Lexploria

In the case of K. v. Austria*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr F. Matscher,

Mr J. De Meyer,

Mr J.M. Morenilla,

Mr F. Bigi,

Sir John Freeland,

Mr G. Mifsud Bonnici,

Mr J. Makarczyk,

and also of Mr M.-A. Eissen, Registrar,

Having deliberated in private on 26 May 1993,

Delivers the following judgment, which was adopted on that

date:

_______________

Notes by the Registrar

* The case is numbered 47/1992/392/470. The first number is the case's

position on the list of cases referred to the Court in the relevant

year (second number). The last two numbers indicate the case's

position on the list of cases referred to the Court since its creation

and on the list of the corresponding originating applications to the

Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 11 December 1992, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 16002/90) against the Republic of Austria lodged with

the Commission under Article 25 (art. 25) by an Austrian national,

Mr K., on 27 November 1989. The applicant asked the Court not to

divulge his identity.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 5 paras. 1 and 4, and Articles 6 and 10

(art. 5-1, art. 5-4, art. 6, art. 10).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30), whom the President of the Court gave

leave to use the German language (Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mr F. Matscher, the elected judge of Austrian nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 29 January 1993 Mr R. Bernhardt, the

Vice-President of the Court, drew by lot, in the presence of the

Registrar, the names of the other seven members, namely himself,

Mr J. De Meyer, Mr J.M. Morenilla, Mr F. Bigi, Sir John Freeland,

Mr G. Mifsud Bonnici and Mr J. Makarczyk (Article 43 in fine of the

Convention and Rule 21 para. 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of

the Austrian Government ("the Government"), the Delegate of the

Commission and the applicant's lawyer on the organisation of the

proceedings (Rules 37 para. 1 and 38).

5. On 27 April the Government, and on 5 May Mr K.'s lawyer,

communicated to the Registrar the text of an agreement concluded

between them.

The Delegate of the Commission was consulted (Rule 49 para. 2)

and submitted his observations on 14 May 1993.

6. On 25 May the Registrar received from the Government

information concerning a bill to amend the contested Articles of the

Austrian Code of Criminal Procedure; on 17 May he had requested this

information from them.

7. On 26 May the Court decided to dispense with a hearing in the

case, having satisfied itself that the conditions for such a derogation

from the usual procedure had been met (Rules 26 and 38).

AS TO THE FACTS

8. In 1989 the applicant was accused of having bought heroin from

a couple - Mr and Mrs W. -, who were facing a separate prosecution for

drug-trafficking. He pleaded not guilty in the Linz District Court

(Bezirksgericht), which adjourned the trial on 19 May 1989. The Linz

Regional Court (Landesgericht) summoned him to appear on 30 May 1989

to give evidence in the trial of Mr and Mrs W. At the hearing Mr K.

refused to testify because of the proceedings pending against him. The

court then decided not to give him leave to remain silent (Article 153

of the Code of Criminal Procedure) and, as he persisted in his refusal,

first fined him 3,000 schillings and then sentenced him to five days'

imprisonment.

The applicant was incarcerated from 30 May to 4 June 1989 and

paid the fine on 6 March 1990. On 2 June 1989 the Linz Court of Appeal

(Oberlandesgericht) declared inadmissible his appeal (Beschwerde). On

25 January 1990, when the applicant was again questioned in connection

with the proceedings against Mr and Mrs W., he admitted having twice

purchased heroin from them.

9. In the intervening period the Attorney General's Office

(Generalprokuratur) had filed an appeal in the interests of the law

(Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) against the order

imprisoning the applicant. The Supreme Court (Oberster Gerichtshof)

dismissed this appeal on 19 December 1990, finding in substance that

the Regional Court had not exceeded its discretionary power.

PROCEEDINGS BEFORE THE COMMISSION

10. Mr K. applied to the Commission on 27 November 1989. He

claimed that the proceedings resulting in the imposition of the fine

had infringed Article 6 (art. 6) of the Convention, in particular

sub-paragraphs (a) to (c) of paragraph 3 (art. 6-3-a, art. 6-3-b,

art. 6-3-c), and that the obligation to make a statement liable to

incriminate himself had been contrary to Article 6 para. 1 (art. 6-1).

