THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42780/98 by I.H., Me.H ., R.H. and Mu.H . against Austria

The European Court of Human Rights (Third Section), sitting on 23 October 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. KÅ«ris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mr T.L. Early , Deputy Section Registrar

Having regard to the above application introduced with the European Commission of Human Rights on 23 July 1998 and registered on 14 August 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants, four in all, are Austrian nationals of Turkish origin, born in 1978, 1959, 1959 and 1961 respectively, and are living in Lustenau (Austria). The second applicant is the first applicant’s father, the third applicant his mother and the fourth applicant his uncle. They are represented before the Court by Mr W.L. Weh , a lawyer practising in Bregenz (Austria).

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 21 March 1997 the Feldkirch Public Prosecutor filed a bill of indictment against the applicants charging them with rape under section 201 § 2 of the Penal Code, coercion and deprivation of liberty. The public prosecutor stated that since September 1995 the first applicant had been the fiancé of F.D. Their future marriage had been arranged by their respective fathers. After the death of F.D.’s father in May 1996, F.D. considered herself no longer bound by the promise of betrothal given by her father. She told this to the first applicant and his parents who, however, refused to accept her change of mind.

Ever since the death of F.D.’s father the second applicant regularly brought F.D. by car to her place of work and drove her home again after work. On 22 July 1996, around 5.00 a.m., the second applicant, accompanied by the first and third applicant, picked up F.D. and brought her to the home of the fourth applicant. The second applicant told her that she was going to have sexual intercourse with the first applicant. He also told her that if she resisted she would be held by the second and fourth applicants and that the third applicant would force her legs apart. She was accompanied to the bedroom. The first applicant attempted to have sexual intercourse with her, but this attempt failed because of F.D.’s resistance. Thereupon, the first applicant requested the third applicant to help him. The third applicant tied F.D.’s hands with adhesive tape and stuck a strip of adhesive tape over her mouth. She then held F.D.s arms while the first applicant had intercourse with F.D. Thereafter, F.D. was constrained to spend the rest of the day with the first applicant in the house.

The second and third applicants phoned her mother and told her that F.D. had been kidnapped by them and that she should not contact the police, otherwise F.D. would be killed. Nevertheless, F.D.’s mother informed the police about the incident. Around 8.00 p.m. F.D. was allowed to phone her mother. Soon afterwards police officers arrived at the house and arrested all four applicants.

On 23 May 1997 the applicants’ trial was held before the Feldkirch Regional Court. The applicants, assisted by counsel, Mr. Weh , protested their innocence and claimed that F.D. had accompanied them voluntarily in order to become closer acquainted with the first applicant’s uncle and that, on this occasion, she had had sexual intercourse with the first applicant of her own free will. No violence whatsoever had been used against her The court heard the applicants and several witnesses, including the victim, her mother and a doctor who had examined the victim at the hospital. F.D. repeated to the court the statements she made to the police and the investigating judge, but added that her family and the applicants’ family had meanwhile settled the matter and that she had received a payment of 50,000 ATS from the applicants’ family.

At the close of the hearing the applicants requested the court to hear further evidence from S.G., a neighbour of the fourth applicant, on the question of her hostility towards the fourth applicant, from T.S., the doctor of F.D.’s mother, on her state of health and her medical treatment, and from H.F., a lawyer, on the agreement reached between the families. The Regional Court dismissed these requests as irrelevant to the proceedings as, in its view, the requests were in part mere “fishing expeditions” and in part concerned issues not connected with the charge against the applicants.

On the same day the Regional Court convicted the applicants of rape under section 201 § 1 of the Penal Code and of deprivation of liberty. The first and second applicants were also convicted of aggravated coercion. The first applicant was sentenced to one year’s imprisonment, the second applicant to two years, the third applicant to twenty months and the fourth applicant to eighteen months. In its judgment, the court described the course of the events in the same terms as in the bill of indictment.

As regards the assessment of evidence, the court followed the statements of F.D. given at the trial, which, in its view, were corroborated by other evidence such as her mother’s statements, statements of police officers who had carried out the investigations, a medical report, items found at the scene of the crime, such as used adhesive tape, and reports on the examination of textiles and tissues found in the bedroom.

As regards the classification of the offence in law, the court found that from the facts established it was apparent that F.D. had been exposed to and has been threatened with acts of serious violence. It therefore had to convict the applicants of rape under Section 201 § 1 of the Penal Code.

