CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 1987

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 11831/85                       by Manfred SCHMID                       against Austria             The European Commission of Human Rights sitting in private on 9 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 28 August 1985 by Manfred Schmid against Austria and registered on 14 October 1985 under file N° 11831/85;           Having regard to the Commission's decision of 2 March 1987 to give notice of the application to the respondent Government and to invite them, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to submit observations in writing on the admissibliity and merits;           Having regard to the Government's observations of 19 May 1987, and the applicant's observations in reply of 15 June 1987;           Having deliberated;           Decides as follows:   THE FACTS           The applicant, an Austrian citizen born in 1938 who resides at Mils, Tyrol, was formerly a practising lawyer and has been debarred since 1981.   He complains of criminal proceedings in which he has been convicted of an offence under the Foreign Exchange Act (Devisengesetz). An earlier application lodged with the Commission (No. 10670/83) related to the detention and bail conditions imposed on him in connection with the same proceedings.   It was declared inadmissible on 9 July 1985.           The facts agreed between the parties may be summarised as follows:           The criminal proceedings in question originated in two different sets of investigation proceedings.           In one case, which involved charges of criminal bankruptcy (Sections 12, 156 (1) and (2) of the Penal Code) against the applicant and another person, the public prosecutor's office in Innsbruck submitted an indictment on 27 November 1980.   In this case the applicant filed an objection (Einspruch) against the indictment which was rejected by the Innsbruck Court of Appeal (Oberlandesgericht) on 22 January 1981.           In the other case, which involved inter alia a charge based on Section 24 (1) of the Foreign Exchange Act, the indictment was submitted on 30 June 1981.   It was deposited for the applicant at the post office on 19 August 1981 and he raised no objections in this case.           In the first case, the charges against the applicant were severed from those against his co-accused by a decision of the Innsbruck Regional Court (Landesgericht) of 26 March 1981.   By a subsequent decision of the same court, of 2 May 1983, these charges were joined to those in the second case.           On 10 October 1984, the Regional Court found the applicant guilty of the criminal offence stipulated by Section 24 (1) of the Foreign Exchange Act, committed by the purchase of 4 kg of gold ingots in Liechtenstein without the required permission from the National Bank.   The Court sentenced him to a conditional fine of AS 4,800.- subject to a probation period of three years.   At the same time the applicant was acquitted of all other charges which had been preferred against him.           The applicant filed a plea of nullity (Nichtigkeitsbeschwerde) against his conviction, and the public prosecutor appealed against the sentence (Berufung).           In the plea of nullity, the applicant complained that at the (first) trial on 11 July 1983 the Court had violated Section 250 of the Code of Criminal Procedure (Strafprozessordnung) in that it had failed to inform him of the statement of a co-defendant who had been examined in his absence.   He further complained that his requests for the hearing of certain witnesses had been rejected, and that the judgment lacked a detailed assessment of the evidence.           The Supreme Court (Oberster Gerichtshof) rejected the plea of nullity by a decision of 21 March 1985.   It held that any possible ground of nullity regarding the trial of 11 July 1983 had become without object as the trial had been repeated on 10 October 1984. The applicant had not made similar allegations concerning the latter trial.   As regards the applicant's requests for evidence, it was true that he had asked in writing for the hearing of certain witnesses, but he had failed to repeat these requests at the trial on 10 October 1984, and therefore he was barred from claiming an irregularity of the proceedings in this respect.   Finally as regards the reasoning of the Regional Court's judgment, the Supreme Court considered that it showed in a logical and conclusive manner why certain of the co-defendant's statements had been regarded as true.           The prosecution's appeal against the sentence was not examined by the Supreme Court itself, but was referred to the Innsbruck Court of Appeal.   In this appeal, the prosecution applied to increase the conditional fine and to impose, in addition, a substitute fine in lieu of forfeiture (Verfallsersatzstrafe) amounting to the value of the traded gold.   Section 29 (2) of the Foreign Exchange Act provides for the imposition of such a penalty if objects liable to forfeiture cannot be seized.   The prosecution submitted that the aim of this provision was to prevent that the proceeds of the criminal transaction remain in the hands of the offender.   Accordingly the gold ingots concerned in the present case should have been declared forfeited, and as they were no longer available, a substitute penalty should have been imposed.           