Lexploria

In the case of Artner 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 Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr B. Walsh,

Mr R. Macdonald,

Mr J. De Meyer,

Mrs E. Palm,

Mr F. Bigi,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 28 February and

25 June 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 39/1991/291/362. 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 8 March 1991,

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. 13161/87) against the Republic of Austria lodged

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

national, Mr Josef Artner, on 6 July 1987.

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 6 paras. 3 (d) and 1 (art. 6-3-d,

art. 6-1) taken together.

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).

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 22 March 1991,

Mr Matscher, having been duly delegated by the President, drew by

lot, in the presence of the Registrar, the names of the other seven

members, namely Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert,

Mr F. Gölcüklü, Mr B. Walsh, Mr J. De Meyer, Mrs E. Palm and

Mr F. Bigi (Article 43 in fine of the Convention and Rule 21

para. 4) (art. 43). Subsequently, Mr R. Macdonald, substitute

judge, replaced Mrs Bindschedler-Robert, who had resigned and whose

successor at the Court had taken up his duties before the hearing

(Rules 2 para. 3 and 22 para. 1).

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

procedure (Rules 37 para. 1 and 38). Pursuant to the order made in

consequence, the Registrar received the applicant's memorial on

3 June 1991 and the Government's memorial on 31 July. The

applicant, having declared that he did not intend to attend the

hearing, obtained the President's leave to lodge a memorial in

reply, which he filed on 30 September.

On 12 September the Secretary to the Commission had

informed the Registrar that the Delegate would make oral

submissions. On 30 January 1992 the Secretary produced various

documents from the proceedings before the Commission; he had been

asked to do so by the Registrar, who had acted on the instructions

of the President following a request from the applicant.

5. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg, on

24 February 1992. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr H. Türk, Ambassador, Legal Adviser,

Ministry of Foreign Affairs, Agent,

Mr S. Rosenmayr, Federal Chancellery,

Mr S. Benner, Federal Ministry of Justice, Advisers;

(b) for the Commission

Mr M.P. Pellonpää, Delegate.

The Court heard addresses by the above-mentioned

representatives, as well as their answers to its questions.

On the same day the Government provided to the Court other

documents whose production it had requested.

AS TO THE FACTS

6. Mr Josef Artner, who is an Austrian national, currently

resides in Vienna (Austria).

7. On 16 December 1986 the Vienna Regional Court

(Landesgericht) sentenced him to three years' imprisonment on two

counts of usury (Geldwucher) and on counts of aggravated fraud

(schwerer Betrug) and attempted aggravated fraud, embezzlement

(Veruntreuung) and aggravated theft (schwerer Diebstahl).

8. In one of the two cases of usury - the only one at issue in

the present proceedings - the judgment found the following facts to

be proven. In response to an advertisement in the press, Miss L.

had contacted the applicant in the course of the summer of 1982 with

a view to obtaining a loan. As she was unable to provide any

security, she abandoned the idea until she received a letter from

him in which he purported to charge her 2,350 schillings because the

negotiations had failed. He had then persuaded her to contract the

loan jointly with a certain S., a Yugoslavian national, whom she did

not know and who was to stand surety for the loan. On

24 August 1982 they both signed, as joint debtors, a loan agreement

for 60,000 schillings with a bank, which paid over the sum to them

immediately in Mr Artner's presence. The latter then demanded and

obtained 10,000 schillings as commission, whilst S. received 30,000

and Miss L. the remaining 20,000. The previous day the applicant

had talked her into agreeing to reimburse the monthly instalments

payable by S. with effect from March 1984. Shortly afterwards S.

disappeared, leaving Miss L. to pay off the debt in full.

9. Following a complaint laid by her, Miss L. was interviewed

first by the police and then by the investigating judge, on 5 May

and 4 July 1983. She was not, however, confronted with the

applicant. As the latter had also disappeared, the investigating

judge ordered, on 29 July 1983, that he be placed on the list of

wanted persons. On 2 January and 2 April 1985, at the border, and

on 17 April 1985, in Vienna, the police invited him to report to the

Vienna Regional Court in connection with the criminal proceedings

against him, but to no avail. Finally, he was extradited from

Germany on 19 June 1986.

On 9 October 1986 the Regional Court summoned Miss L. to

the hearing of 21 November 1986 as a prosecution witness. As she

had moved in the meantime, the court instructed the Federal Police

Department of Vienna to discover her new address, where it sent her

the summons on 6 November 1986. On the day fixed for the hearing

Miss L. failed to appear. Mr Artner had not himself asked that she

be called to testify, but he refused to waive his right to have her

called as a witness. Accordingly, the court adjourned the

proceedings to 16 December and ordered the police to make further

efforts to contact Miss L. and to bring her to the hearing. Their

efforts were unsuccessful as she had moved again, without leaving an

address. The court informed the applicant of this at the hearing on

16 December and then had Miss L.'s statements to the police and

before the investigating judge read out, pursuant to Article 252,

first paragraph, no. 1, of the Code of Criminal Procedure.

