CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 février 1973

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   The facts of the case as submitted by the applicants may be summarised as follows:   The applicants are German citizens and at present are detained in D. prison on remand. In the proceedings before the Commission, the first applicant, born in 1908, is represented by Mr. A., a lawyer practising in Munich, the second applicant, born in 1911, is represented by Mr. P., a lawyer practising in Darmstadt, and the third applicant, born in 1911, by Mr. F., a lawyer practising in Frankfurt. All three applicants are charged with having committed murder on several accounts during the second world war in Poland, when they carried out their functions as GESTAPO agents. The applicants, who are awaiting trial at the Darmstadt Regional Court, are complaining before the Commission that important witnesses were heard on commission by Austrian courts without the applicants' counsel being allowed to be present.   1.     It appears that in 1970 the Presiding Judge of the Darmstadt Regional Court requested by letters rogatory the District Court of Klagenfurt, on the basis of Article 8 of the Austro-German Treaty on Mutual Assistance in Criminal Matters, to hear on commission a witness residing in Klagenfurt whose evidence was considered to be relevant to the criminal proceedings opened against the applicants. It appears that the Presiding Judge also requested permission to assist, together with three other judges at the hearing of this witness and he also informed the District Court that the applicants' counsel had requested to be present at this interrogation. In accordance with the usual practice, copies of this request were sent by the Hessian Minister of Justice to the Austrian Federal Minister of Justice. The latter gave the request to the District Court with the comment that he had no objection to the above judges assisting but that the presence of counsel for the applicants must be excluded in view of the cogent provisions of the Austrian Code of Criminal Procedure.   On .. January 1971 the Klagenfurt District Court fixed the hearing of the above witness for .. February 1971. The applicants appealed against this decision and requested the Klagenfurt Regional Court to allow the presence of applicants' counsel at the hearing. The Regional Court, however, decided on .. February 1971 that the applicants' appeal was inadmissible for several reasons. The Court held first that the appeal had not been signed by a member of the Austrian Bar and that it was therefore inadmissible. As to the merits of the appeal, the Court held that appeals can be lodged against decisions only but not against mere information of the existing law. In the present case, the District Court had only informed the Presiding Judge of the Darmstadt Court that counsel were not admitted, but no decision had thereby been taken. The Regional Court added that the only decision taken by the District Court was to hear the above witness on the date indicated, and that according to the well established case-law no appeal could be laid against such decision. The applicants had apparently also complained that a hearing of a witness in the absence of applicants' counsel would violate Article 6 (3) (d) of the Convention, but the Regional Court said in this respect that it was bound to apply the existing legislation, even if it were at variance with the Convention, since under the Austrian Constitution the courts are bound also by unconstitutional laws, as long as they were not quashed by the Constitutional Court. The Court concluded that, therefore, Article 162 of the Code of Penal Procedure which provides that witnesses are heard by the Investigating Judge in the absence of the Public Prosecutor and the accused as well as of other persons involved was binding for it.   2.    On .. May 1971 the Public Prosecutor of the Darmstadt Regional Court again requested the hearing of another witness in Austria. This witness was serving a sentence in prison in Krems, and the request was therefore directed - in the above way - to the Krems Regional Court. In his request, the Public Prosecutor again requested the Austrian Court to allow the presence of several judges, the German Public Prosecutor and applicants' counsel. On .. May 1971 counsel for the applicants submitted to the above Court a memorandum setting out in detail why they requested to be present when the above witness was heard by the Austrian Court.   On .. June 1971 the Regional Court of Krems informed the Darmstadt Public Prosecutor that the hearing of the above witness was fixed for .. June 1971 at 8.00 hours, and that he had reported to the Federal Ministry the question of the presence of German judges, the Public Prosecutor, and of counsel for the applicants. As soon as the Ministry had decided this question, the Court would inform the German authorities of the decision reached.   On .. June 1971 the Federal Minister of Justice informed the Hessian Minister of Justice that there were no objections to the participation of the German judges in the hearing of the above witness, but that the presence of counsel for the applicants could not be allowed in view of the cogent provisions of Austrian procedural law. The Krems Regional Court sent a copy of the above information to the Public Prosecutor of Darmstadt on .. June 1971 and requested him to inform counsel for the applicants accordingly.   Complaints   The applicants now complain that the facts reported above under 2. show a violation of their rights under Article 6 (3) (d) of the Convention, since they had no right to put questions to the witness heard in Austria in the absence of counsel.   Submissions of the parties   The Austrian Government, while reserving their rights under Article 26 of the Convention, submit that this application is manifestly ill-founded for the following reasons:   Article 6 (3) (d) of the Convention is, in their submission, not applicable since the applicants were not charged before an Austrian court, nor was a criminal charge determined against them by that hearing of a witness on commission. According to the Government a possible violation of Article 6 (3) (d) of the Convention could exclusively be imputed to that criminal court which finally determined such charge. The Government also submit that, in any event, no such violation of this Article could be found since the equality between prosecution authorities and defence had been safeguarded in these proceedings, as the Public Prosecutor was also not invited to assist at this interrogation of a witness. The Government further submit that the above Article of the Convention did not enshrine a guarantee to examine witnesses directly, but it only provided that the defendant had the right to "have examined witnesses". In this respect it is stated that the applicants did not fully use this right since they did not request the inclusion of their specific questions into the letters rogatory; it is stated, however, that after consulting the protocol of the interrogation of the witness, they requested that this witness should again be heard on questions they wished to ask him, and the witness accordingly was again interrogated.   