On 12 June 1985, the Court of Appeal partly allowed the prosecution's remedy.   It declared the traded gold forfeited and imposed a substitute fine of AS 900,000.- to be replaced, in case of default, by ten months' imprisonment (Ersatzfreiheitsstrafe).   The conditional fine of AS 4,800.-, however, was not increased.   In the reasons for this decision it was stated that, in view of the scope of the applicant's illegal transactions, it was appropriate to make a declaration of forfeiture in accordance with Section 29 of the Foreign Exchange Act.   As it was certain that the gold could not be seized, a substitute fine had to be imposed in lieu of the unenforceable forfeiture.   Regarding the applicant's doubts as to the prosecution's right to claim forfeiture in the appeal proceedings after it had announced an appeal against the sentence, the Court observed that also ancillary penalties (Nebenstrafen) such as forfeiture are part of the sentence and can be requested in appeal proceedings.   &_COMPLAINTS&S   1.       The applicant now complains, under Article 6 para. 3 (d) of the Convention, that at his trial several witnesses proposed by him were not heard, and that he was thereby treated differently from the prosecution.   He further submits that his conviction was essentially based on the statements of a co-defendant which had been considered as true although it was simultaneously established that allegations by the same person as to the involvement of the applicant's brother were incorrect.   In this context the applicant criticises the joinder of the cases against himself and the co-defendant, because this measure deprived him of an effective defence.   As an accused the co-defendant   allegedly was not obliged to tell the truth nor to reply to any questions.   Had he instead been summoned as a witness, he could have been questioned and would have been obliged to tell the truth, and the applicant would further have had the possibility to throw doubt on his credibility by requesting his psychiatric examination.   All these possibilities allegedly did not exist against a co-defendant.   2.       The applicant further complains under Article 6 para. 1 of the Convention that on appeal his case was not heard by an impartial tribunal.   The Court of Appeal, when deciding on the imposition of the substitute penalty, comprised two judges who had earlier taken part in the decision of the same Court of 22 January 1981 concerning objections of the applicant against the bill of indictment.   Furthermore, the applicant claims that the proceedings were unfair because he was deprived of a remedy against the substitute penalty by virtue of the fact that this penalty was imposed on him only in the appeal proceedings.   3.       The applicant finally claims that the alternative prison sentence pronounced in default of payment of the forfeiture substitution fine lacked a sufficient base in law.   It is true that Section 32 of the Foreign Exchange Act mentions a prison sentence as a substitute penalty of forfeiture, but it does not lay down any precise criteria as to the conditions on which it applies.   In the present case the substitute penalty was moreover pronounced despite the prosecution's failure to apply for it in the trial proceedings, and without the Court having verified whether or not the ingots struck by the primary sanction of forfeiture were still available.   The applicant states that he risks the actual enforcement of the substitute prison sentence as the substitute fine is uncollectable and he considers that his imprisonment on this basis would violate Article 5 para. 1 of the Convention.   &SPROCEEDINGS&-           The application was introduced on 28 August 1985 and registered on 14 October 1985.           On 2 March 1987 the Commission decided to give notice of the application to the respondent Government and to invite them, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to submit observations in writing on the admissibility and merits.           It was specified that the observations should be limited to the complaints concerning the appeal proceedings before the Innsbruck Court of Appeal and in particular the complaint that this court was not impartial.   The Government were invited to comment on this complaint in the light of the Commission's Report of 7 May 1985 on Application No. 9976/82, Ben Yaacoub v.   Belgium.           The time limit for the submission of the Government's observations was fixed at 15 May 1987.   At the Government's request it was subsequently extended until 31 May 1987.           The Government submitted their observations on 19 May 1987. The applicant replied on 15 June 1987.   &SSUBMISSIONS OF THE PARTIES&-           A. The Government           Insofar as the applicant alleges the lack of impartiality of the Court of Appeal, the Government refer to Section 68 para. 2 of the Code of Criminal Procedure which provides for the exclusion from the trial, that is the direct oral hearing in a court of first instance, of any judge who has previously acted as an investigating judge in the same case or who has participated in the decision on objections against the indictment.   Section 69 defines special reasons for the exclusion of members of higher courts.   