He also complained of his detention and the lack of any possibility of

judicial review thereof (Article 5 paras. 1 and 4) (art. 5-1,

art. 5-4).

11. The Commission declared the application (no. 16002/90)

admissible on 18 February 1992; it decided to examine the complaint

relating to the obligation to testify also under Article 10 (art. 10).

In its report of 13 October 1992 (made under Article 31) (art. 31) it

expressed the following opinion:

(a) by seven votes to five that Article 6 (art. 6) was

inapplicable to the proceedings imposing the fine;

(b) by ten votes to two that there had been a violation of

Article 10 (art. 10) as regards the refusal to allow the

applicant to remain silent;

(c) by eleven votes to one that there had been no violation of

Article 6 para. 1 (art. 6-1) on the same point;

(d) by ten votes to two that there had been a violation of

Article 5 paras. 1 and 4 (art. 5-1, art. 5-4).

The full text of the Commission's opinion and the partly

dissenting opinion contained in the report is reproduced as an annex

to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 255-B of

Series A of the Publications of the Court), but a copy of the

Commission's report is available from the registry.

_______________

AS TO THE LAW

12. On 27 April 1993 the Court received from the Ministry of

Foreign Affairs of the Republic of Austria a copy of the text of the

agreement set out below signed by the Government's representative and

Mr K.'s lawyer:

"The parties in the proceedings currently pending before the

European Court of Human Rights have reached agreement on the

following friendly settlement:

1. The Republic of Austria will pay the applicant in

settlement of all possible claims arising from the present

application the sum of 18,000 schillings as compensation for

the detention plus 103,460.40 schillings as costs.

2. The applicant declares that he has obtained full

satisfaction in respect of the above-mentioned application.

3. He waives his right to pursue any further claims against

Austria arising out of the subject-matter of the said

application."

By a letter of 28 April 1993 to the Registrar, the applicant's

lawyer confirmed this agreement.

13. The Delegate of the Commission was consulted in accordance with

Rule 49 para. 2 of the Rules of Court. On 14 May 1993, after having

sought the Commission's opinion, he sent to the Registrar the following

comments:

"...

In its report the Commission found a violation of the

Convention which was the result of the application of

[Articles] 153 and 160 of the Austrian Code of Criminal

Procedure.

The friendly settlement now proposed by the parties does not

refer to this problem at all and consequently similar

violations of the Convention could occur again.

The Delegate has considerable doubts as to whether the

settlement can be regarded as being 'on the basis of respect

for human rights' (see Eur. Court H. R., Can judgment of

30 September 1985, Series A no. 96, pp. 10-11, paras. 17 and

18). He therefore considers that, in the absence of any

commitment on the part of the Austrian Government regarding

the general interest, the case should not be struck off the

record as it raises important issues of principle."

14. In connection with the legislative reform under way, the

Government communicated on 25 May the following information (see

paragraph 6 above):

"...

The European Commission's doubts as to whether the friendly

settlement reached between the parties in the present case

could be regarded as being 'on the basis of respect for human

rights', and its belief that accordingly the case should not

be struck out of the list in the absence of any commitment on

the part of the Austrian Government regarding the general

interest, are not justified.

Underlying the friendly settlement was the consideration

that the continuation of the proceedings by the European Court

would serve no purpose since the domestic legal position which

gave rise to the application is anyway to be changed. As

regards the violation of Article 10 (art. 10) found by the

European Commission, it should be noted that the 1993 bill to

amend the Code of Criminal Procedure, which amends Article 152

(1) of the Code of Criminal Procedure, setting out the grounds

on which persons may be exempted from giving evidence,

provides that persons who are suspected of committing an

offence, in respect of which they are under investigation, or

whose statements may expose them to risk of prosecution, shall

be exempted from the obligation to give evidence. A witness,

against whom on account of the same facts criminal proceedings

are pending and who may incriminate himself through his own

statements given as a witness, will therefore have an

unconditional right to refuse to give evidence. This ensures

that breaches of the Convention of this type can no longer

arise.