On an unspecified date after the end of the trial and before the written version of the judgment was served on the parties, F.D. visited the judge who had presided at the trial and asked him to accept a note dated 18 June 1997 and signed by her. According to that note, she had married the first applicant on 18 June 1997 and did not wish that any member of her husband’s family should go to prison because of the incident. The note stated that she would avail herself in the future of her right as a spouse not to give evidence and that she relied on this right retroactively. The presiding judge refused to accept the note.

On 24 July 1997 the applicants filed pleas of nullity ( Nichtigkeits-beschwerde ) and appeals against sentence ( Berufung ). They complained that the Regional Court had failed to take evidence requested by them. They also complained that the presiding judge had been biased because he had refused to accept F.D.’s note of 18 June 1997 and relied in this respect on section 281 § 1 (1) of the Code of Criminal Procedure. The applicants also complained that their conviction for rape had gone beyond the terms of the indictment ( Anklageüberschreitung ) as they were convicted of rape under section 201 § 1 of the Penal Code while the bill of indictment had charged them with rape under section 201 § 2 of the Penal Code. In the applicants’ submission, if the Regional Court had been of the opinion that the public prosecutor’s indictment had not corresponded to all the elements of the case it should have given the public prosecutor the opportunity to amend the indictment. This would at the same time have given the applicants the opportunity to react to the amendment and to dispute the existence of any aggravating circumstances.

On 2 December 1997 the Supreme Court rejected the applicants’ appeal under section 285d § 1 of the Code of Criminal Procedure without holding a hearing. As regards the complaint that the presiding judge had been biased, the court found that there were no indications of this. In any event, bias could not constitute a ground of nullity under section 281 § 1 (1) of the Code of Criminal Procedure.

The Supreme Court also found that the Regional Court had acted correctly when it dismissed the applicants’ request for the taking of further evidence. As regards the request to hear S.G. as a witness, this request was based on the premise that S.G. was hostile towards the fourth applicant. However, this point had not been argued in the proceedings. As regards the hearing of T.S., the Supreme Court found that the applicants’ request to have this witness heard had not been correctly formulated as they had failed to indicate the facts which could be proved by his testimony. The same was true of their request to hear H.F. as a witness.

As regards the complaint that the judgment had exceeded the terms of the indictment with respect to the charge of rape, the Supreme Court found that a ground of nullity could only be made out if the applicants had been found guilty of an offence which had not been the subject matter of the indictment. The subject matter of an indictment was a specific act or event which, in the eyes of the public prosecutor, had brought about a punishable result. If, on the basis of the evidence taken, the event which formed the basis of the indictment had, in certain details, occurred in a manner different from that assumed by the prosecution, the court had to apply the correct law to the established facts even if the result was that the legal qualification then applied differed from the one made by the public prosecutor. It was only where the taking of evidence showed a course of events which was entirely different from the events described in the indictment such that it could no longer be considered covered by the terms of the indictment, that a conviction would pre-suppose the prior amendment of the indictment. In the present case, the act with which the applicants were charged was identical to the established facts as set out in the judgment. The trial court had merely come to a different legal qualification on the facts. However, this did not exceed the terms of the indictment ( Anklageüberschreitung ). Moreover, the different legal qualification given to the offence was not in breach of the Convention. It was the main purpose of Article 6 § 3 (d) of the Convention to achieve equality of arms between the prosecution and the defence. However, it could not be considered that a legal qualification in the judgment which differed from the one in the indictment infringed this or any other provision of the Convention. The Supreme Court remitted the applicants’ appeal against sentence to the Innsbruck Court of Appeal.

On 11 February 1998 the Court of Appeal dismissed the applicants’ appeal and confirmed the sentences fixed by the Regional Court.

B. Relevant domestic law

Section 201 of the Penal Code ( Strafgesetzbuch ) reads as follows:

“1. Anyone who compels another person, by use of serious violence or threats of immediate serious danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of one to ten years. Rendering unconscious also qualifies as use of serious violence.

2. Anyone who, except for the case under paragraph 1, compels another person, by use of violence, deprivation of liberty or threats of danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of six months to five years.

3. If the violence resulted in serious bodily harm to the victim, or if the victim has endured great pain for a prolonged period or has been particularly humiliated, the perpetrator of the offence shall be punished by imprisonment of five to fifteen years in the case of paragraph 1 and by imprisonment of one to ten years in the case of paragraph 2. If the violence resulted in the death of the victim the perpetrator of the offence shall be punished by imprisonment of ten to twenty years in the case of paragraph 1 and by imprisonment of five to fifteen years in the case of paragraph 2.”

