Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12975/87

by O.

against Austria

The European Commission of Human Rights sitting in private

on 11 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

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. 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 10 March 1987

by O. against Austria and registered on 9 June 1987 under file No.

12975/87;

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

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1925 and living

in S. im S. He is represented by Mr. S. Gloss, a lawyer in Pölten.

On 7 April 1986 the applicant was convicted by the District

Court (Kreisgericht) in Krems of having given false evidence (falsche

Beweisaussage). He was sentenced to seven months' imprisonment.

According to the findings of the Court the applicant had

requested a construction firm to submit an offer for the construction

of a well. The detailed offer contained various single positions, the

total of which amounted to AS 100,000. After receipt of the written

offer, the parties met for further negotiations between the manager L.

of the construction firm, the applicant and his two sons. The

applicant succeeded in obtaining reductions in respect of several

positions listed in the offer. In particular, position no. 1

concerning the transport of machines needed for the construction work

was reduced by AS 10,000 while position no. 4 concerning the drilling

was dropped because the soil was not hard. Subsequently and contrary

to the result of the negotiation in the applicant's apartment, the

applicant noted on L.'s offer: "Lump sum without VAT of AS 60,000

agreed for completed well".

As the lump sum agreement was contested by L., his company

brought a civil action against the applicant. His son, Helmut, was

heard as witness and confirmed his father's version that a lump sum of

AS 60,000 had been agreed upon. Thereupon criminal proceedings were

instituted against Helmut O. and he was convicted and sentenced for

having given false evidence. His appeal was rejected by the Vienna

Court of Appeal (Oberlandesgericht) on 24 January 1983. In the

criminal proceedings against Helmut O. his father, the applicant, was

heard as witness on 22 March 1982 by the Krems District Court and also

stated that a lump sum of AS 60,000 had been agreed upon. On the

other hand, witness L. stated in these criminal proceedings, as in the

previous civil proceedings, that no lump sum had been agreed upon.

In the criminal proceedings against the applicant the Krems

District Court relied on the previous statements made by L. as witness

in the criminal proceedings against the applicant's son and as a

plaintiff in the civil proceedings against the applicant. These

statements were read out at the trial. The Court considered that a

hearing of L. was excluded for medical reasons as he had only been

released from hospital on 3 March 1986 i.e. one month before the

hearing, having had cardiac treatment after repeated heart attacks, and

as his doctor had told the Court that, in a stress situation, L.

strongly risked a relapse. In these circumstances the Court rejected

the applicant's request to obtain an expert opinion on the question of

whether L.'s physical condition rendered him unfit to appear in court

permanently or only temporarily. The Court stated that, in view of

the fact that L. had had heart attacks in 1979, in November 1985 and

two further ones in February 1986, no particular medical knowledge was

needed to assume that an improvement of L.'s physical condition was

not to be expected. The District Court judge also pointed out that he

had himself heard witness L. in the previous proceedings and therefore

had had the opportunity to form a personal opinion on the question of

whether or not his statements were credible. Therefore a new hearing

of this witness was not absolutely necessary. The court added that

meanwhile five years had elapsed and it was likely that L.'s

recollection of the events had faded. The court considered L.'s

previous statements to be trustworthy as he had described how the

agreement between the parties was reached in a convincing and credible

manner, pointing out that the written offer had been the basis of the

discussions. The court noted that the annotations on the written

offer showed that the different positions had been discussed and

reductions in respect of some of them were effected, while the

applicant's note about a lump sum agreement on the last page of the

offer was not countersigned by L., although it was in the applicant's

interest to have this alleged result of the negotiations confirmed by

the other party in order to exclude any eventual contestation.

Finally the court considered that L. had no interest

whatsoever in accepting a price reduction of 30% which, economically,

would have been unreasonable.

Insofar as the applicant had submitted that L.'s construction

firm repeatedly brought civil actions claiming prices referred to in

written offers although later another price was agreed upon, the Court

noted that, apart from the proceedings against the applicant, no other

proceedings had been brought by L. during the relevant time, i.e. between

1975 and 1980. Certain actions were brought by L.'s firm as from 1983

onwards. However L. suffered his first heart attack in 1979 and was

subsequently no longer fully active in his firm. Therefore the fact

that certain civil actions were brought by L.'s firm as from 1983 in

no way proved the applicant's allegations. The court furthermore

rejected the applicant's request to hear L.'s wife and his son as

witnesses as they had not assisted in the oral negotiations between L.

and the applicant.

