Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12489/86

by W.

against Austria

The European Commission of Human Rights sitting in private

on 14 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 2 October 1986

by W. against Austria and registered on 23 October 1986 under file No.

12489/86;

Having regard to:

- the observations submitted by the respondent Government on

10 March 1988 and the observations in reply submitted by

the applicant on 11 May 1988;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, apparently not in dispute between the

parties, may be summarised as follows:

The applicant is an Austrian national, born in 1933, and a

pensioner. He is presently serving a sentence in Stein prison,

Krems (Lower Austria). Before the Commission he is represented by

Mr. W. Nowak, a Rechtsanwalt practising in Innsbruck.

On 20 November 1985 the Innsbruck Regional Court (Landes-

gericht) convicted the applicant and a co-accused of burglary

(schwerer Diebstahl durch Einbruch) committed at Stams. The applicant

was sentenced to three years' imprisonment. In the criminal

proceedings the applicant was represented by counsel.

In its judgment the Court referred to the statements made by

two anonymous witnesses before the police. The police officers who had

interrogated them had been examined by the Court.

On the basis of the testimony of the police officers the Court

found that the two witnesses had seen two men in the vicinity of the

place of the crime at Stams during the late evening when the burglary

was committed and that they later recognised the applicant as one of

them without any doubt. The Court, which was not aware of the

identity of these witnesses and had not examined them in person, found

the two women to be credible persons. The applicant denied having

been at the locality at Stams but maintained that he was in Innsbruck

throughout the night in question.

The applicant's request to have these witnesses summoned and

to be confronted with them was rejected by the Court on the ground

that the police officers concerned had promised the two witnesses who

feared retaliation not to reveal their identity. The police officers

were not allowed by their superiors to give evidence. The Court found

that the scope of the witnesses' perceptions sufficiently resulted

from the statements of the police officers.

The Court also considered that another witness had told the

applicant about the victim and his financial situation. Moreover, the

Court, having heard several witnesses on the applicant's behalf, found

that he had failed to establish his alibi. Finally, the Court believed

him capable of such a crime.

On 20 March 1986 the Supreme Court (Oberster Gerichtshof)

rejected the applicant's plea of nullity (Nichtigkeitsbeschwerde). The

Supreme Court found that the request to summon and hear the two

anonymous witnesses would have been futile. Failing a precise

indication of how the identity of these witnesses could be

established, this request would have necessitated an intervention of

the police authorities. However, as matters stood it was not possible

to establish the witnesses' identity by asking the police. The

applicant had not, for example, asked the Court to take evidence on the

identity of the two anonymous witnesses by hearing X whom the witnesses

stated to have met late in the evening in question. X might have known

the two witnesses and remembered to have met them.

On 24 April 1986 the Supreme Court dismissed the applicant's

appeal against sentence (Berufung).

COMPLAINTS

The applicant complains under Article 6 para. 3 (d) of the

Convention that the Regional Court convicted him exclusively on the

basis of evidence given by two anonymous witnesses who were not heard

by the Court and whom he had no opportunity to examine. These two

witnesses were the only witnesses against him. He lists several

questions which he would have put to these witnesses. The Regional

Court refused to hear the witnesses on the sole ground that the police

authorities had refused to disclose their identity.

The applicant submits that the Regional Court's refusal to

hear the witnesses was not justified. In particular, there was no

basis for possible fear of retaliation by his co-accused. Moreover,

it would have been possible to exclude the public during the

witnesses' examination or to have them examined by the investigating

judge in the presence of the Public Prosecutor and of defence counsel

if the Court had wished to protect them.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 October 1986 and

registered on 23 October 1986.

On 12 December 1987 the Commission decided to invite the

respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of

Procedure, to submit written observations on the admissibility and

merits of the application.

The Government's observations were submitted on 10 March 1988,

the applicant's observations in reply on 11 May 1988.

On 15 July 1988 the Commission decided to grant the applicant

legal aid.

SUBMISSIONS OF THE PARTIES

A. The Government

1. The Government consider that the applicant did not properly

exhaust the remedies available to him under Austrian law (Article 26

of the Convention) to the extent that he did not request the Austrian

courts to take evidence on the identity of the two anonymous witnesses

by hearing X.

2. The Government argue that Article 6 para. 3 (d) of the

Convention does not grant the accused an unlimited right to secure the

appearance of witnesses before the court with a view to having them

cross-examined. A police informant may well have a legitimate

interest in remaining anonymous. In particular, the use of indirect

testimony does not render proceedings unfair if it was not the only

item of evidence. They refer, in this respect, to the Commission's

case-law (cf. No. 4428/70, Dec. 1.6.72, Collection 40 p. 1; No.

8417/78, Dec. 4.5.79, D.R. 16 p. 200).

The Government consider that in the present case there was a

legitimate interest not to reveal the identity of the two anonymous

witnesses. Their fear of retaliation was not unreasonable.

Furthermore, the Government contend that the applicant's

conviction was not solely based on the statements of the two anonymous

witnesses. The Innsbruck Regional Court took further evidence and in

particular heard several other witnesses. It established that the two

accused had met in Innsbruck on the evening in question. The

applicant failed to prove his alibi that he had spent the whole

evening in Innsbruck. Taking into account the applicant's previous

convictions, he might have been capable of committing the burglary in

question. The Government also submit that the two anonymous witnesses

were no eye-witnesses and their statements could, therefore, not have

been the decisive item of evidence in the criminal proceedings against

the applicant.

3. The Government request the Commission to declare the

application inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 of the Convention.

B. The applicant

The applicant maintains that the hearing of the two anonymous

witnesses would have served both his interest in a fair trial and

the public interest in criminal justice. Witnesses alleging that they

fear retaliation should not be easily allowed to refuse evidence

before the competent court. He finds that in the present case there

was no legitimate interest not to reveal the two witnesses' identity.

Furthermore, the applicant considers that the statements of

the two anonymous witnesses were of decisive importance in assessing

the evidence. In particular, the Regional Court, assuming that the

applicant had been in the vicinity of the place of the crime at Stams,

was not inclined to believe the witnesses on his behalf who stated

that he had been in Innsbruck at the time in question.

THE LAW

The applicant complains under Article 6 para. 3 (d) (Art.

6-3-d) of the Convention that he was convicted on the basis of

statements made by anonymous witnesses to the police without having

had the opportunity to examine them.

Article 6 para. 3 (d) (Art. 6-3-d)of the Convention provides

that everyone charged with a criminal offence has the right 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 Commission notes first that the respondent Government

raised the issue that the applicant did not expressly request the

Innsbruck Regional Court to examine the witness X on the question of

the two anonymous witnesses' identity, and did not, in this respect,

properly exhaust domestic remedies. However, they did not request the

Commission to declare the application inadmissible for non-exhaustion

of domestic remedies.

The Commission considers that the applicant has raised his

complaints under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention

which he now makes before the Commission in the domestic court

proceedings and can therefore be considered to have exhausted the

domestic remedies under Austrian law within the meaning of Article 26

(Art. 26) of the Convention.

The Government furthermore contend that the applicant's rights

under Article 6 para. 3 (d) (Art. 6-3)d) of the Convention were

respected. They submit in particular that the police authorities had

a legitimate interest not to reveal the identity of the two anonynous

witnesses and that the applicant's conviction was not exclusively

based upon their statements.

The Commission, however, considers that the applicant's

complaints raise complicated 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 and 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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