Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12477/86

by E.S.

against Austria

The European Commission of Human Rights sitting in private

on 12 December 1987, 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

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 21 August 1986

by E.S. against Austria and registered on 20 October 1986

under file N° 12477/86;

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 facts of the case, as submitted by the applicant, may be

summarised as follows:

The applicant, an Austrian national born in 1927, is a

pensioner. He is presently detained in Garsten prison, Upper Austria.

On 20 November 1985 he was convicted by the Innsbruck Regional

Court (Landesgericht) of burglary (schwerer Diebstahl durch Einbruch)

and of using false documents (Urkundenfälschung).

During the trial the applicant had to leave the Court room

while several witnesses were examined by the Court. His defence

counsel was present during their examination which mainly concerned

the question of the alibi of the applicant's co-accused.

At the trial the applicant had also requested the examination

of two anonymous witnesses.

In its judgment the Court, which had examined the police

officers who had interrogated these anonymous witnesses, referred to

their statements before the police.

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

found that the two witnesses had noticed the applicant's car during

the night when the burglary was committed, and that they had also seen

two men in the vicinity of the place of the crime and had later

recognised the applicant as one of them. The Court, which was not

aware of the identity of these witnesses either and had not examined

them in person, found them to be credible persons.

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 were not allowed by their superiors

to reveal the identity of these witnesses and that otherwise this

prohibition would be circumvented. Moreover, the scope of their

perceptions sufficiently resulted from the statements of the police

officers.

The Court also took into account that the applicant had

admitted having been at the locality in question during the night of

the offence and that a screwdriver with stains of paint was found at

the place of the offence and another screwdriver with identical stains

was later found at the applicant's home. Furthermore, part of the

stolen money consisted of 5- and 10-AS coins of a value between 8000

and 10000 AS, and a considerable sum of money, including a large

number of coins, was discovered in the possession of the applicant

when he was arrested two days after the offence. Finally, the Court

believed the applicant capable of such a crime in view of his previous

convictions.

As regards the conviction for use of false documents the Court

found that the applicant had produced a falsified Italian driving licence

when asked to prove his identity after having been arrested by the

police on 22 May 1985. He had also shown this driving licence at a

traffic control during the spring of 1985.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) was

rejected by the Supreme Court (Oberster Gerichtshof) on 20 March 1986.

The Supreme Court concluded that the examination of the two anonymous

witnesses had not been necessary as their testimony was not relevant

in view of the fact that the applicant had admitted having been at the

locality of the crime at the relevant time. The Court also rejected

the applicant's complaint that he had not been informed of the

testimony of his co-accused who had been examined by the trial court

in his absence. The Court found that according to the minutes of the

trial both accused had been confronted with each other's statements.

Finally, the Supreme Court rejected the applicant's complaint that the

Court had based its judgment - as far as the use of false documents

was concerned - on the applicant's wife's statement before the police

although she had made use of her right to refuse to testify at the

trial.

On 24 April 1986 the applicant's appeal against sentence

(Berufung) was dismissed by the Supreme Court.

COMPLAINTS

Before the Commission the applicant complains of the refusal

of the trial Court to summon the two anonymous witnesses and to

examine them in Court. He invokes Article 6 para. 3 (d) of the

Convention.

He also complains that he was unable to put questions to

other witnesses because he had been removed from the Court room during

their examination.

He also alleges that the police did not find a

screwdriver at the place of the crime and that the statement to the

contrary made by a police officer at the trial was untrue.

He further contends that he did not produce the false driving

licence when asked by the police to prove his identity, but that this

licence was found on him when he was searched. Therefore he did not

"use" a falsified document and consequently he did not commit an

offence under Austrian law.

By letter of 29 June 1987 the applicant added a further

allegation of a violation of Article 13 of the Convention. Apparently

this allegation relates to the refusal, on 25 June 1986, of the Review

Chamber (Ratskammer) of the Innsbruck Regional Court to institute

criminal proceedings against two police officers who allegedly had

given false testimony at the applicant's trial.