As regards the domestic legal situation the Government submit that according to the Austrian-German Agreement in the execution of letters rogatory the law of the requested state has to be applied, i.e. Austrian law in the present case.   According to the terms of Article 162 of the Austrian Code of Criminal Procedure witnesses have to be heard by the Investigating Judge in the absence of the prosecutor, the private party, the defendant, and other witnesses. The Government state that this provision could not be at variance with Article 6 (3) (d) of the Convention, since Article 4 of the European Convention on Mutual Assistance in Criminal Matters left expressly to the requested State parties to be present at the execution of letters rogatory but, even if the letter were allowed, they were not entitled to put questions. In this respect it is said that it was hardly likely that a provision incompatible with the Convention would have been included in a Convention which was agreed by States who were also signatories to the European Convention on Human Rights.   The applicants submit that the Austrian Government have prevented them from having cross-examined the said witness, who was a prosecution witness, and in this respect it was unimportant whether Article 6 (3) (d) of the Convention as such was applicable in such hearings on commission or whether the applicants were in the same position as was the Public Prosecutor, who was equally not allowed to attend the interrogation. In this respect they submit that they did not suggest to put these questions personally, or by their counsel, but by the judge. They further state that it would have been impossible to formulate in advance questions of the defence to be included in the letters rogatory, since this is exclusively feasible if the witness heard was a defence witness, unlike the present one. Questions to a prosecution witness usually emerge, according to the applicants, at the moment when he is heard. The applicants further submitted that it would have not been possible to ask this witness questions after having studied the record of the hearing, since in order to achieve such additional hearing the defence has to indicate facts on which the witness could give information. With regard to the second hearing of this witness it is stated that then he was heard as a defence witness. The applicants indicate that all the other member States of the European Court allow the presence of counsel in hearings on commission.   As regards the explanations of the Government relating to the domestic legal situation the applicants submit that Article 162 mentioned by the Government was exclusively to be applied during the preliminary investigation, as long as the Investigating Judge was dealing with a case. They also mention that no explicit rule of the Austrian Code provided the absence of the parties during an interrogation of a witness in execution of letters rogatory, and that therefore, Article 162 was only applied by analogy. There was, however, according to them, no basis for the analogy drawn up by the Austrian authorities which applied this Article, since the applicants' case was at the trial stage and not at the investigation stage.   THE LAW   The applicants have complained to the Commission that the Austrian Government have refused to allow their counsel to participate in the hearing on commission by a judge of the Krems Regional Court of a witness against them. They allege that, thereby, they were prevented from putting questions to this witness through counsel and that, consequently, their rights under Article 6 (3) (d) (Art. 6-3-d) of the Convention were violated.   The Commission, in this respect, has first examined the question whether the applicants' complaint raises an issue in connection with the right to a fair trial within the meaning of Article 6 (1) (Art. 6-1) of the Convention. This provides that "in the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...". However, having had regard to the particular features of the proceedings in question, the Commission finds that this hearing on commission of the witness against the applicants did not form part of the criminal proceedings whereby the charges against the applicants were determined. This provision of Article 6 (1) (Art. 6-1) of the Convention is, consequently, not applicable to the above hearing and is irrelevant to the applicant's complaint.   For this reason the applicants' complaint, as regards any such question of a fair hearing, is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 (2) (Art. 27-2), of the Convention.   The Commission has then had regard to the terms of Article 6 (3) (d) (Art. 6-3-d) of the Convention which provides that "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;". In this respect it notes the respondent Government's objection that this provision is not applicable in the circumstances of the present case since the applicants were not charged before an Austrian court. The Commission has accordingly first examined the question whether it has competence ratione personae to deal with the applicants' complaint which was brought against the Austrian Government. In this respect it finds that the Austrian authorities were fully responsible for the form and conduct of this hearing on commission including the question of who should participate at the hearing. Indeed, this hearing was exclusively governed by the rules of the Austrian Code of Criminal Procedure and their interpretation by the Austrian authorities. The Commission therefore decided that it cannot reject the applicant's complaint as being incompatible ratione personae with the Convention.   The Commission has already found that the provisions of Article 6 (1) (Art. 6-1) of the Convention did not apply to the present applicants, since their complaints were not related to that stage of the criminal proceedings whereby the charges against them were determined. This finding, however, does not affect the applicability of Article 6 (3) (d) (Art. 6-3-d) of the Convention to these complaints since its provisions expressly apply to "everyone charged with a criminal offense" and, consequently, to the present applicants who were charged with a criminal offense, albeit before the German courts. Their complaints cannot therefore be rejected on the ground that they fall outside the scope of Article 6 (3) (d) (Art. 6-3-d) of the Convention. The Commission consequently finds that the Austrian authorities were in the present case bound to observe the said provisions of Article 6 (3) (d) (Art. 6-3-d) of the Convention.   The Commission, having established that Article 6 (3) (d) (Art. 6-3-d) is applicable to the applicant's complaint against Austria, has then examined the question whether or not this provision was in fact respected by the Krems Regional Court. Having had regard to the course of the proceedings and, in particular, to the circumstance that the witness against the applicants was, on their request, re-heard on commission after the applicants had studied the record of his first examination, the Commission finds that the applicants' complaint under Article 6 (3) (d) (Art. 6-3-d) of the Convention is manifestly ill-founded under Article 27 (2) (Art. 27-2), of the Convention since their right "to examine or have examined witnesses" has been respected by the Austrian authorities.   For these reasons the Commission DECLARES THIS APPLICATION INADMISSIBLE