FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28328/03 by Johann AIGNER against Austria

The European Court of Human Rights ( First Section), sitting on 15 February 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , Mr G. Malinverni, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 16 August 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated decides as follows:

THE FACTS

The applicant, Mr Johann Aigner , is an Austrian national who was born in 1954 and lives in Graz . He was represent ed before the Court by Mr Peter Steinbauer, a lawyer practising in Graz . The respondent Government are represented by their Agent, Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

A. The circumstances of the case

On 20 March 2001 Mrs K was questioned by the police after shouting from the window of the applicant ’ s room. She stated that she had met the applicant that afternoon in a public house . After visiting further pubs she had accompanied him to his rented room where, she alleged, he had attempted to rape her. On 21 March 2001 Mrs K was again questioned by the police and criminal proceedings were instituted against the applicant.

Between 1.04 p.m. and 3.16 p.m. on 18 April 2001 Mrs K was questioned by the investigating judge in the presence of the applicant, his lawyer, a psychiatric expert Mr H and the court stenographer. The applicant and his lawyer were given the opportunity to put questions to Mrs K and the hearing was recorded on video. Mrs K stated that in the course of the attempted rape the applicant had hit her across the left temple, grabbed her by the hair and threatened her with a knife. In the course of the struggle she had injured her hand on the knife. Mrs K also stated that she had worked as a prostitute between 1990 and 1996/97 but said that the applicant had been unaware of this. At the end of the examination the applicant ’ s counsel stated that she had no further questions to put to Mrs K.

On 9 October 2001 the Graz Regional Court ( Landesgericht ) convicted the applicant of attempted rape with violence. At the trial Mrs K refused to give evidence. The applicant appealed to the Supreme Court ( Oberster Gerichtshof ), which upheld his plea of nullity and quashed the conviction. It found that the proceedings before the Regional Court were defective under Article 258 of the Code of Criminal Procedure ( Straf prozeßrechtsordnung ) as the Regional Court had based its findings on Mrs K ’ s statements to the police, which had not been read out at the trial.

The Regional Court then resumed the proceedings in a new composition. At hearings on 1 July, 26 August, 15 October and 19 November 2002, it heard evidence from the applicant and further witnesses. These witnesses included Mr S, a waiter working in one of the pubs which the applicant had visited with Mrs K, Mrs P, the innkeepe r of another pub, and Mr L, Mrs K ’ s partner. In the course of their testimony these witnesses made inter alia the following statements : Mr S, who had previously stated that he had noticed a blue mark on Mrs K ’ s left temple, now said that he did not know where exactly the blue mark was and that he had not seen Mrs K ’ s face. Mr P stated that Mrs K ’ s behaviour often became erratic after she had consumed alcohol, that she frequently sought refuge from her partner and later invented a pretext, that her partner beat her a nd she often had black eyes. Mr L stated that Mrs K had worked as a prostitute but had stopped doing so some months prior to the incident.

The Regional Court also heard evidence from four police officers who had been called to the scene. All of them h ad noticed a knife wound on Mrs K ’ s hand. Two officers had noticed a slight swelling on her temple. Another police officer had noticed loose strands of Mrs K ’ s hair including some on the applicant ’ s clothes.

The Regional Court also heard evidence from Mr H, who had submitted an expert opinion on the question of the extent to which Mrs K ’ s alcohol levels at the time of the events had affected her ability to remember the events. Mr H had stated that Mrs K ’ s statements were likely to be true.

Mrs K was invited to give evidence while the applicant, pursuant to Art icle 250 of the Code of Criminal Procedure, was conducted to an adjacent room. However, as Article 152 § 1 subsection 2a of the Code of Criminal Procedure entitled her to do, Mrs K refused to give evidence and requested that the statements she had made to the police and the investigating judge be read out. The court granted her request and a further request by her for the video recording of her deposition before the investigating judge to be shown. However, when played, the video recording turned out to be a blank tape.

