Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12398/86

by A.

against Austria

The European Commission of Human Rights sitting in private

on 10 July 1989, 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

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. 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 22 August 1986

by A. against Austria and registered on 24 September 1986 under file

No. 12398/86;

Having regard to:

- the observations submitted by the respondent Government on

31 October 1988 and the observations in reply submitted

by the applicant on 5 December 1988;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant, an Austrian citizen born in 1934, is a wood

dealer and farmer resident at Laaben in Austria. Before the

Commission he is represented by Dr. St. Gloss, a lawyer practising in

St. Pölten.

I. PARTICULAR CIRCUMSTANCES OF THE CASE

In the night of 5 to 6 July 1985 the applicant returned home

at midnight whereupon a dispute arose with his life companion,

Ms. J.L., who lived with him. In the course of the dispute the

applicant ordered J.L. to leave the house. She then drove to her

mother.

In the morning of 6 July 1985 J.L. visited a doctor who

referred her on the same day to the St. Pölten hospital. A notification

of the doctor (Verletzungsanzeige) of 9 July 1985 stated that J.L. had

multiple bruises and was suffering from a headache. A report of the

casualty department at the St. Pölten hospital issued on 11 July 1985

stated that J.L. had been maltreated with a belt, and a diagnosis

showed that she had a bruise on her head and multiple bruises on her

body ("contusio capitis, contusio multipl.").

In the evening of 6 July 1985 J.L. reported the incident of

the previous night to the Brand-Laaben Police Station (Gendarmerie-

posten). According to the police minutes (Niederschrift)

simultaneously prepared by one police officer B., J.L. alleged that,

during the course of the verbal dispute with the applicant, he had

said: "If you do not get out of here now, I shall wallop you" ("Wenn

Du Dich jetzt nicht schleichst, dann wasche ich Dich"). In J.L.'s

submissions, she did not comply. He then beat her with a belt on the

back, the arms and the legs. Thereafter he fetched a gun and

threatened to kill her. She claimed that she knelt before him, urging

him to reflect on what he was doing. When he paused, she quickly left

the house.

After J.L. had made this statement, the police officer at

once informed the St. Pölten Public Prosecutor's Office (Staatsanwalt-

schaft) by telephone of the occurrences. The latter gave oral

instructions not to arrest the applicant or to impound his gun.

Subsequently, the applicant and J.L. settled their

differences. On 7 July 1985 she moved back into his house. On

10 July 1985 in the morning she requested the Brand-Laaben Police

Station not to prosecute the applicant.

The applicant was questioned at the Brand-Laaben Police

Station on 10 July 1985 in the evening. He explained the events,

whereby he denied having employed force or having threatened J.L. with

a gun. In the applicant's submissions, J.L. only had a scratch

(Kratzer) on her back and had told him that she reported him to the

police as she was so furious with him.

On 16 July 1985 the Brand-Laaben Police Station filed a

criminal report (Strafanzeige) with the Neulengbach District Court

(Bezirksgericht). The report largely reiterated the statements of

J.L. at the police station on 6 July 1985. It included as annexes the

general practitioner's notification of 9 July 1985, the report of the

St. Pölten Hospital of 11 July 1985, and the minutes of J.L.'s

statements on 6 July 1985, as well as of the applicant's statements on

10 July 1985.

On 7 August 1985 the St. Pölten Public Prosecutor's Office

indicted the applicant before the St. Pölten Regional Court

(Kreisgericht) on the grounds of compulsion (Nötigung) and bodily

injury (Körperverletzung). It further requested the hearing at the

trial of J.L. and the police officer B. as well as the reading out of

the criminal report, of the extract from the criminal record and of

the file of the applicant's previous convictions in accordance with

S. 252 para. 2 of the Code of Criminal Procedure (Strafprozessordnung,

see below RELEVANT DOMESTIC LAW AND PRACTICE).

The trial (Hauptverhandlung) took place on 15 November 1985.

The applicant was heard first. He stated that he was not guilty and

that he had not injured J.L. In his opinion J.L. had injured herself

that night on a board at the end of the bed.

J.L. was then heard as a witness. The Court informed her of

S. 152 of the Code of Criminal Procedure (see below RELEVANT

DOMESTIC LAW AND PRACTICE). Thereupon, she stated that she would

exercise her right to refuse to testify. The police officer B. was also

heard.

According to the trial minutes, no further requests were made

by the parties. The criminal report of 16 July 1985 and the minutes

of the statement of J.L. before the police on 6 July 1985 were then

read out in Court. The Public Prosecutor's Office finally requested

the Court to convict the applicant, whereas the latter requested to be

acquitted.

In its ensuing judgment of 15 November 1985, the St. Pölten

Regional Court convicted the applicant of compulsion and bodily

injury according to S. 105 and 83 of the Penal Code (Strafgesetzbuch),

respectively, and sentenced him to 180 daily rates of 80.-AS or,

alternatively, to 90 days' imprisonment.

