Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13468/87

by B.

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 21 October 1987

by B. against Austria and registered on 9 December 1987 under file

No. 13468/87;

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

Rules of Procedure of the Commission;

Having regard to :

- the Commission's decision of 15 July 1988 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

17 November 1988 and the observations in reply submitted

by the applicant on 19 April 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1939 who resides

at Hadres, Lower Austria. He is represented by Dr. Werner Sporn, a

lawyer practising in Vienna.

The facts as submitted by the parties may be summarised as

follows:

The applicant has introduced a previous application concerning

criminal proceedings (No. 11170/84) which the Commission declared

admissible on 14 July 1987. In that application the applicant

complained of a conviction of adulteration (Verfälschung) of wine by

dilution with water under Section 45 para. 1 (a) of the Wine Act 1961.

The judgment pronounced by the District Court (Bezirksgericht) of

Haugsdorf on 14 February 1984 was confirmed on appeal by a judgment of

the Regional Court (Kreisgericht) of Korneuburg on 7 May 1984.

Two further criminal proceedings were subsequently instituted

against the applicant. One of those proceedings concerned a charge of

calumny (Verleumdung) under Section 297 of the Penal Code, based on

the allegation that the applicant had wrongly accused the Federal

Cellar Inspector (Bundeskellereiinspektor) of having followed an

irregular procedure when drawing the first wine samples on 16 May

1983. On that date, three types of samples had been taken from the

applicant's wine tanks which had then been officially seized

(Beschlagnahme) and sealed.

The calumny proceedings were instituted against the applicant

(and also his wife and two sons) following a request of the Public

Prosecutor of 20 August 1984. He submitted that in the first criminal

proceedings under the Wine Act the applicant and his family had

wrongly accused the Federal Cellar Inspector. Before the police and

at the trial they had stated that the Cellar Inspector had used a

dirty bucket for drawing the samples from the applicant's wine tanks,

and that some water had been in the bottles into which the samples had

been filled. After objections by the applicant, the Cellar Inspector

had allegedly emptied the remaining bottles. The Cellar Inspector and

his assistant had denied these allegations when heard as witnesses at

the applicant's trial in the case under the Wine Act. By making these

false allegations against the Cellar Inspector the applicant was said

to have exposed the latter to the danger of disciplinary proceedings

and to have thus committed the offence of calumny.

On 29 October 1984 the Regional Court of Korneuburg convicted

the applicant as charged. It accepted that he had raised objections

because of a residue of liquid in the bottles, but observed that the

Cellar Inspector had explained to him that this was wine and he had

also emptied the bottles as requested by the applicant. The

applicant, therefore, knowingly made an incorrect statement when

declaring before the police and the Court that there had been a

residue of water in these bottles. Likewise, he had wrongly stated

that a dirty bucket had been used. The Federal Cellar Inspector and

his assistanct had again confirmed their earlier statements in this

respect. The Court fixed a conditional prison sentence of three

months.

The applicant's appeal against this judgment was rejected by

the Vienna Court of Appeal (Oberlandesgericht) on 23 April 1985.

The applicant states that he later found out that the Court of Appeal's

judgment reproduced almost literally the observations (the so-called

"Croquis") which had been submitted to this Court on 29 March 1985 in

a non-public procedure by the Senior Public Prosecutor (Oberstaats-

anwalt) of Vienna. This document had not been communicated to the

applicant who at the relevant time had no knowledge of its existence.

The Government submit that the applicant's lawyer should have known

the practice of the Court of Appeal to send the file to the Senior

Public Prosecutor who may then submit written observations to the

Court. He could have asked for access to the file, in which case the

said observations would have been disclosed to him. The applicant

submits that this procedure is not sufficient to secure equality of

arms within the meaning of Article 6 para. 1 of the Convention and he

contests that the practice of the Court of Appeal is in fact

as described by the Government. He submits that access to the

file would not have included the Senior Public Prosecutor's

observations.

In its judgment, the Court of Appeal held that Section 297 of

the Penal Code applied to the incriminated statements of the

applicant, which were wrong allegations likely to expose the Cellar

Inspector to a danger of disciplinary proceedings. It also found that

there was no tacit renunciation of a prosecution by the public

prosecutor who had not immediately reacted at the applicant's first

trial. Furthermore, the evaluation of the evidence by the Regional

Court showed no procedural defects. Finally, the Regional Court had

imposed an adequate sentence.

Subsequently, upon the applicant's request, the Attorney

General (Generalprokuratur) lodged a plea of nullity for safeguarding

the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes). He

submitted that the Court of Appeal had been wrongly composed. The

Supreme Court (Oberster Gerichtshof) allowed the plea of nullity on 28

January 1987, quashing the Court of Appeal's judgment and referring

the case back to that Court.

At the new hearing before the Court of Appeal on 24 March 1987

the defence submitted that one of the judges had participated in the

earlier appeal hearing and was therefore disqualified. The hearing

was adjourned until 28 April 1987, when the Court was composed

according to the law. It again rejected the applicant's appeal,

confirming the reasons of its judgment of 23 April 1985.

