(mentioned in the Facts above) who gave evidence at the trial and whom

the applicant was able to question.

The Commission recalls that the reading out of statements at

the trial, to which the judgment later has recourse, is not in itself

inconsistent with Article 6 paras. 1 (Art. 6-1) or 3 (d) (Art. 6-3-d)

of the Convention. Nevertheless the use made of these statements must

comply with the rights of the defence. On the one hand, a person

charged with a criminal offence must have the opportunity to examine

or have examined witnesses against him, particularly if he has not

had the opportunity at an earlier stage in the proceedings to

question the persons whose statements are read out at the trial and

later are relied upon in the judgment of the Court concerned (see

Unterpertinger judgment loc. cit. p. 14-15 para. 31). On the other

hand, Article 6 paras. 1 and 3 (d) do not give an accused an unlimited

right to obtain the appearance of, and to examine, witnesses before

court (see No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127).

In the present case the Commission notes on the one hand that

at the trial before the Jury Court of the Linz Regional Court the

applicant's wife and son did not give evidence as witnesses with

reference to S. 152 of the Code of Criminal Procedure. Subsequently,

their statements made before the Linz Federal Police Direction were

read out at the trial without the applicant or his lawyer being able

to put questions to these witnesses. The Commission, in the absence

of any indication to the contrary in the judgment, assumes that these

statements were taken into account by the Jury Court when reaching its

decision.

On the other hand, the applicant has not alleged before the

Commission that he could not inform himself of the contents of the

statements concerned.

Moreover, the Commission notes the submissions of the

respondent Government, which have not been called in question by the

applicant, according to which the content of the statements of the

applicant's wife and son were either not denied by the applicant or

corresponded with his own statements, the only discrepancy concerning

certain additional grounds for the applicant's then sudden wealth.

As regards the witness Mr. H., the Commission notes that

at the trial he refused to reply in substance to the applicant's

questions. The Regional Court eventually ceased questioning this

witness and ordered the reading out in particular of one statement

in which Mr. H. had implicated the applicant. Insofar as the

applicant complains of this reading out although he could not put

questions to Mr. H., the Commission considers that Mr. H. was actually

twice present at the trial and that it cannot be held against the

authorities concerned if Mr. H. then refused to give evidence.

Furthermore, the Commission considers that the evidence

produced before the Regional Court did not consist exclusively of the

statements of the applicant's wife and son and Mr. H. which were read

out in court. Rather, at the trial the Regional Court heard

altogether 51 witnesses as well as three experts, and inspected various

localities. The minutes of the trial extended to approximately 1000

pages. Among the witnesses heard, and whom the applicant could

question, were three witnesses, in particular the then wife of Mr. H.,

who could give evidence with regard to certain aspects of the

applicant's financial situation at the relevant time.

As a result, the Commission does not regard the reading out at

the applicant's trial before the Regional Court of statements made

before the police by his wife and his son, and by Mr. H., without the

applicant having been able to put questions to them as being

inconsistent with Article 6 paras. 1 (Art. 6-1) or 3 (d) (Art. 6-3-d).

It follows that the above complaints do not disclose any appearance of

a violation of the rights set out in Article 6 (Art. 6) of the

Convention. The Commission concludes 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BAYER v. AUSTRIA

BAYER v. AUSTRIA

LEXI