The applicant contested Mrs K ’ s credibility. He argued in particular that her account of how she had come to be in his room and of her conduct after the alleged offence was not plausible and requested the court to inspect the scene. He further contended that there were a number of discrepancies between the events as described by Mrs K to the police and those she had described to the investigating judge, and, between her evidence and the evidence given by the witnesses, Mr S, Mr L and Mr P, had given at the trial. He therefore requested the court to call again Mrs K and, to the extent his opinion was of relevance for the court, the expert witness Mr H. The applicant submitted that Mr H should also give evidence on the methods he had used to assess Mrs K ’ s credibility and the kind of questions he had asked when she appeared before the investigating judge. The applicant argued, lastly, that, in view of the large number of contradictions in the evidence given by Mrs K, who was the sole prosecution witness, it was essential for the court to view the video recording of her hearing in order to be able to assess her credibility. He added that, if the recording could not be shown, then he should be given the benefit of the doubt and acquitted.

The court dismissed the applicant ’ s requests for the further taking of evidence. It did not consider it opportune to visit the scene as the room in question was no longer in the state it had been at the material time. Furthermore, the premises could be seen from a file of photographs prepared by the police and it was for the court to analyse the inconsistencies between Mrs K ’ s and the applicant ’ s differing statements. For the latter reason it also refused to put further questions to Mr H. Lastly, it dismissed the applicant ’ s request for Mrs K to be called again to give further evidence as she had refused to give evidence at the trial and there was no indication that she would change her mind.

On 19 November 2002 the Regional Court , sitting in a formation of two professional judges and two lay judges , convicted the applicant of attempted rape with violence . It relied only partly on Mrs K ’ s statements to the police and the investigating judge as it noted that Mrs K had been under the influence of alcohol to a considerable degree at the time of the events. The court accepted the applicant ’ s argument that Mrs K had accompanied him to his room voluntarily. It found, however, that despite Mrs K ’ s inability to recall the events immediately before and after the attempted rape, her allegations of assault were credible. It noted in this regard that they were consistent with the other evidence obtained in the proceedings , namely the injuries to Mrs K witnessed by the police officers . The court did not believe the applicant ’ s account that he had invited Mrs K for drinks all afternoon and then to his room out of sympathy for her. It further noted that the applicant could not give any convincing reason for the fact that strands of Mrs K ’ s hair had been spotted by a police officer on his cloth e s. Furthermore, it did not believe the applicant ’ s assertions that Mrs K had injured herself in a fall on the way from the pub to his flat or that she had not suffered any other injuries, in particular the wound to her hand. Having regard to Mrs K ’ s injuries and to the applicant ’ s criminal record of eleven previous convictions, it sentenced the applicant to three years ’ imprisonment. Referring to a psychiatric expert opinion, it further ordered that he be detained in an institution for mentally ill offenders.

The applicant filed a plea of nullity with the Supreme Court ( Oberster Gerichtshof ) in which he complained inter alia about the dismissal of his requests for further evidence to be taken. He submitted in particular that the photographs to which the Regional Court had referred did not show the room as it was at the time of the events. He argued that in view of the various inconsistencies in Mrs K ’ s description of the events, the Regional Court should have visited the scene in order to stage a reconstruction. He further argued that the proceedings had been conducted contrary to the direct evidence rule ( Unmittelbarkeit ) in that the trial court had not seen the video recording of the hearing at which the depositions were taken. In view of this and of new evidence that had come to light at the trial, namely the statement by Mrs P that Mrs K frequently made up stories as she feared being beaten up by her partner, the trial court should have recalled Mrs K or, at least, allowed further questions to be put to Mr H. In the applicant ’ s submission, the proceedings had therefore violated his right under Article 6 of the Convention to conduct his defence effectively.