In the reasons for its judgment the Regional Court relied on

the statement of the accused, the testimony of the police officer B.,

as well as the police investigations (Gendarmerieerhebungen) and the

annexed preliminary file (angeschlossener Vorakt). The Court regarded

it as proven that in the night of 5 to 6 July 1985 the applicant had

threatened J.L. that if she did not leave he would beat her, that he

then beat her, thus injuring her, and later fetched a gun and ordered

her to leave.

The Court did not find sufficiently credible the applicant's

denial that he had committed the offences. The Court regarded J.L.'s

statement at the police station as firm and credible, as confirmed by

the police officer B., even if she did not testify at the trial and on

10 July 1985, requested the police no longer to prosecute the applicant.

The Court saw no ground to assume that J.L. had intended

slanderously to incriminate the applicant. In the Court's view, the

case file also demonstrated that the applicant was by nature choleric

and his conduct unpredictable.

The Court found it established with sufficient certainty for

purposes of the criminal proceedings that the events had occurred in

the manner explained by J.L. at the Police Station.

The applicant then filed an appeal (Berufung) in which he

complained that the Regional Court had read out at the trial a

document of the preliminary investigations (Vorerhebungsakt) which

was null and void according to the law. Although he had not been

represented by a lawyer he had not been directed (angeleitet) by the

Court to contest the document. Neither he nor J.L. had been questioned

(Vernehmung) by the Court. The applicant also submitted that the

Court should have obtained a medical expert opinion.

The appeal was dismissed on 19 March 1986 by the Vienna Court

of Appeal (Oberlandesgericht). In respect of the applicant's

complaint concerning the reading out of the minutes of J.L.'s

statement before the police station, the Court of Appeal stated that,

if a witness did not testify, the Court concerned was obliged under

S. 252 para. 2 of the Code of Criminal Procedure to read out and

assess any statements made out of court. This was constant case-law

and the Court saw no reason to depart therefrom.

II. RELEVANT DOMESTIC LAW AND PRACTICE

S. 152 of the Code of Criminal Procedure concerns exemptions

from the obligation to testify at the hearing. Para. 1 (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 (S. 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."

S. 72 para. 2 of the Penal Code considers as members of the

family persons of different sex living together in an extramarital

life community (aussereheliche Lebensgemeinschaft).

S. 252 of the Code of Criminal Procedure provides, insofar as

it is relevant to the present case:

"...

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."

"...

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 of the reading out before the St.

Pölten Regional Court of the minutes recording J.L.'s statement at the

police station on 6 July 1985. The applicant submits that the police

station is not a court and that at the police station J.L. could say

what she liked without risking prosecution. The Regional Court

nevertheless relied in its judgment on these minutes and convicted the

applicant solely on the basis of a report.

The applicant further alleges that he was not allowed to put

questions to J.L. at the trial, as she exercised her right to refuse to

testify. For the same reason, however, the minutes of her statement at

the police station should also not have been read out. The applicant

submits that, if the Regional Court had not read out J.L.'s statement,

it would have had to rely solely on the applicant's statement that he

was innocent.

The applicant relies on Article 6 paras. 1 and 3 (d) of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 August 1986 and

registered on 24 September 1986.

On 4 July 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

31 October 1988 and the reply thereto by the applicant on 5 December

1988.THE LAW

The applicant complains that J.L.'s statement at the police

station on 6 July 1985 was read out before the St. Pölten Regional

Court without him having had the opportunity of putting questions to

J.L. The applicant relies on Articles 6 paras. 1 and 3 (d)

(Art. 6-1, 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; ..."

The Government refer to the judgment of the European Court of

Human Rights in the Unterpertinger case according to which the reading

out of minutes as a result of the refusal of a witness to testify does

not in itself contradict Article 6 (Art. 6) of the Convention, as long

as the rights of the defence are protected (judgment of 24 November

1986, Series A No. 110, p. 14-15 para. 31). The Government submit

that in practice the accused is prevented from putting questions to

the witness where the latter has died or cannot be found. In the

present case the St. Pölten Regional Court heard the police

officer B. to whom the applicant did not put questions. The Court

had no reason to doubt J.L.'s statements for which reason it did not

take additional evidence ex officio. Subsequently, its judgment was

based on Mr B.'s testimony, and the police investigations, and the

Court gave reasons why it was unable to accept the applicant's

version.

The Government conclude therefrom that the applicant was not

primarily convicted on the basis of a testimony in respect of which

his defence rights were appreciably restricted.

The Commission considers that the applicant's complaints under

Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention raise

complex issues of fact and law which can only be resolved by an

examination of the merits. The application cannot, therefore, be

declared manifestly ill-founded. No other grounds for inadmissibility

have been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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