Section 285d § 1 of the Code of Criminal Procedure ( Strafprozess-ordnung ) reads as follows:

"During the private deliberations, an appeal on grounds of nullity may be rejected immediately:

1.  if it ought to have been rejected by the court at first instance under Article 285a ...;

2.  if it is based on the grounds of nullity enumerated in Article 281 § 1 (1-8 and 11) and if the Supreme Court unanimously finds that the complaint should be dismissed as manifestly ill-founded without any need for further deliberation."

COMPLAINTS

The applicants complain under Article 6 of the Convention about their conviction and maintain that their trial was unfair. They submit that their conviction was based on incorrect facts; that the Regional Court refused to hear witnesses requested by them; that the presiding judge at the trial was biased because he had refused to accept F.D.’s note of 18 June 1997; and that the re-qualification of the offence by the trial court from rape under section 201 § 2 of the Penal Code to rape under section 201 § 1 without any prior change to the indictment prevented them from exercising their defence rights properly.

Under Article 6 the applicants further complain that the Supreme Court failed to hold a hearing on their plea of nullity.

The applicants also complain under Article 2 of Protocol No. 7 that a plea of nullity under Austrian law was not a sufficient review within the meaning of this provision because in such proceedings the assessment of evidence by the trial court could not be attacked.

THE LAW

1. The applicants complain under Article 6 of the Convention about their conviction and the unfairness of their trial.

The Court considers that it cannot at the present stage, on the basis of the case-file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicants further complain that the Supreme Court failed to hold a hearing on their plea of nullity. They rely on Article 6 § 1 which, in so far as relevant, reads as follows:

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

The Court recalls that the manner of application of Article 6 to proceedings before appellate courts depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (Kerojärvi v. Finland judgment of 19 July 1995, Series A no. 322, p. 15, § 40). Provided that there has been a public hearing at first instance, the absence of a "public hearing" at second instance may be justified by the special features of the proceedings at issue. Thus proceedings for leave to appeal or proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 even where the appellant was not given an opportunity of being heard in person by the appeal or cassation court (Monnell and Morris v. the United Kingdom judgment of 2 March 1987, Series A no. 115, p. 22, § 58).

In the present case, the applicants had a public hearing at first instance. On 2 December 1997 the Supreme Court rejected the applicants’ plea of nullity, basing its decision on section 285d § 1 of the Code of Criminal Procedure.

The Court recalls further that in the case of Bulut v. Austria it found that the nature of a review under section 285d § 1 of the Code of Criminal Procedure, whereby the Supreme Court, in summary proceedings, may refuse further consideration of an appeal which it unanimously regards as manifestly lacking any merit, can be compared to that of proceedings for leave to appeal and that in such proceedings an oral hearing before the Supreme Court is not required provided that a public hearing had been held at first instance (Bulut v. Austria judgment of 22 February 1996 , Reports of Judgments and Decisions 1996-II, § 42).

The Court finds that the above reasoning also applies to the present case. Therefore, there is no appearance of a violation of the applicants’ rights under Article 6 § 1 of the Convention because of the lack of a hearing before the Supreme Court.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. The applicants also complain under Article 2 of Protocol No. 7 that a plea of nullity under Austrian law was not a sufficient review within the meaning of this provision because in such proceedings the assessment of evidence by the trial court could not be attacked.

Article 2 of Protocol No. 7, in so far as relevant, reads as follows:

“1.  Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”

The Court recalls that the Contracting States may limit the scope of the review by a higher tribunal by virtue of the reference in paragraph 1 of this Article to national law. In several Member States of the Council of Europe such a review is limited to questions of law or may require the person wishing to appeal to apply for leave to do so ( Pesti and Frodl v. Austria (dec.), 27618/95 and 27619/95, 18.1.2000).

The Court observes that the applicants could and did file a plea of nullity with the Supreme Court in which they complained about procedural defects in their trial. Furthermore, they lodged an appeal against sentence which was also examined by the Innsbruck Court of Appeal. The Court therefore finds that the review of the applicants’ conviction by the Austrian courts was sufficient for the purposes of Article 2 of Protocol No. 7 (cf. Pesti and Frodl v. Austria (dec.), loc. cit.). Accordingly, there is no appearance of a violation of that provision.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint under Article 6 of the Convention about their conviction and the alleged unfairness of the trial;

Declares inadmissible the remainder of the application.

T.L. Early J.- P. Costa              Deputy Registrar President