On 20 February 2003 the Supreme Court rejected the applicant ’ s plea of nullity. It noted that no inspection of the scene was necessary as the applicant ’ s intention was to prove that Mrs K ’ s allegations concerning the way to his room and her behaviour after the attempted rape were not true; however, these facts had not been relevant to the court ’ s decision. As regards his request to call again Mrs K, the applicant had not submitted any reasons why Mrs K would be prepared to give evidence after refusing to do so at the trial on 1 July 2002. The Supreme Court also found that the applicant ’ s request to hear further evidence from Mr H had not been sufficiently substantiated as it was conditional. In any event, the Regional Court had not relied on Mr H ’ s expert opinion in its judgment. The Supreme Court noted, lastly, that the Regional Court had dealt with the inconsistencies between Mrs K ’ s statements to the police and to the investigating judge and between her statements and Mrs P ’ s statement in the context of its assessment of evidence, an assessment that appeared logical.

On 9 April 2003 the Graz Court of Appeal ( Oberlandesgericht ) dismissed the applicant ’ s appeal, but granted the Public Prosecutor ’ s cross - appeal and increased the sentence to four years ’ imprisonment. This decision was served on the applicant ’ s counsel on 9 May 2003.

B. Relevant domestic and international law

A rticle 258 of the Code of Criminal Procedure ( Strafprozessordnung ) provides that all evidence must in principle be taken at the trial. I n particular , witnesses and experts must make their statements orally before the court. Documents may only be used as evidence if they have been read out in court.

Article 252 lays down that court transcripts of the questioning of witnesses, other official documents in which statements of witnesses have been recorded and technical recordings of the questioning of witnesses may only be read out or shown at the trial if the witnesses concerned are entitled to refuse to give evidence at the trial (Article 152) and the parties have had the opportunity to participate in the questioning (Article 162a and 247).

Article 162a § 1 of the Code of Criminal Procedure provides for an adversarial hearing before the investigating judge if, on factual or legal grounds, there is reason to fear that the hearing of a witness will not be possible at the trial. The public prosecutor, the defendant and the defendant ’ s lawyer should be given an opportunity to attend the hearing and question the witness.

Article 152 § 1 subsection 2a states that victims of sexual offences by the accused are exempted from giving evidence at the trial if there has been an adversarial hearing of the victim in the preliminary proceedings. This provision was introduced as part of the 1998 reform of the Code of Criminal Procedure. Prior to this reform, only minors aged under fourteen at the time of an alleged sexual offence were exempted from giving evidence at trial. The respective explanatory notes to the government bill ( Erläuterungen zur Regierungsvorlage ) state as follows:

“In fact it is to be assumed that the manner in which and date on which the victim gives evidence in criminal proceedings are closely linked to the context of the conflicting aims of victim protection, defence rights and the interest of prosecution. The 1993 reform of the Code of Criminal Procedure has already taken account of the necessary rights for the defence to participate in the proceedings and to question [the victim] and these are also relevant to the provisions of the European Convention of Human Rights. However, it would also appear to be in the interest of victims of sexual offences aged over fourteen for them to be questioned only once, as, in general, making a statement places a heavy mental burden on them. On the other hand, it cannot be overlooked that if the victim is only questioned once and at an early date, there is a danger that it will not be possible to obtain complete consistency between this testimony and the results of subsequent investigations or examinations ... However, the argument in favour of nevertheless increasing procedural safeguards for the alleged victims of sexual offences is the danger of the court proceedings causing damage and traumatisation [to the victim] (secondary victimisation) which has, incidentally, been highlighted by all the experts who work with such victims. When responsibly weighing these interests of the victim against the interests of ascertaining the facts, preference must nevertheless be given to the protection of the victim, especially since it is usually possible to at least partly counterbalance the possible negative effects on evidence by corresponding ‘ case management ’ and since an examination at a potentially early date is not only in the interest of the witnesses but also promotes the purpose of the procedure, as recollections will still be fresh.”

Article 250 of the Code of Criminal Procedure provides that the presiding judge at the trial may exceptionally order an accused to be held in an adjacent room while a witness gives evidence. The accused must be informed of all statements made in his absence.