The same is true of the breach found by the Commission of

Article 5 paras. 1 and 4 (art. 5-1, art. 5-4) of the

Convention. Quite apart from the fact that the imposition of

coercive sanctions [Beugemittel] (fine or imprisonment) in a

case such as the present will no longer be possible in view of

the unconditional right to refuse to give evidence under the

amending bill ..., that draft legislation also proposes to add

to Article 160 of the Code of Criminal Procedure, which

governs the imposition of such penalties, the following

sentence:

'These coercive penalties shall be imposed only in so far as

they are not disproportionate to the gravity of the criminal

case, to the importance of the witness's statements or to his

personal circumstances.'

Since 1 January 1993 moreover the imposition of a prison

sentence can be challenged by a complaint to the Supreme Court

on the ground of a breach of the fundamental right to liberty

of the person ..., where no other legal remedy is (still)

available. (This applies too where the detention is imposed in

first-instance proceedings during the trial or by the Regional

Court or the Court of Appeal in appeal proceedings.)

The bill ... is to be examined by Parliament in July 1993

and it will therefore be possible for it to enter into force

on 1 January 1994.

..."

The Government also communicated the text of the proposed new

provisions:

"19. Article 152 shall read as follows:

'Article 152 (1) The following shall be exempted from the

obligation to testify:

1. Persons who are suspected of having committed an

offence, in respect of which they are under

investigation, or whose statements expose them to the

risk of criminal prosecution;

2. Persons who are called upon to testify in

proceedings against a relative (Article 72 of the

Criminal Code) or whose testimony carries with it the

risk of criminal prosecution of a relative, and in

this connection where the person's status as a

relative is based on a marriage, he retains that

status even where the marriage no longer subsists;

3. Persons who, when they are called upon to testify,

have not yet reached fourteen years of age, where

there are grounds for assuming that they were harmed

by the offence with which the accused is charged;

4. Defence counsel, lawyers, notaries, trustees,

psychiatrists, psychotherapists, psychologists, social

workers and persons working for officially recognised

institutions providing psychosocial advice and care,

in respect of matters learnt in that capacity;

5. Any person concerning how he has exercised his

right to vote, where the exercise of this right is

confidential according to the law.

(2) Persons who participate as part of their professional

training in the activities of, or who assist, the persons

referred to in paragraph (1) 4 shall be treated as the latter.

(3) Denial of the right of the persons referred to in

paragraphs (1) 4 and (2) to refuse to testify will entail

nullity.

(4) If a person called as a witness has one of the

above-mentioned relationships with only one of several

accused, he can refuse to testify in respect of the others

only if it is impossible to separate the statements which

concern the others. The same applies where the ground for

refusing to testify relates to only one of several sets of

facts.

(5) The investigating judge is under a duty, before

questioning the persons mentioned in paragraphs (1) and (2) or

as soon as the ground for exempting them from the obligation

to testify is known, to inform them of their right to refuse

to testify and to take down in the record of the examination

their declarations in this respect. Unless the witness has

expressly waived his right to refuse to testify, his

statements will be inadmissible.'

20. In Article 153 (1) the expression in brackets should read

'(Article 152 (1) 2)'; the words 'criminal prosecution' are to

be deleted.

21. The following sentence shall be added to Article 160:

'These coercive penalties shall be imposed only in so far as

they are not disproportionate to the gravity of the criminal

case, to the importance of the witness's statements and to his

personal circumstances.'"

15. The Court observes that the possibility of a breach, deriving

not from a provision of domestic law as such, but from the manner in

which the national authorities applied it or might apply it in a

specific case, cannot in itself justify a refusal to strike a case out

of the list. This is moreover confirmed by the Court's practice in

this field.

It should be noted in addition that the Austrian Government has

laid before Parliament a bill which is intended, inter alia, to amend

Articles 152, 153 and 160 of the Code of Criminal Procedure

(Strafprozeßänderungsgesetz 1993). The new draft provisions would

guarantee, in accordance with (im Sinne) the Constitutional Court's

case-law, the right to refuse to testify where the person concerned

runs the risk of incriminating himself. The adoption of these

provisions would eliminate any public policy reason for requiring a

decision on the merits of the case.

Accordingly, the Court takes formal note of the friendly

settlement reached between the Government and Mr K. and considers it

appropriate to strike the case out of the list.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 para. 2, second sub-paragraph, of the Rules of Court on

2 June 1993.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

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CASE OF K. v. AUSTRIA

CASE OF K. v. AUSTRIA

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