THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40072/98 by Helmut KUCERA against Austria

The European Court of Human Rights (Third Section) , sitting on 20 March 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 5 August 1997 and registered on 3 March 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 applicant is an Austrian national, born in 1957 and presently detained at the Krems Stein prison (Austria). He is represented before the Court by Mr K. Muzik, a lawyer practising in Vienna (Austria).

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

On 6 September 1993 the Investigating Judge ordered the applicant’s remand in custody on suspicion of having raped two women.

On 20 January 1994 the Vienna Public Prosecutor filed a bill of indictment against the applicant charging him with two counts of rape under aggravated circumstances, i.e. having caused serious injuries. The Public Prosecutor submitted that on 16 June 1993 the applicant had raped A.H., had beaten and strangled her, had forced her to swallow drugs and had threatened her with death. On 5 September 1993 he had raped E.P. had beaten and strangled her, had forced her to swallow drugs, had burned her skin with cigarettes and had cut her vagina with a knife causing a deep laceration as well as opening the abdominal cavity.

On 8 April 1994 the trial against the applicant started before a Court of Assizes ( Geschworenengericht ) of the Vienna Regional Court ( Landesgericht ). The applicant claimed that on 16 June 1993 he had not been in Vienna but in Poland. The Court heard a medical expert on the question whether the applicant was criminally responsible and several witnesses: A.H. and E.P, staff from the hotel in which E.P. had been raped, as well as the mother and colleagues of A.H. On 12 April 1994 the applicant requested the Court of Assizes to identify and hear three further witnesses from Poland, who could support his alibi that on 16 June 1993 he had been in Poland. The Court of Assizes rejected this request as it found that the applicant had not given the full names and the addresses of these people, so they could not be identified.

On 12 April 1994 the Court of Assizes convicted the applicant of both offences of aggravated rape and sentenced him to 14 years’ imprisonment. In assessing the penalty, the court considered as mitigating circumstances the applicant’s partial confession regarding the rape of E.P. and, to some extent, that he had acted under the influence of alcohol and drugs. As aggravating circumstances, the court considered the applicant’s criminal record, the fact that he had committed two rapes and the extreme brutality which the applicant had shown when committing the offences.

On 27 June 1994 the applicant filed a plea of nullity ( Nichtigkeitsbeschwerde ) and an appeal against sentence ( Berufung ). In his plea of nullity the applicant complained, inter alia , that the Court of Assizes had failed to hear the requested witnesses from Poland.

On 18 August 1994 the Supreme Court ( Oberster Gerichtshof ) confirmed the Court of Assize’s judgment as regards the rape of E.P. and quashed the judgment as regards the other charge of rape and the sentence. It found that there had been sufficient information to identify the witnesses from Poland and that the Court of Assizes should have attempted to take this evidence. It remitted the case to that court.

On 19 September 1995 the new trial commenced before the Court of Assizes sitting with another jury. The applicant requested that further witnesses from Poland be heard who could state that he had been in Poland from 14 to 20 June 1993. The applicant also requested that the expert should supplement his report on the issue of his criminal responsibility. Thereupon the trial was adjourned and a further expert appointed.

On 15 May 1996 the applicant filed a request for the re-opening of the proceedings concerning the rape of E.P. In his request he also asked that further evidence be taken at the trial.

On 4 June 1996 the trial continued. The Court of Assizes questioned the applicant on his alibi and confronted him with statements from witnesses in Poland heard on letters rogatory who denied having met the applicant. The court heard witnesses, some of them proposed by the defence, and two medical experts. The experts stated that the applicant, who had had a difficult childhood, had aggressive tendencies which were reinforced by the influence of alcohol and drugs. Nevertheless, he was responsible for his acts.

The trial continued on 14 June 1996. The Court of Assizes dismissed the applicant’s remaining requests for evidence as irrelevant. As regards the requested witness A.M., a stone-mason, whom the applicant had allegedly visited on the crucial day in Poland in order to get information about a tomb stone, the court noted that, according to the applicant’s own submissions, he had not spoken personally to A.M. and, since he had not ordered anything but merely stated that he would come back another time, the applicant’s name had not been noted in A.M.’s business records. The request to hear him as a witness thus amounted to an unacceptable "fishing expedition" ( Erkundungsbeweis ). As regards the request for a further expert’s opinion concerning his criminal responsibility, the court found that the existing experts’ opinions were clear with no contradictions and there was therefore no need to hear a further expert.

On the same day the Court of Assizes convicted the applicant of raping A.H. and sentenced him to 14 years’ imprisonment. When fixing the sentence the court considered as mitigating circumstances the applicant’s confession regarding some of the facts concerning the charge of having raped E.P. and, to a certain extent, his intoxication. As aggravating circumstances it considered the applicant’s criminal record, that he had committed two rapes and his extreme brutality when committing the offences.

On 29 August 1996 the applicant filed a plea of nullity and an appeal against sentence. In his plea of nullity he submitted, inter alia, that the Court of Assizes had not heard J.P and A.M., both witnesses from Poland, and had merely read out J.P.’s statements. The Court of Assizes had also relied on wrong expert reports and had not heard a further expert. In his appeal against sentence the applicant submitted that the Court of Assizes had failed to take give sufficient weight to the mitigating circumstances, namely his neglected education, difficult childhood and his intoxication. The applicant did not request to attend the hearings before the Supreme Court or the Vienna Court of Appeal ( Oberlandesgericht ).