Article 3 of the Council Framework Decision [1] no. 2001/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings requires each Member State inter alia to supply evidence and to take appropriate measures to ensure that its authorities question victims only in so far as necessary for the purpose of criminal proceedings. Articles 2 and 8(4) require each Member State to make every effort to ensure that victims are treated with due respect for their personal dignity during proceedings, to ensure that particularly vulnerable victims benefit from specific treatment best suited to their circumstances and to ensure that where there is a need to protect victims, particularly those most vulnerable, from the effects of giving evidence in open court, victims may, by decision taken by the court, be entitled to testify in a manner enabling that objective to be achieved, by any appropriate means compatible with its basic legal principles.

In its judgment of 16 June 2005 in case no. C-105/03, the European Court of Justice stated that the objectives of these provisions consist, in particular, in ensuring that particularly vulnerable victims receive “specific treatment best suited to their circumstances” and the benefit of special hearing arrangements that are capable of guaranteeing to all victims treatment which pays due respect to their individual dignity and gives them the opportunity to be heard and to supply evidence, and in ensuring that those victims are questioned “only insofar as necessary for the purpose of criminal proceedings”. Where national legislation allows testimony to be given only once, during the preliminary enquiries, a national court should be able, in respect of particularly vulnerable victims, to use a special procedure if it best corresponds to the situation of the victims and is necessary in order to prevent the loss of evidence, to reduce the repetition of questioning to a minimum and to prevent the damaging consequences, for the victims, of their giving testimony at the trial.

COMPLAINTS

The applicant complained that the Regional Court had not been able to form a personal impression of Mrs K giving evidence as the video recording of her adversarial hearing was defective. Evidence obtained after Mrs K ’ s adversarial hearing, namely the statements of witnesses Mrs P, Mr S and Mr L at the trial, conflicted with Mrs K ’ s description of the events. However, the court had refused the applicant ’ s requests for leave to put further questions to Mrs K at the trial, or, alternat ively, to the expert witness Mr H. The proceedings had, therefore, been conducted in breach of the applicant ’ s right to defend himself effectively under Article 6 §§ 1 and 3 (d) of the Convention . The applicant further complained that the Regional Court had refused to visit the scene of the alleged offence. He finally complained about the courts ’ assessment of the evidence.

THE LAW

The applicant complained that the criminal proceedings against him had been conducted in breach of his right to defend himself effectively. He further complained about the courts ’ assessment of the evidence. He relied on Article 6 §§ 1 and 3 (d) of the Convention which, in so far as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) 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;” .

A. Article 35 § 1 of the Convention – the six - month s time-limit

The Government argued that the application had been filed outside the six-month s time-limit. The final domestic decision was served on the applicant on 9 May 2003 while his application form to the Court was dated 28 January 2004.

The applicant did not comment on this.

The Court reiterates that the running of the six - month s time-limit imposed by Article 35 § 1 of the Convention is, as a general rule, interrupted by the first letter from the applicant indicating an intention to lodge an application and giving some indication of the nature of the complaints made ( Chalkley v. the United Kingdom (dec), no. 63831/00, 26 September 2002 ).

In the present case, the applicant wrote to the Court on 16 August 2003, stating that he wished to complain about alleged unfair criminal proceedings that had led to his unjustified conviction o f attempted rape. On 28 January 2004 he submitted the completed application form with detailed arguments concerning complaints under Article 6 §§ 1 and 3 (d) of the Convention of an alleged breach of his right to conduct his defence effectively and about the assessment of th e evidence by the courts. On 21 March, 12 June and 25 September 2004 he submitted further arguments on the latter point.

In these circumstances, the Court finds that the application was introduced on the date of the applicant ’ s fir st letter, that is to say on 16 August 2003. It was therefore introduced within six months after the service of the final decision on 9 May 2003 and cannot be rejected for failure to comply with the six-mont h time-limit imposed by Article 35 § 1 of the Convention. The Government ’ s objection accordingly fails.

