THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37585/97 by V. P. against Austria

The European Court of Human Rights ( Third Section ), sitting on 27 April 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, 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 19 March 1997 and registered on 1 September 1997,

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 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 is an Austrian national, born in 1929 and living in Vienna. He is represented before the Court by Mr K. Muzik , a lawyer practising in Vienna.

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

On 20 July 1990, after having questioned the applicant on a date unspecified in the file, the Vienna Federal Police Authority ( Bundespolizeidirektion ) reported to the Vienna Public Prosecutor's Office ( Staatsanwaltschaft ) that the applicant was suspected of attempted fraud and suppression of documents. He was said to have misappropriated several savings books, which had belonged to a deceased relative and had tried to withdraw the savings deposits a few days after the relative’s death.

On 8 October 1990 the applicant was questioned by the investigating judge of the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ).

On 29 April 1991 the Vienna Public Prosecutor's Office charged the applicant with attempted fraud and suppression of documents.

On 9 March and 1 April 1992 the single judge ( Einzelrichter ) of the Vienna Regional Criminal Court held trial hearings. On the latter date he issued a judgment in which he declared his lack of jurisdiction ( Unzuständigkeitsurteil ) on the ground that the prosecutor had expanded the charges, which would now fall to be examined by a court sitting with two professional and two lay judges ( Schöffengericht ). In these and the following proceedings the applicant was assisted by counsel.

It appears that, subsequently, the Public Prosecutor’s Office revoked the decision to expand the charges. On 20 May 1992 it requested the taking of further evidence.

On 25 August 1995 the trial against the applicant was resumed before the single judge. Following the hearing of a number of witnesses, it was adjourned in order to take the opinion of a handwriting expert on the question whether the signature on a certain letter was that of the deceased relative.

On 20 December 1995 the trial was again resumed and the applicant and further witnesses were heard. At the close of the hearing, the Regional Court convicted the applicant of attempted fraud and suppression of documents, and sentenced him to ten months’ imprisonment suspended on probation . In establishing the relevant facts, the court relied on the statements of the witnesses heard, which it found credible and coherent, and a file on related inheritance proceedings. It dismissed the applicant’s defence that his relative had donated the savings books to him shortly before her death as being incredible, noting in particular that he had given a number of different descriptions of the time and circumstances of the alleged donation, and that his submissions partly contradicted the courts’ findings in the inheritance proceedings.

On 29 July 1996 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal ( Berufung ). The court examined the applicant’s complaint about the refusal of various requests for the taking of evidence. As to his request for a further opinion by a handwriting expert, it found that the Regional Court had rightly dismissed it as the first expert’s opinion was conclusive, and the Regional Court had only established that the signature on the letter at issue was a forgery, but had not assumed that the applicant had forged it. Further, the Court of Appeal found that the Regional Court had given detailed and convincing reasons for its evaluation of the evidence.

According to a statement by the counsel who represented the applicant in the criminal proceedings, the appeal court’s judgment was served on him on 27 September 1996.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him have not been terminated within a reasonable time.

2. The applicant further complains under Article 6 § 1 of the Convention that the criminal proceedings were unfair as the Austrian courts rejected his request to hear a further expert on handwriting. Finally, he complains that he was wrongfully convicted since he acted without the intention to commit fraud or to suppress any documents. In this respect he invokes Article 7 of the Convention.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

Article 6 § 1, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time ...”

The Court consi d ers that it cannot, on the basis of the 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.

2. The applicant further complains about the alleged unfairness of the proceedings against him. He invokes Articles 6 § 1 and 7 of the Convention, the latter prohibiting retroactive criminal legislation and penalties.

The Court finds that the applicant’s complaints fall to be examined under Article 6 § 1 of the Convention alone. As to the complaint that his conviction was wrong, the Court recalls that 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 (see the Garcia Ruiz v. Spain judgment of 21 Januray 1999, § 28 to be published in the Court’s official series).

As to the applicant’s complaint about the refusal of his request for a further expert opinion, the Court recalls that Article 6 guarantees the right to a fair hearing, but 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 ( ibid .). In the present case, the Vienna Court of Appeal, giving convincing reasons, confirmed the first instance court’s refusal of the applicant’s request for a further opinion from a handwriting expert. There is no indication that the applicant, assisted by counsel, could not duly put forward his defence or that the proceedings were otherwise unfair. Thus, there is no appearance of a violation of Article 6 § 1 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint [Note1] about the length of the proceedings;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.