THE LAW

1. The applicant complains that he was wrongly convicted and

sentenced on 20 November 1985 by the Innsbruck Regional Court and also

of the court proceedings concerned.

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 constant

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222;

No. 5258/71, Dec 8.2.73, Collection 43 p. 71; No. 7987/77, Dec.

13.12.79, D.R. 18 p. 31).

Consequently, the Commission will not re-evaluate the evidence

given or interpret the relevant Austrian law as applied in the instant

case. In particular, as far as the question of the applicant's

Italian driving licence and of the screwdriver is concerned, the

Commission notes that the applicant had, according to the minutes of

the trial, the opportunity to put questions to the two police officers

giving testimony on these points before the trial Court. The

Commission finds no indication that any of the applicant's rights

under the Convention was violated in this respect. On the other hand,

the evaluation of evidence obtained in accordance with the guarantees

provided for in the Convention is, in principle, for the trial Court

which establishes the facts of the case by weighing the - conflicting,

as the case may be - evidence before it.

It is true that in this case the applicant also complains that

the Regional Court did not itself hear the two anonymous witnesses. In this

connection he alleges a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention.

However, Article 6 para. 3 (d) (Art. 6-3-d) does not grant the defence

total freedom to call any potential witness at any time in the proceedings, but

allows a refusal to call witnesses whose statements are not likely, with regard

to the charge, to assist in ascertaining the truth (cf. e.g. No. 8231/78, Dec.

6.3.82, D.R. 28 p. 1. [25]; No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127 [135]).

In the present case, the Supreme Court, whose decision must

also be taken into account when assessing the fairness of the

proceedings, found that the testimony of the two anonymous witnesses

was not relevant to the applicant's conviction. Again, the Commission

will not re-assess such a finding unless there are indications that it

is based on arbitrary or unreasonable considerations. The Commission

notes in this context that the applicant had admitted having been in

the vicinity of the place of the crime during the night in question and

that the testimony of these two witnesses was limited to the statement

that they had seen the applicant (and another man) and his car at this

place during this very night. Under the circumstances the Commission

cannot find that the refusal to hear these two witnesses in person was

unjustifiable or arbitrary although the reasons given therefor by the

Regional Court might in different circumstances raise an issue under

the Convention.

It follows that this part of the application is manifestly

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

Convention.

2. The applicant also complains that he was removed from the

Court room during the examination of several witnesses and that he had

no opportunity to put questions to them.

It is true that the removal of an accused from the

Court room when witnesses are heard in a case against him may raise an issue

under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention (cf. No. 8395/78,

Dec. 16.12.81, D.R. 27 p. 50 [54]). However, under Article 26 (Art. 26) of the

Convention, the Commission may only deal with a matter after all domestic

remedies have been exhausted according to the generally recognised rules of

internation law.

The Commission notes that in the instant case the applicant

did not raise this particular complaint in his plea of nullity. It is

true that before the Supreme Court he complained that he had not been

duly informed of the statement of his co-accused who had been examined

in his absence - an issue which he does not pursue in the present

application - but he did not complain of his removal from the Court

room during the examination of witnesses. He has not therefore

exhausted the remedies available to him under Austrian law. Moreover,

an examination of the case does not disclose the existence of any

special circumstances which might have absolved the applicant,

according to the general recognised rules of international law, from

exhausting the domestic remedies at his disposal.

Accordingly, this part of the application must be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

3. As regards, finally, the applicant's allegation of a violation

of Article 13 (Art. 13) of the Convention, the Commission recalls that the

Convention does not as such guarantee a right to institute criminal

proceedings against third persons (No. 7116/75, Dec. 4.10.76; D.R. 7

p. 91). In particular, Article 13 (Art. 13) does not confer upon a convicted

person the right to challenge the trial Court's findings by way of

instituting criminal proceedings against witnesses who allegedly gave

false testimony.

This part of the application must therefore be rejected as

being incompatible ratione materiae with the provisions of the

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

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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