The applicant's appeal (Berufung) was rejected on

18 September 1986 by the Vienna Court of Appeal (Oberlandesgericht).

The appellate court considered that the trial court had good reasons

to read out L.'s statements as his medical history clearly showed that

his heart condition was not likely to improve. However, the appellate

court mitigated the sentence and imposed a fine of 200 day rates of

AS 800, to be replaced by 100 days' imprisonment in case of default

of payment.

The Attorney General's Office (Generalprokuratur) then lodged

a plea of nullity for safeguarding the law (Nichtigkeitsbeschwerde zur

Wahrung des Gesetzes) following the applicant's request (Anregung),

pointing out that the applicant's conviction was mainly based on the

statements made by L. in previous proceedings, statements which had

been read out at the applicant's trial despite his objections.

Therefore the trial court, so it was argued, had reason to take all

evidence suggested by the defence to show that L.'s statement was not

trustworthy.

The plea of nullity was rejected by the Supreme Court

(Oberster Gerichtshof) on 21 December 1987. This decision was not

submitted by the applicant.

COMPLAINTS

The applicant considers that he was wrongly convicted and

alleges a violation of Article 6 paras. 1 and 3 (d) of the Convention

because he had no possibility of putting questions to L. whose

statements given in other proceedings incriminated him. He considers

that the trial court wrongly relied on the report given on the

telephone by L.'s doctor instead of obtaining an official expert

opinion on the question whether or not L. was permanently or only

provisionally unfit to give evidence in court.

THE LAW

The applicant has complained that he was wrongly convicted and

sentenced on 7 April 1986 by the District Court in Krems and also of

the court proceedings concerned, alleging violations of Article 6

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

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that in this case the applicant also complains

that his conviction was mainly based on statements read out at his

trial and made by a certain L. in previous proceedings, namely in civil

proceedings between the applicant and L.'s company and in criminal

proceedings against the applicant's son Helmut.

It is true that the European Court of Human Rights held in the

Unterpertinger Case (judgment of 24 November 1986, Series A no. 110,

p. 13-15, paras. 28-33) that the applicant in that case did not have

a fair trial because he was convicted mainly on the basis of "testimony"

in respect of which his defence rights were appreciably restricted. In

fact Mr. Unterpertinger had been convicted mainly on account of

statements made against him to the police by close relatives in the

course of the investigation proceedings. At the trial they availed

themselves of their right to refuse to give evidence but their earlier

statements were read out at the hearing. The defendant was thus

deprived of the right to examine them or have them examined on

their statements as he did not have an opportunity at any stage in the

earlier proceedings to question the persons whose statements were

read out at the hearing.

Whilst in a situation as in the present case it is, in

principle, of particular importance that the accused has an

opportunity to question the only witness who contradicts his own

allegedly false evidence, the Commission notes that L. had already

given evidence in the civil proceedings which had been instituted by

his firm against the applicant. On that occasion the applicant had an

opportunity to question L.'s statements. Furthermore, both L. and the

applicant gave evidence in the criminal proceedings against the

applicant's son, who was accused and convicted of having given the

same false evidence as his father. As the applicant's interest ran

entirely parallel with that of his son, the District Court could

reasonably assume that all arguments which the applicant could raise

against the statement of L. were brought forward, if not in the cited

proceedings, then in the criminal proceedings against the applicant's

son.

The Commission furthermore notes that the trial court judge

pointed out in the judgment of 7 April 1986 convicting the applicant

that as a judge he had also participated in the earlier proceedings

and consequently had had an opportunity to form an opinion on L.'s

credibility when L. was heard in these previous proceedings.

The Commission finally notes that, according to the trial

court's findings, L.'s statement was confirmed by the fact that the

applicant did not have his handwritten note on L.'s offer

countersigned by L. confirming that, contrary to the offer, a

lump sum payment of AS 60,000 had been agreed upon.

As the Court has pointed out in the above-mentioned

Unterpertinger judgment (loc. cit., p. 14 para. 31) the reading-out of

statements cannot be regarded as being in itself inconsistent with

Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) and in view of the

particular circumstances of the present case the Commission cannot

find that the rights of the defence were not complied with, taking

into account that the applicant did have an opportunity in earlier

proceedings to have questions put to the person whose statements were

read out at the hearing in the criminal proceedings against him and

that furthermore his conviction was also based on documentary

evidence.

It follows 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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