10. Mr Artner protested his innocence, claiming that he had

received only 3,000 schillings as commission. He proposed to call

as witnesses an employee of the bank which had lent the sum in

question and a representative of a consumers' association which

Miss L. had consulted before laying her complaint, but the court

decided not to take evidence from them because they had not been

present when the money had been shared out.

11. In the court's opinion the applicant could be convicted on

the basis of Miss L.'s statements, which it found to be credible,

and of the documents that she had produced in support. Although

they revealed a slight discrepancy concerning the person to whom the

bank had handed over the money, this was not deemed to be important

as all three had been present on that occasion. Moreover the

account of the events was very similar to that given by the victim

in the other case of usury (a Mrs S.), in which the accused had

allegedly received a commission of 15,000 schillings on a loan of

40,000 schillings.

Having regard to Mr Artner's eight previous convictions,

mostly for theft, the court refused to accept his version of events,

according to which he had received only 3,000 schillings. It

considered that the applicant had, on the contrary, taken advantage

of Miss L.'s distress and inexperience to obtain remuneration which

was manifestly disproportionate to the service rendered.

12. On 18 February 1987 Mr Artner filed with the Supreme Court

(Oberster Gerichtshof) an appeal (Berufung) and an application for a

declaration of nullity (Nichtigkeitsbeschwerde) against the judgment

of 16 December 1986. On 26 May that court dismissed the submissions

relating to the usury case. It took the view that he was not

well-founded in criticising the Regional Court for having dispensed

with hearing Miss L., whose appearance in court he had not,

moreover, himself requested. The two attempts which the court had

directed to be made to determine Miss L.'s whereabouts having

failed, Article 252, first paragraph, no. 1, empowered the court to

have the contested statements read out. The slight discrepancy

referred to above could legitimately have been regarded as

negligible since the applicant had admitted that he had received a

commission (Provision) from the two borrowers. As regards the

defence witnesses, the Regional Court had been justified in refusing

to hear their testimony as irrelevant. The Supreme Court did,

however, find fault with the lower court's judgment in a number of

respects of no relevance to the present proceedings.

13. The case was remitted to the Regional Court, which on

20 November 1987 reduced the applicant's total sentence to two and a

half years' imprisonment.

PROCEEDINGS BEFORE THE COMMISSION

14. Mr Artner lodged his application with the Commission on

6 July 1987. He complained that he had been convicted solely on the

basis of the statements of Miss L., whom the Regional Court had not

heard; he relied on Article 6 paras. 1 and 3 (d) (art. 6-1,

art. 6-3-d) of the Convention.

15. The Commission declared the application (no. 13161/87)

admissible on 5 March 1990. In its report of 8 January 1991

(Article 31) (art. 31), it expressed the opinion, by nine votes to

seven, that there had been no violation. The full text of its

opinion and of the 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 242-A 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

16. The applicant alleged a breach of the following

requirements of Article 6 (art. 6) of the Convention:

"1. In the determination ... of any criminal charge

against him, everyone is entitled to a fair ... hearing ...

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;

..."

He maintained that the conviction he complained of had been

based solely on Miss L.'s statements to the police and before the

investigating judge, which had been read out at the hearing. It had

never been possible for him "to examine or have examined" the

complainant. Yet, at the hearing on 21 November 1986, he had

clearly indicated that he did not wish to waive his right to have

her called, all the more so because there were a number of

contradictions between the two sets of statements.

17. In the Government's contention, on the other hand, the

Vienna Regional Court had taken into account, in addition to the

contested statements, the documents relating to the loan agreement

and the very similar facts which had led to Mr Artner's conviction

in the other case of usury (see paragraph 11 above).

Furthermore, prior to the disputed judgment, numerous

attempts had been made to organise a confrontation. They had all

failed owing to the conduct of the two persons concerned themselves;

as both of them had moved house several times without leaving an

address, neither the applicant nor Miss L. had been able to receive

the summonses to appear, before the investigating judge in the

former's case and before the Regional Court in the latter's

(see paragraph 9 above).

Moreover, on 16 December 1986 Mr Artner had no longer

insisted, as he had done on 21 November, that Miss L. be called to

give evidence; he had merely requested that defence witnesses be

called (see paragraphs 9-10 above).

18. The Commission subscribed in substance to the Government's

view.

19. The guarantees in paragraph 3 of Article 6 (art. 6-3) are

specific aspects of the right to a fair trial set forth in

paragraph 1 (art. 6-1); the Court considers it appropriate to

examine the complaint under the two provisions taken together (see,

inter alia, the Asch v. Austria judgment of 26 April 1991, Series A

no. 203, p. 10, para. 25).

Although the Regional Court did not hear Miss L., she

should, for the purposes of Article 6 para. 3 (d) (art. 6-3-d), be

regarded as a witness - a term to be given an autonomous

interpretation (see the same judgment, p. 10, para. 25) - because

her statements, as taken down in writing and then read out at the

hearing, were before the court, which took account of them.

