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AS TO THE ADMISSIBILITY OF

Application No. 13161/87

by Josef ARTNER

against Austria

The European Commission of Human Rights sitting in private

on 5 March 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 6 July 1987

by Josef Artner against Austria and registered on 21 August 1987

under file No. 13161/87;

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

Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 24 September 1989 and the observations in reply

submitted by the applicant on 13 October 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1953. He was

detained in prison in Vienna when he lodged this application. He is

represented by Mr. Franz X. Gugg, a lawyer in Vienna.

The facts agreed between the parties may be summarised as

follows.

On 16 December 1986 the applicant was convicted by the Vienna

Regional Court (Landesgericht) of two counts of usury (Geldwucher), of

partly completed and partly attempted aggravated fraud (schwerer Betrug),

of breach of trust (Veruntreuung) and of aggravated theft (schwerer

Diebstahl). He was sentenced to three years' imprisonment. The applicant

had previously been convicted eight times of similar charges.

The conviction of usury in one case was based on the following

findings: in the summer of 1982 the applicant advertised in

newspapers that he could procure loans. He was contacted by Miss L.,

who was twenty years old and in financial difficulties. As she could

offer no guarantees, the applicant proposed that she take out a loan

together with a third person who, at the same time, would act as

guarantor. L. accepted and on 24 August 1982 the applicant, L. and

one S., a Yugoslav allegedly unknown to the applicant, contacted a

credit institute. S. and L. applied for and obtained as joint debtors

a loan of 60,000 AS. The money was paid out immediately. L. received

20,000 AS, S. received 30,000 AS and the applicant 10,000 AS. S. later

disappeared, while L. was liable for the reimbursement of 60,000 AS.

The Court considered that the commission of 10,000 AS received by

the applicant was disproportionate to the loan received by L., namely

20,000 AS, and that the applicant had misused L.'s inexperience and

rashness. These findings were based on statements made by L. before

the investigating judge and read out at the trial and on documentary

evidence submitted by L. in connection with the charges she had

previously laid against the applicant.

In preparation of the trial, the applicant's defence counsel

had, on 12 November 1986, requested to hear certain witnesses. Inter

alia, he suggested in respect of the charges laid by L. to hear a

representative of the credit institute supposed to confirm his

allegation that L. first reimbursed during several months the loan

without complaining while later she was apparently informed by the

credit institute of the "well known practices of credit mediators"

which, as the defence put it, might have given certain ideas to her

(motivierend wirkte). Meanwhile L. had been summoned to give evidence

at the trial as witness for the prosecution. As the summons was

returned with the mention that L. had moved and her new whereabouts

were unkown the trial court requested the Central Registry of the

Vienna Federal Police Directorate on 28 October 1986 for information

whether L. was registered under a new address. A new address was in

fact obtained and L. was summoned under this address.

However, L. did not appear at the trial of 21 November 1986.

The applicant denied the respective charges and was not prepared to

renounce the hearing of this witness. The trial was adjourned until

16 December 1986 and the police was ordered to see to it that L. attend

the new hearing but her whereabouts could not be ascertained. The

applicant was so informed at the beginning of the hearing of

16 December 1986. At the end of the hearing his defence counsel

maintained all motions for the taking of evidence which had previously

been rejected (Verteidiger wiederholt die abgewiesenen Beweisanträge).

The evidence given by L. before the investigating judge was then read

out.

The trial court considered L.'s statement to be credible

although initially she had said that the money had been handed over to

the applicant while later she said it was given to S. who distributed

it. This slight contradiction was considered to be of no importance

as uncontestedly all the three had been together at the credit

institute and the money was paid out to them.

The other usury offence concerned a loan of 40,000 AS with

regard to which the applicant had claimed and obtained a commission of

approximately 15,000 AS according to the evidence given by the victim

at the trial.

The applicant's appeal (Berufung) and plea of nullity

(Nichtigkeitsbeschwerde) were rejected by the Supreme Court (Oberster

Gerichtshof) insofar as they related to the conviction of the two

counts of usury. In respect of the applicant's complaint that he was

wrongly convicted on the basis of the reading out of L.'s statements

made before the investigating judge, the Supreme Court pointed out

that the applicant had himself not requested to hear witness L. As

it had been impossible to ascertain L.'s whereabouts Sec. 252 (1) No. 1

of the Code on Criminal Procedure (Strafprozessordnung) allowed the

reading out of L.'s previous statements even without the accused's

consent. This provision reads in its relevant passages: "Records on

hearing of witnesses may be read out ... if the witnesses' whereabouts

are unknown".

Insofar as the applicant complained that L.'s statements were

considered by the trial court to be credible, although there had been a

certain contradiction, the Supreme Court pointed out that the applicant

himself admitted at the trial that he had received a commission both from

L. and S. immediately after the loan had been paid out.

COMPLAINTS

The applicant points out that, under Sec. 162 (2) of the Code

on Criminal Procedure, the investigating judge has to invite the

accused to participate at the hearing of the witness if it is probable

that the record of the hearing will have to be read out later at the

trial on one of the grounds stated in paragraph 1 No. 1 of the Section.

He considers it to be contradictory to acknowledge the accused's right

to be present at the hearing and nevertheless allow the reading out of

records in cases where the investigating judge has not, as in his

case, invited the accused to participate at the hearing of a witness.

In his opinion this practice violates Article 6 para. 3 (d) of

the Convention as L. was the only witness against him and as allegedly

no serious efforts had been made to obtain the appearance of this

witness at the trial.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 July 1987 and registered

on 21 August 1987.

On 9 May 1989 the Commission decided to invite the respondent

Government to submit observations on the admissibility and merits of

the application.

The Government's observations were received by letter dated

21 September 1989 and the applicant's observations in reply were dated

13 October 1989.

By letter of 11 November 1989 the respondent Government stated

that they did not request an oral hearing on admissibility.

THE LAW

The applicant has complained that his conviction by the Vienna

Regional Court on a count of usury was exclusively based on a

statement by the alleged victim, witness L., which had been made in

his absence before the investigating judge and was read out at the

trial because the witness had moved without leaving an address and

could not be found by the police.

It is true that Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention secures to everyone charged with a criminal offence the

right to examine witnesses against him.

The Government submit that the applicant was not only convicted

on the basis of the evidence given before the investigating judge by

L. but also on the basis of documentary evidence proving that a loan

was obtained for L. and S. and that in a similar case the applicant

had asked for and obtained a commission of some AS 15,000 for the

procurement of a loan in the amount of AS 40,000. L. was obliged to

tell the truth when testifying before the investigating judge while

the applicant had not invoked any particular circumstances that could

have cast doubts on the evidence given by L., necessitating a further

hearing of this witness before the trial court.

The applicant submits that it was not necessary for him to

apply for the hearing of witness L. because this witness had been

summoned by the Public Prosecutor and he could therefore expect that

the witness would be heard. He points out that the question whether

he requested and received an excessive commission from L. was decided

exclusively on the basis of her statements before the investigating

judge.

The Commission considers that the situation in the present

case raises a complex issue under Article 6 para. 3 (d) (Art. 6-3-d)

of the Convention which has to be decided on the merits. It follows

that the application is not manifestly ill-founded within the meaning

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

No other ground of inadmissibility can be established.

For these reasons, the Commission

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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