The applicant again applied to the Attorney General to file a

plea of nullity for safeguarding the law, but this application was

rejected. It was allegedly in connection with these latter

proceedings that the applicant learnt of the Senior Public

Prosecutor's submissions in the first appeal proceedings, and of the

fact that the Court of Appeal's judgments of 23 April 1985 and 28

April 1987 adopted these submissions.

COMPLAINTS

The applicant now complains

- that the Regional Court violated his rights of defence

(Article 6 para. 3 (c) of the Convention) by sentencing him for

statements which he had made as a defendant in earlier criminal

proceedings;

- that the principles of a "fair trial" and in particular the

principle of "equality of arms" enshrined in Article 6 para. 1 were

violated in that the Court of Appeal relied on submissions by the

Senior Public Prosecutor which had not before been communicated to the

defence.

PROCEEDINGS

The application was introduced on 21 October and registered on

5 December 1987.

On 15 July 1988 the Commission decided, pursuant to Rule 42

para. 2 (b) of the Rules of Procedure, to give notice of the

application to the respondent Government and to invite them to submit

before 10 November 1988 their observations in writing on the

admissibility and merits of the application. At the Government's

request, the time-limit was subsequently extended until 15 November

1988. The Government submitted their observations on 17 November 1988

and the applicant was invited to submit observations in reply before

2 January 1989. On 30 December 1988 he requested an extension of this

time-limit until 31 March 1989. On 6 January 1989 the President of

the Commission granted the extension only until 6 March 1989. On

3 March 1989 the applicant again applied for an extension until

31 March 1989, however this was refused by the President on 8 March 1989.

The applicant submitted observations in reply to the Government's

observations after the expiration of the time-limit, on 19 April 1989.

On 16 December 1988 the Commission granted free legal aid to

the applicant.

THE LAW

1. The applicant's first complaint refers to criminal proceedings

taken against him under the Wine Act 1961. The Commission has

examined those proceedings in Application No. 11170/84, which it

declared admissible on 14 July 1987. The applicant now complains

that, by punishing him in subsequent proceedings for statements which

he had made in defence against the criminal charge against him in the

above proceedings, the courts have violated his rights of defence as

guaranteed in particular by Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention, which reads as follows:

"Everyone charged with a criminal offence has the

following minimum rights:

...

(c) to defend himself in person ..."

The Commission notes that the applicant's present complaint is

based on new proceedings which were brought after his conviction in

the above case.

The Government submit that, in principle, Austrian law does

not allow prosecution on account of statements made in defence to a

criminal accusation even if these statements involve the allegation

that a witness has given false evidence. The accused is not obliged

to tell the truth, but he is not free, in his defence, knowingly to

make false allegations against third persons. In the Government's

view the applicant's statements in the present case went beyond what

was necessary for his defence in the case under the Wine Act; he did

not merely deny his guilt and contest the correctness of the cellar

inspector's statements, but accused the latter of improper

manipulations when drawing the wine samples. The courts were

convinced that he knowingly made this false statement and his

conviction was therefore justified and did not improperly interfere

with his rights of defence in the earlier case. The applicant claims

that his allegations against the Cellar Inspector in the proceedings

under the Wine Act were legitimate defence arguments in the

circumstances.

The Commission has considered these arguments and finds that

the applicant's complaint cannot be rejected as being manifestly

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

Convention. It raises complex issues of law and fact regarding the application

of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention which require a

determination on the merits.

2. The applicant further complains that in the calumny

proceedings there has been a violation of Article 6 para. 1 (Art. 6-1)

of the Convention which, insofar as relevant, reads as follows:

"In the determination of ... any criminal

charge against him, everyone is entitled to

a fair ... hearing ..."

The applicant complains that, in the appeal proceedings, the

Vienna Court of Appeal relied on submissions by the Senior Public

Prosecutor which had not been communicated to the defence. He claims

that this infringed the "equality of arms" which, according to the

case-law of the Convention organs, is enshrined in the notion of a

"fair hearing".

It is not contested that in the present case the Senior Public

Prosecutor submitted written observations to the Court of Appeal and

that these were not communicated to the defence. The Government

observe, however, that this practice should have been known to the

applicant's defence counsel who could have consulted the file.

Referring to the Commission's decision on the admissibility of

Application No. 8289/78 (Peschke v. Austria, Dec. 5.3.1980, D.R. 18

p. 160) where a similar practice before the Supreme Court was found to be

compatible with Article 6 para. 1 (Art. 6-1) of the Convention, the

Government contest a violation of this provision in the present case.

The applicant claims that the practice concerning access to the file

is not as described by the Government; he also invokes the

Commission's case-law and submits that in any event a possibility of

consulting the file is not sufficient under Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission has considered these arguments and finds that

the applicant's complaint cannot be rejected as being manifestly

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

Convention. It raises complex issues of law and fact under Article 6 para. 1

(Art. 6-1) of the Convention which require a determination on the merits.

3. The Commission finally notes the close link between the

present case and Application No. 11170/84 pending before the

Commission. The Commission considers it appropriate to join the

present case to Application No. 11170/84.

For these reasons, the Commission

1. DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case;

2. Decides to join the present application to

Application No. 11170/84.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

B. v. AUSTRIA

B. v. AUSTRIA

LEXI