20. In the present case it should be noted in the first place

that from June 1983 to June 1986 the applicant's absence made it

impossible to organise a confrontation between him and Miss L. From

the moment when the proceedings were first instituted, he had proved

impossible to trace; indeed so much so that in July 1983 the

investigating judge had directed that he be placed on the list of

wanted persons. Despite the fact that the police had on several

occasions invited Mr Artner to contact the Vienna Regional Court in

connection with the proceedings brought against him, the

investigating judge had to wait until he was extradited on

19 June 1986 before he could question him (see paragraph 9 above).

21. Shortly afterwards Miss L. disappeared in her turn. The

Regional Court twice instructed the police to make every effort to

find her, even adjourning the hearing in order to allow the

inquiries sufficient time to bear fruit, but to no avail (ibid.).

It would of course have been preferable if she could have testified

in court, but her failure to appear did not in itself make it

necessary to halt the prosecution - the appropriateness of which,

moreover, falls outside the scope of the Court's review -, provided

that the authorities had not been negligent in their efforts to find

the persons concerned.

22. As it was impossible to secure Miss L.'s attendance at the

hearing, it was open to the national court, subject to the rights of

the defence being respected, to have regard to the statements

obtained by the police and the investigating judge, in particular in

view of the fact that it could consider those statements to be

corroborated by other evidence before it.

23. That other evidence included the documents concerning the

loan agreement, and notably Mr Artner's letter demanding that

Miss L. pay him the sum of 2,350 schillings following their first

unsuccessful discussions, or again the undertaking which he had made

her sign to reimburse with effect from March 1984 the monthly

instalments payable by S. (see paragraph 8 above). There were in

addition the applicant's criminal record and his conviction -

against which he did not appeal (see paragraphs 8 and 11 above) - in

the other case of usury on similar facts. Although this evidence

did not provide a precise indication as to the amount of commission

received, it could nevertheless, in the victim's absence, help the

judges to form their opinion.

24. It follows that Miss L.'s contested statements were not the

only evidence on which the Regional Court based its finding.

Accordingly, the fact that it was impossible to examine her

at the hearing did not, in the circumstances of the case, infringe

the rights of the defence to such an extent that it constituted a

breach of paragraphs 1 and 3 (d) of Article 6, taken together

(art. 6-1, art. 6-3-d).

FOR THESE REASONS, THE COURT

Holds by five votes to four that there has been no

violation of paragraphs 1 and 3 (d) of Article 6, taken

together (art. 6-1, art. 6-3-d).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 28 August 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the dissenting

opinion of Mr Thór Vilhjálmsson and the joint dissenting opinion of

Mr Walsh, Mr Macdonald and Mrs Palm are annexed to this judgment.

Initialled: R.R.

Initialled: M.-A. E.

DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

The case-law of our Court shows that it is not always

possible to apply strictly the important rule set out in

Article 6 para. 3 (d) (art. 6-3-d) of our Convention, despite the

fact that it is stated in this very same paragraph that the rights

set out therein are minimum rights. Unfortunately, the

interpretation of this rule takes our Court into forbidden territory

so to say, i.e. the assessment of evidence, which should be the

reserved domain of the national courts. I consider that there are

insufficient reasons in the present case for departing from the rule

cited. The applicant clearly did not have an opportunity to examine

the witness Miss L., who was only heard by an investigating judge.

Neither the applicant nor his lawyer was present on that occasion.

It may perhaps be said that her testimony was not the only evidence

taken into account. Nevertheless, it seems beyond doubt that it was

by far the most important, so that this case cannot, in my opinion,

be distinguished from the Unterpertinger case.

I am therefore of the opinion that there was a violation.

JOINT DISSENTING OPINION OF JUDGES WALSH, MACDONALD AND PALM

1. In our opinion the procedure adopted by the Austrian court

amounted to a violation of Article 6 paras. 1 and 3 (art. 6-1,

art. 6-3) of the Convention.

2. The right of the applicant to question the evidence of

Miss L., by way of examination as guaranteed by Article 6 (art. 6),

was not vindicated. It was alleged that she had disappeared and

that the police had been unable to trace her, in contrast to their

success in securing the extradition of the applicant to stand trial.

The failure of the police to ensure the presence of the complainant

to give evidence in person at the trial did not justify her untested

written statement being admitted in evidence. Its admission was

very prejudicial to the applicant at his trial and in fact was

relied on by the trial court as evidence of his guilt. That there

was other incriminating evidence is beside the point. It appears

that without the use of the statement the conviction could not have

been obtained. If the case were otherwise, there would have been no

need to admit the statement. The applicant, through no fault of

his, was deprived of his right to examine Miss L. as to the accuracy

and/or truth of her obviously damaging statement which filled the

gap in the evidence necessary to secure the conviction. In the

event the prejudicial effect remained uncorrected.

3. We also agree with the reasoning in the dissenting opinion

expressed in the report of the Commission by Vice-President Trechsel

and his five colleagues.

Menu

CASE OF ARTNER v. AUSTRIA

CASE OF ARTNER v. AUSTRIA

LEXI