JOINT DISSENTING OPINION OF JUDGES SIR VINCENT EVANS AND BERNHARDT

1.   We are unable to share the view of the majority of the Court that there was no violation of Article 6 (art. 6) of the Convention in this case.

2.   The St Pölten Regional Court found Mr Asch guilty of two offences against Mrs J.L. - intimidation, in particular by threatening her with a rifle, and causing her actual bodily harm. In reaching its findings the court had regard to the statement made at the trial by Officer B., the contents of the police report and the applicant ’ s answers to the charges against him. Nevertheless, it was on Mrs J.L. ’ s statement to the police, which she refused to confirm at the hearing before the court, that Mr Asch ’ s convictions on both counts were essentially based. It is true that there was corroborative evidence that in the course of their quarrel she had suffered injuries, but he contended that they were the result of an accident and he denied the allegation that he had threatened her with a rifle. Because Mrs J.L. availed herself of the right to refuse to give evidence at the trial there was no opportunity at any stage of the proceedings for the applicant or his lawyer "to examine" her as a witness against him in accordance with paragraph 3 (d) of Article 6 (art. 6-3-d).

3.   While we concur with the approach of the European Court to the interpretation of the relevant provisions of Article 6 (art. 6) as stated in paragraphs 25-27 of the Court ’ s judgment, the question remains whether the rights of the defence were duly respected in this case.

4.   It is pertinent to note that Mrs J.L. ’ s statement to the police was made several hours after the alleged attack. In the circumstances the possibility could by no means be excluded that her version of events was incorrect in material respects. There was further reason to question its veracity when she decided to withdraw her complaint and refused to confirm her statement at the hearing before the St Pölten Regional Court . In a case of this kind the need to establish the true facts beyond reasonable doubt is, of course, relevant not only to the question whether the accused was guilty of the offences charged but also, in the event of conviction, to the fixing of the sentence to be imposed.

5.   We in no way call into question the compatibility with the Convention of the right under Austrian law of Mrs J.L. to refuse to give evidence at the hearing. In consequence of the exercise by her of this right, however, we are of the view that Mr Asch was, as in the case of Mr Unterpertinger (see the Court ’ s judgment of 24 November 1986, Series A no. 110), convicted on the basis of testimony in respect of which his defence rights were restricted to an extent that he did not have a fair trial.

6.   For these reasons we conclude that there was a breach of paragraph 1, taken in conjunction with paragraph 3 (d), of Article 6 (art. 6-1, art. 6-3-d) of the Convention.

[*]  The case is numbered 30/1990/221/283.  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 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: for practical reasons, this annex will appear only with the printed version of the judgment (volume 203 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.