B. The applicant ’ s trial and conviction

1. The applicant complained that the criminal proceedings had been conducted in breach of his right to conduct his de fence effectively under Article 6 §§ 1 and 3 (d). He referred in this regard to the courts ’ refusal to put further questions to Mrs K or, alternatively, the expert witness Mr H at the trial. He further complained that the Regional Court had refused to visit the scene of the alleged offence.

The Government contested the applicant ’ s complaint. They argued that an extremely comprehensive adversarial hearing of Mrs K had taken place before the investigating judge in the presence of the applicant and his counsel, who had had the opportunity to put questions. Subsequently, as Mrs K was entitled to refuse to give evidence, her testimony had been read out at the trial. This was admissible evidence under domestic law. It had not been possible to show the video recording, but in any event, this was not a mandatory requirement. The first-instance court had been able to obtain a clear impression of the victim ’ s evidence as a comprehensive record had been kept. Moreover, the applicant had no t indicated any reasons why Mrs K would be prepared to give evidence at the trial despite her previous refusal to do so.

While the relevant domestic legislation restricted the direct taking of evidence at trial in order to avoid further victimisation of a witness by repeated questioning, fairness was nevertheless guaranteed to some extent by the fact that in such cases the investigating judge was able to form an immediate impression of the witness. In criminal proceedings concerning alleged sexual offences courts had to weigh the victim ’ s interest against those of the accused and strike a fair balance. The legislature considered it necessary to restrict the questioning of victims of sexual offences to the extent necessary to protect the victim, for whom giving evidence was generally a traumatic experience. The Government referred in this regard to the explanations that had been given in the relevant government bill (see the section on “Relevant domestic and international law” above). The right of victims to refuse to give evidence at trial stemmed from the experience that requiring a victim to recount a sexual assault in detail under repeated questioning placed a special burden on him or her and had, therefore, to be kept to an absolute minimum. In this regard the Government further referred to EU legislation, namely the Council Framework Decision 2001/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings and its interpretation by the European Court of Jus tice in its judgment of 16 June 2005 in case no. C-105/03 (see the section on “Relevant domestic and international law” above). In the present case, a balance had been struck between Mrs K ’ s and the applicant ’ s rights as the first-instance court had not relied exclusively on Mrs K ’ s statements. It had dealt with the inconsistencies between Mrs K ’ s own statements and between her statements and the statement of Mrs P. It had had regard to Mrs K ’ s considerable alcohol consumption at the material time and the resulting gaps in her memory. It had then preced ed to follow those parts of Mrs K ’ s description of the events it considered realistic and consistent with the other evidence. The domestic courts had also given sufficient reasons for dismissing the applicant ’ s further requests to visit the scene and for leave to put further questions to the expert witness Mr H.

The applicant contested these arguments. He contended that while it was true that he and his counsel had been able to question Mrs K during the preliminary proceedings, they had not been able to confront her with the new evidence that had been obtained at the trial, namely Mrs P ’ s statement that Mrs K had often invented stories in order to avoid being beaten up by her husband. He said that, in accordance with its duty to ascertain the truth ex offic i o , the court should have examined Mrs K again. As the video recording of Mrs K ’ s testimony could not be shown, the court had not been able to form an impression of the prosecution ’ s only eye witness or, therefore, to assess her credibility. This omission was all the more important in that Mrs K was a former prostitute and an alcoholic. Furthermore, an inspection of the scene should have been carried out. There were discrepancies and incoherencies in Mrs K ’ s description of the events. For instance, she had stated that the applicant had hit her in the face; however, at the trial another witness had stated that he had noticed an injury to her face before the time the offence was alleged to have been committed. After the alleged attempted rape the police could not find any evidence of a struggle in the room. Furthermore, Mrs K ’ s description of the way to the room was incorrect. Further questions to the expert would have confirme d that Mrs K was not a credible witness.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Cou rt unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application admissible, without preju dging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President

[1] Under Article 34 (2) of the Treaty of the European Union, the Council may adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions are binding upon the Member States as to the result to be achieved but leave to the national authorities the choice of form and methods.