Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12124/86

by N.I.

against Austria

The European Commission of Human Rights sitting in private

on 15 October 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

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. 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 24 April 1986

by N.I. against Austria and registered on 28 April 1986 under

file N° 12124/86;

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, a Turkish citizen born in 1945, is a restaurant

manager resident in F. in Austria. Before the Commission he is

represented by Dr. Weh, a lawyer practising in Bregenz.

I.

The applicant and a certain Mr. A.I., a Turkish citizen, were

both managers of the A. Restaurant in Bregenz. The applicant thought

he had been deceived by A.I. as the latter did not comply with the

agreement that they would profit in equal parts from their business.

According to the later judgment of the Feldkirch Regional Court

(Landesgericht) of 1 July 1985, the following events occurred on

3 and 4 March 1985:

On 3 March 1985 the applicant went to the restaurant at 9 pm.

After midnight, i.e. on 4 March 1985, he accused K.I., the son of

A.I., of having charged a guest too much. Thereupon K.I. hit the

applicant in the face. The applicant then approached A.I. The

applicant took a bottle, broke it, and directed the bottle neck

towards A.I.'s face. When a certain Mr. V.K. managed to take the

bottle neck away, the applicant fetched a kitchen axe and threatened

to kill A.I. and K.I. Again V.K. took it away. The applicant fetched

a kitchen knife which V.K. also took away. During these events the

applicant uttered various threats, inter alia that he would kill

A.I.'s family.

The applicant was eventually brought out of the restaurant

and taken home to his residence in F. by his brother who had also

been present in the restaurant. After a short time the applicant left

his residence on foot. At 2.30 am on 4 March 1985 he was stopped by

police who found on him a pistol and a flick-knife. He was apparently

remanded in custody and later questioned by the police and the

investigating judge.

II.

Criminal proceedings were instituted against the applicant.

At the trial (Hauptverhandlung) the Feldkirch Regional Court heard the

applicant on 1 July 1985 together with nine witnesses, among them

A.L., his son K.I., the applicant's brother and V.K. An interpreter

was present. The witnesses were also questioned by the applicant.

According to the minutes of the trial, the applicant denied

having threatened A.I. and K.I. in the restaurant. The witnesses A.I.

and K.I. both stated that the applicant had broken a bottle and

intended to hit A.I.'s face with it; later the applicant had

threatened A.I. with a kitchen axe and a knife. However, K.I. denied

having hit the applicant in the face. The witness V.K. stated that

the applicant had broken a bottle and directed it towards A.I. Later

the applicant had also threatened A.I. with a kitchen axe and a knife.

The minutes of the trial state that, after the witnesses had

been heard, "the documents, of which the reading out has been requested,

are still produced and read out" ("Dargetan und verlesen werden noch

die zur Verlesung beantragten Aktenstücke").

According to Section 252 para. 3 of the Austrian Code of

Criminal Procedure (Strafprozessordnung), every time minutes are read

out at the trial, which concern the interrogation of witnesses or

co-accused, the defendant must be asked whether he wishes to comment

thereupon.

III.

On 1 July 1985 the Regional Court convicted the applicant

according to Section 107 of the Austrian Criminal Code

(Strafgesetzbuch) of committing a dangerous threat (gefährliche

Drohung). The Court held in particular that the applicant had on 4

March 1985 in Bregenz threatened, inter alia, that he would kill A.I.

and K.I., and that he had directed a bottle neck and tried to throw a

kitchen axe and thrust a kitchen knife towards A.I. The applicant,

who was also convicted of unauthorised possession of arms, was

conditionally sentenced to a fine of 48'000.-AS.

In respect of the offence of a dangerous threat the Court held

in its judgment that the various facts of the case were clear on the

basis of the police investigations and the witnesses' testimony though

the applicant's statements were in many respects incredible. Thus,

that night he had been mad with rage (rasend vor Wut). While before

the police he admitted taking a bottle, breaking it on the floor and

using it as a weapon, before the investigating judge and the Court he

stated that he had broken it but denied directing it towards A.I. The

Court found that this last statement was clearly contradicted by A.I.

and K.I. and especially V.K. Before the police even the applicant's

brother stated that the applicant had intended to defend himself

towards K.I., though this testimony had no value since he was a close

relative of the applicant.

The Court saw no contradictions in the main points in the

testimony of A.I., K.I. and V.K., though K.I.'s testimony had been

convincingly contradicted in another respect by other witnesses,

namely that he had hit the applicant twice. On the whole, the Court

placed particular importance on the testimony of V.K. who had acted as

a mediator in the conflict. His testimony was corroborated before the

police by a certain Mr. S.Y., who also confirmed that the threats had been

uttered by the applicant.

Insofar as the applicant had adduced exculpatory witnesses, the

Court noted that they had all evidently looked away during the critical

moments. For instance, one of these witnesses said that he had not

seen the applicant breaking a bottle, a fact which the applicant himself

had admitted. The Court also discussed in detail the evidence of

other exculpatory witnesses.

In respect of the occurrences after the applicant had been

brought home, the Court found that the applicant was obviously

protecting himself when he explained that he had intended to walk to

his brother in another village in order to hide his wounded face from

his family. In view of the previously uttered threats towards A.I.'s

family it was very likely that the applicant was on his way to carry

them out.

The applicant filed an appeal (Berufung) in which he

complained inter alia that the Regional Court should not have

considered the minutes of the police (Gendarmerieprotokolle) as they

had not been read out at the trial; in any event it would be

inadmissible to read them out in court.

On 24 August 1985 the Innsbruck Court of Appeal (Oberlandes-

gericht) dismissed the appeal insofar as it concerned nullity and

conviction but upheld it insofar as it concerned punishment. In

particular, the Court reduced the applicant's conditional punishment

to the amount of 30'000.-AS.