On 8 October 1996 the Supreme Court, sitting in private, rejected as inadmissible the applicant’s plea of nullity. As regards the applicant’s complaint that the Court of Assizes had failed to take certain evidence requested by him, the Supreme Court found that the Court of Assizes had acted correctly in rejecting these requests, giving detailed explanations why the requested evidence was either irrelevant or, as regards for instance the request to hear J.P., not submitted properly at the oral hearing. The Supreme Court referred the applicant’s appeal against sentence to the Vienna Court of Appeal.

On 4 December 1996 the Vienna Court of Appeal fixed the hearing date for the applicant’s appeal against sentence for 18 December 1996. The applicant received a notification, which stated that he, being detained, could only appear through his counsel and would not be brought to the court as the conditions of Section 296 § 3 of the code of Criminal Procedure ( Strafprozeßordnung ) were not fulfilled.

On 18 December 1996 the Vienna Court of Appeal, after having held a hearing in the absence of the applicant but in the presence of his defence counsel, dismissed the appeal against sentence. As regards the weighing of mitigating and aggravating circumstances by the Court of Assizes, the Court of Appeal found that the applicant’s partial confession was merely a contribution to the establishment of the truth ( Beitrag zur Wahrheitsfindung ) and did not qualify as a mitigating circumstance. Further, there were additional aggravating circumstances such as the particular cruelty which the applicant had used when committing the offences, as well as their concurrent nature ( Zusammentreffen strafbarer Handlungen ). As regards the circumstances invoked by the applicant, the Court of Appeal found that they could not be taken into consideration as mitigating circumstances. A neglected education and difficult childhood could not be considered as the applicant was now an adult and it could not explain his excessive use of brutality. Also no weight could be given to his intoxication because he should have known about the effects of alcohol on his person, and the experts had stated that it had no bearing on him committing the offences. Furthermore, the applicant’s offences were not a consequence of a mental defect but of frustration and increased aggression and he had not shown any consciousness of his guilt. Thus, there was no reason to reduce the sentence.

COMPLAINTS

The applicant complains under Article 6 of the Convention about his conviction and the alleged unfairness of the proceedings leading thereto. He submits that the Court of Assizes did not properly evaluate the evidence before it and believed the victim, A.H., rather than the exonerating evidence submitted by the defence. He complains that two Polish witnesses who could have proved his innocence on the charge of having raped A.H. were not heard by the Court of Assizes, and no additional expert opinion concerning his criminal responsibility during the rapes had been obtained. He also submits that no decision was taken concerning his reopening request.

The applicant complains further under Article 6 § 1 of the Convention about the length of the criminal proceedings. Lastly the applicant complains under Article 6 § 3 (c) of the Convention that the Vienna Court of Appeal heard his appeal against sentence in his absence.

THE LAW

1. The applicant complains about his conviction and the alleged unfairness of the proceedings leading thereto. He relies on Article 6 which, insofar as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time 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;”

The Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

The Court will examine the applicant’s complaints under paragraphs 1 and 3 of Article 6 taken together, as the guarantees of paragraph 3 represent aspects of the concept of a fair trial contained in paragraph 1 (Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 14, § 29).

The applicant submits in particular that the Court of Assizes refused to hear witnesses and to obtain a further expert’s opinion requested by him. The Court recalls, however, that as a general rule it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d) leaves primarily to them the assessment whether it is appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system. It does not require the attendance and examination of every witness on the accused’s behalf (Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention (Bricmont v. Belgium judgment, loc.cit).

The Court observes that the Court of Assizes rejected the applicant’s requests for evidence, explaining why such evidence was irrelevant and unnecessary. The Supreme Court carefully examined the explanations and found that the Court of Assizes had acted correctly in its refusal. The Court finds no indication that the refusal to take all the evidence requested by the applicant was incompatible with Article 6, or that thereby the applicant’s rights of defence were unduly restricted or the proceedings unfair. 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.

2. The applicant also complains that no decision was taken concerning his reopening request. However, the Court recalls that Article 6 of the Convention does not apply to proceedings for the re-opening of criminal proceedings given that someone who applies for his case to be reopened and whose sentence has become final is not "charged with a criminal offence" within the meaning of the said Article (No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171; No. 23727/94, Dec. 16.5.95). It follows that this part of the

application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention, and must be rejected in accordance with Article 35 § 4.

3. The applicant next complains under Article 6 of the Convention about the length of the criminal proceedings. Even assuming that the applicant has exhausted domestic remedies as required by Article 35 of the Convention, the Court finds that this complaint is inadmissible for the following reasons:

The proceedings started on 6 September 1993, when the applicant was remanded in custody, and ended on 18 December 1996, when the Court of Appeal dismissed the applicant’s appeal. They therefore lasted 3 years, 3 months and 2 weeks. During this period the Austrian courts gave five decisions on the merits and there is no indication that they have not dealt expeditiously with the applicant’s case. In these circumstances, the Court finds that the proceedings complied with the reasonable time requirement under Article 6 § 1 of the Convention.

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.

4. Lastly, the applicant complains under Article 6 § 3 (c) of the Convention that the Vienna Court of Appeal failed to allow him to appear before it at the appeal hearing.

The Court considers that it cannot at the present stage, on the basis of the case-file, determine the admissibility of this complaint 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint that he had not been able to attend the oral hearing before the Vienna Court of Appeal ;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President