THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33501/96 by Thomas TELFNER against Austria

The European Court of Human Rights ( Third Section ) sitting on 8 February 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 Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 August 1996 by Thomas Telfner against Austria and registered on 21 October 1996 under file no. 33501/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 15 January 1999 and the observations in reply submitted by the applicant on 2 April 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1969 and living in Obsteig .

He is represented before the Court by Mr A. Fuith , a lawyer practising in Innsbruck .

A. Particular circumstances of the case

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

On 8 April 1995, in the early hours, an accident took place in Obsteig , a small village in the Tyrol . Mr K. was touched by a car and suffered a slight injury to his arm. Mr K. reported the incident to the police and identified the type and registration number of the car involved. He had, however, not been in a position to identify the driver of the car.

On the same morning, officers of the local police station started investigations. They found the car, registered in the name of the applicant’s mother, Mrs G., parked in front of the house where the applicant is living with his family. The applicant’s mother stated that she had not been driving. As regards the applicant, she stated that he was not home yet and showed the police officers the applicant’s room in which his bed was untouched. Further, she stated that the car was regularly used by several family members. She was requested to send the applicant to the police station as soon as he came in. When asked later that day, the applicant’s mother stated that he still had not come home. In its investigation report the police referred to the applicant as the suspect and stated that, according to the police officers’ general observations, he was the main user of the car.

On 20 December 1995 and on 2 February 1996 the Silz District Court ( Bezirksgericht ) tried the applicant on charges of negligent bodily injury ( fahrlässige Körperverletzung ). The applicant pleaded “not guilty”. He stated that he had not driven the car at the relevant time and that he did not wish to make any further submissions. Mr K., heard as a witness, confirmed his statements to the police, in particular that he had not been able to identify the driver of the car, nor state whether the driver had been male or female. The applicant’s mother and his sister exercised their right not to testify.

On 2 February 1996 the Silz District Court convicted the applicant of negligent bodily injury and sentenced him to a fine. In establishing the facts, the court relied on the investigation report of the police, the statement of Mr K. and the applicant’s defence. Its reasoning was as follows:

“The accused stated in his evidence at trial that he had not been driving the vehicle at the time of the accident and denied every other point in the statement of facts. Both the accused’s mother, who is the legal owner of the vehicle, and his sister, [M.G.], whom the accused called as a witness, refused to give evidence at the trial. As the injured party, [Mr K.], could not determine at the time of the accident who had been driving the vehicle, the only evidence which remained in connection with this point were the observations of the Obermieming police station, according to which it was common knowledge that the vehicle in question was mainly driven by the accused, ... . On the basis of those observations the court is also satisfied that [the applicant] was driving the vehicle at the material time and caused the accident. The additional circumstance that, according to the observations of the Obermieming police station, the accused was not at home after the accident and had evidently still not returned at 8 p.m. that day and, moreover, no one knew where he was, gives rise to the sole, unequivocal conclusion that only the accused could have committed the offence; presumably he refused to make a statement because he was under the influence of alcohol, but there is no evidence for that finding. The remaining findings as to the circumstances of the accident or the subsequent course of events are based solely on the consistent and fully credible statements of the witness [Mr K.].”

On 23 July 1996 the Innsbruck Court of Appeal ( Landesgericht ) dismissed the appl i cant’s appeal and confirmed the first instance judgment. In particular, as regards the District Court’s evaluation of evidence, the Court of Appeal found as follows:

“The impugned assessment of the evidence is consistent, complete and convincing, so that the Court of Appeal can adopt it as well as the findings based thereon. It is the case that the person claiming damages in criminal proceedings was only able to identify the car and could not describe the occupant or occupants of the vehicle. From the evidence it is conceivable, however, that the car, registered in the name of the a c cused’s mother, is mainly used by the accused, even if it is also occasionally used by others, such as the accused’s sister. It would have been open to the accused to give a contrary version of events which co n flicted with the charges and to put in relevant evidence without thereby at the same time having to name another person as the driver. That was evidently impossible, however, because having spent the night away from his parents’ house and possibly consuming alcohol he had on 8 April 1995 driven his mother’s car through Obersteig . The court of first instance correctly referred to the observations of the police off i cers to the effect that immediately after the accident the car was indeed in front of the parents’ house, yet the accused’s bed had not been slept in and he could not be found. Nor could it be ascertained where the accused, who refused to make a written statement to the police, was staying. On the basis of the available evidence before it the court of first instance made a realistic assessment of the facts, especially as there was no evidence that anyone else, such as the accused’s sister, had been driving the car at the time of the accident.”

COMPLAINT

The applicant complains under Article 6 § 2 of the Convention that his conviction violates the presumption of innocence.

PROCEDURE

The application was introduced on 22 August 1996 and registered on 21 October 1996.

On 22 October 1998 the European Commission of Human Rights decided to comm u nicate the application to the respondent Government.

The Government’s written observations were submitted on 15 January 1999. The a p plicant replied on 2 April 1999.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Co n vention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains under Article 6 § 2 of the Convention that his conviction violates the presumption of innocence.

Article 6 § 2 reads as follows:

“(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Government submit that the applicant was given ample opportunity by the Silz District Court to defend himself and to refute the evidence adduced at the trial or to produce evidence in his favour. However, the applicant merely stated that he had not been using his mother’s vehicle and otherwise used his right to remain silent, thus waiving the opportunity to refute the evidence against him. The Government also submit that the courts freely a s sessed the evidence and that the conclusion that the applicant was guilty was  in view of the evidence that the vehicle had mostly been used by the applicant, that it was parked in front of the parental home, that the applicant’s bed was unused, that the latter could not be found and that there was no indication that someone else had driven the car  free from contradiction, realistic and not at all farfetched. The courts therefore arrived at the conviction of the appl i cant’s guilt exclusively on the basis of the evidence adduced and did not interpret the fact that members of the applicant’s family had refrained from giving testimony as a proof of guilt.

The applicant concedes that the courts, according to the Code of Criminal Procedure, are free to assess the evidence adduced before them. They are, however, bound by the facts established on basis of the evidence taken. In the present case the evidence adduced comprised his “not guilty” plea as he had not driven the vehicle, the testimony of the victim who stated that he could not identify the driver and the police report, the applicant’s mother and sister having refrained from testifying. The applicant submits that the courts noted that it was notorious that the vehicle was mainly driven by him and that he had not passed the night at his mother’s house. It is exclusively from these facts that the courts concluded his guilt. He further argues that he had clearly stated that he had not driven the car. Apart from that, he could not be forced to testify, in particular where and with whom he had passed the night, e s pecially as there was no actual evidence seriously incriminating him. Therefore, he should have been granted the benefit of the doubt.

The Court considers, in the light of the parties’ submissions, that the application raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been e s tablished.

For these reasons, the Court, unanimously

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

S. Dollé N. Bratza Registrar President