The Court of Appeal dismissed in particular the applicant's

complaint concerning the police minutes since according to the trial

minutes of the hearing of 1 July 1985 the police minutes had in fact

been read out before the Regional Court. The latter had therefore

been able to take into account the investigations and minutes of the

police when reaching its judgment. Moreover, Section 252 para. 2 of

the Code of Criminal Procedure (Strafprozessordnung) required that the

police notification (Gendarmerieanzeige) was read out in Court.

The Court of Appeal also found that the applicant's

submissions were incorrect insofar as the lower Court had allegedly

not determined the subjective aspects of the act at issue. In fact,

the Regional Court had in its judgment clearly considered this aspect,

in particular the intention of the applicant. Whether or not other

persons had actually been frightened was irrelevant. Finally, the

Court of Appeal saw no objection to the manner in which the previous

Court had considered the evidence.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the Regional Court regarded the evidence of K.I. which incriminated the

applicant as credible even though K.I. had clearly committed false

testimony when he stated that he had not hit the applicant. Moreover,

the threat which the applicant committed did not suffice to place the

other persons "during a longer period of time into an agonising state"

as required by Section 107 para. 2 of the Criminal Code. In general

the witnesses' testimony was too contradictory to enable the assessment

of the truth.

Also under Article 6 the applicant complains that the Regional

Court had recourse to the police minutes when reaching its judgment,

in particular whenever the applicant later made different statements,

thus removing the proceedings from the public sphere of court

proceedings to the non-public sphere of the executive.

Under Article 6 para. 3(e) of the Convention the applicant

complains that the Court had resort to police minutes although before

the police he had not had the assistance of an interpreter. Under

Articles 3 and 6 para. 1 of the Convention he complains that the Court

considered police minutes which were taken down while he was not yet

sober and without his having been able to contact his family or other

persons.

The applicant complains that for these various reasons the

police minutes should not have been read out at the trial. He also

submits that, contrary to the trial minutes, the police minutes were

in fact not read out at the trial.

THE LAW

1. The applicant complains that the Regional Court wrongly

regarded the testimony of K.I. as credible, and that not all the

conditions for a conviction under Section 107 para. 2 of the Criminal

Code had been met. He also complains that he did not have a fair

trial within the meaning of Article 6 (Art. 6) of the Convention.

Nevertheless, 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. 485/59, 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 follows that the

Commission cannot examine for instance whether or not the testimony

of the witnesses was credible or whether or not all the conditions for

a conviction under Section 107 para. 2 of the Criminal Code were met

in the applicant's case.

It is true that the applicant has also complained under

Article 6 (Art. 6) of the Convention that the witnesses' testimony was too

contradictory to enable the assessment of the truth and that the

Regional Court had recourse to the police minutes when reaching its

judgment, in particular whenever the applicant changed his statements.

The applicant also complains that the Court had recourse to minutes

which were prepared when he was not sober and without his having the

assistance of an interpreter or being able to contact his family. The

applicant complains that for various reasons the police minutes should

not have been read out at the trial. He also submits that, contrary

to the trial minutes, the police minutes were in fact not read out at

the trial.

However, the Commission sees no indication that the applicant

who was represented by a lawyer could not present his case properly

before the Regional Court or the Court of Appeal or that the

proceedings were improperly conducted by these courts. Thus, at the

trial the applicant was heard by the Regional Court together with nine

witnesses. Throughout the trial he was assisted by an interpreter.

When reaching its judgment the Regional Court considered in detail the

various statements made by the applicant as well as both the

incriminating and exculpatory testimony of the witnesses. The Court

thereby regarded the available evidence concerning the applicant as

sufficient and based its conviction on the corresponding testimony of

the witnesses A.I., K.I. and in particular V.K. and the confirmation

thereof by further witnesses.

The applicant has also complained of the recourse by the

Regional Court to the police minutes when reaching its judgment. The

Commission has examined these complaints under Article 6 paras. 1 and 3(d)

(Art. 6-1, 6-3-d) of the Convention. It recalls that the reading out of

statements at the trial cannot in itself be regarded as being inconsistent with

these provisions. Nevertheless, the use made of these statements must comply

with the rights of the defence. A person charged with a criminal offence must

have the opportunity to examine or have examined witnesses against him,

particularly if he has not had the opportunity at an earlier stage in the

proceedings to question the persons whose statements are read out at the trial

(see Eur. Court H.R., Unter- pertinger judgment of 24 November 1986, Series A

No. 110, para. 31).

In the present case the Commission notes that according to

the minutes of the trial of 1 July 1985 before the Regional Court the

documents of which the reading out had been requested were indeed read

out. Upon appeal, the Court of Appeal confirmed both that the police

minutes had been read out and that this reading out complied with

Austrian law.

Moreover, the applicant has not alleged before the Commission

that he could not inform himself of the contents of the police minutes

before the trial. The Commission also observes that the Regional

Court founded its judgment substantially on the testimony of A.I.,

K.I. and V.K. These witnesses appeared at the trial and the applicant

had the opportunity to question them and did in fact do so. Finally,

the Commission considers that, according to Section 252 para. 3 of the

Code of Criminal Procedure, after every reading out of minutes such as

the police minutes, the defendant must be asked whether he wishes to

make comments thereupon. The applicant therefore had an opportunity

to confront the witnesses with the police minutes.

As a result, the above complaints do not disclose any

appearance of a violation of the rights set out in Article 6 (Art. 6) of the

Convention. The Commission concludes 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 under Article 3 (Art. 3) of the Convention

that the Court considered police minutes which were taken down while

he was not yet sober and without his having been able to contact his

family or other persons.

However, the Commission finds no issue under this provision.

It follows that the application is in this respect also 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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