However, there exists case-law according to which the grounds of exclusion stipulated in Section 68 for the trial before a court of first instance are also applicable to a renewed trial before an appellate court, if a new decision is to be taken on the merits after the previous decision has been quashed by the Supreme Court.   This does not apply, however, if the appellate proceedings do not deal with questions of fact or guilt but merely with the penalty.           In the present case, the Regional Court of Innsbruck found the applicant guilty only of the offence stipulated by Section 24 para. 1 (a) of the Foreign Exchange Act.   It acquitted him of all other charges, including those contained in the indictment of 27 November 1980 which originally belonged to separate proceedings and were joined to the present case on 2 May 1983.   The Court of Appeal had to deal exclusively with the public prosecutor's appeal concerning the sentence imposed according to the Foreign Exchange Act.   The charges of the Bill of Indictment to which the applicant had raised objections had long been legally settled by the applicant's above acquittal.           The Government consider that partiality within the meaning of Article 6 para. 1 of the Convention cannot be inferred from the fact that members of the Court of Appeal had participated in a decision rejecting objections against the indictment in another, already legally terminated case against the applicant.           The two judges of the Court of Appeal did not decide twice on one and the same matter when they dealt with the objection against the bill of indictment and when they decided the appeal in the present case.   However, it follows from the Piersack and De Cubber judgments of the Court (Eur.   Court H.R., Piersack judgment of 1 October 1982, Series A no. 53;   De Cubber judgment of 26 October 1986, Series A no. 86)   as well as from the Commission's Report in the Ben Yaacoub case (Application No. 9976/82, Ben Yaacoub v.   Belgium, Comm.   Report 7.5.85),   that the decisive point was the fact that the judge had far-reaching powers in the preliminary proceedings, from which it could be gathered that he had acquired profound knowledge of the case, which enabled him to play a leading part in the taking of the decision at the trial.   In the present case, the two judges had not acquired a profound knowledge of the case simply because the earlier decision concerned a different matter.           If the applicant had nevertheless feared that these two judges might not be impartial he could have voiced his reasons in the appellate proceedings, either personally or through his counsel as soon as he learned that the two judges would participate.   It would have been incumbent upon the Court of Appeal to take a decision based on the analogous application of the provisions governing the trial of first instance.   Motions to disqualify individual members of the tribunal that are not filed in the appellate proceedings are decided upon by the President of the Court of Appeal.   In the present case it must, however, be assumed that the applicant's motion would not have been allowed.           As regards, finally, the lawfulness of the Court of Appeal's decision to impose a forfeiture substitution fine and a substitute prison sentence, the Government refer to Section 283 para. 2 of the Code of Criminal Procedure which stipulates that an appeal to the detriment of the defendant may be filed if the Court has not pronounced the harshest legally admissible penalty or has not imposed a legally admissible ancillary penalty or if the fine or prison sentence imposed did not reach the maximum level provided for by the law.   The forfeiture substitution fine as provided for in Section 29 para. 2 of the Foreign Exchange Act is an ancillary penalty which, according to Section 283 of the Code of Criminal Procedure, may be imposed to the detriment of the defendant in appeal proceedings.   There is no necessity for the Bill of Indictment to include a special motion in order to apply Section 29 of the Foreign Exchange Act.   Furthermore, the Court can immediately impose a forfeiture substitution fine instead of the non-enforceable forfeiture.   The Court of Appeal did not transgress its punitive power when it imposed a substitute prison sentence of 10 months since Section 32 para. 1 of the Foreign Exchange Act specifically provides for a substitute prison sentence for fines in lieu of forfeiture and since the scope of this provision was not exceeded in the concrete case.   Accordingly, the substitute prison penalty is provided for by law and admissible under Article 5 para. 1 (a) of the Convention.           The Government therefore request the Commission to reject the application as being manifestly ill-founded or, alternatively, to find no violation of the Convention.           B.   The applicant           The applicant observes that the two proceedings concerning offences under the Foreign Exchange Act and fraudulent bankruptcy were joined and tried together.   Therefore it is correct to say that there were judges of the Court of Appeal who had earlier participated in a decision on objections against the indictment concerning a part of the proceedings.           The Government admit that Austrian law would not allow the challenge of the two judges.   Furthermore it is impossible to separate conviction and sentence.   The Foreign Exchange Act gives the court discretion to impose a fine in lieu of a forfeiture.   An unbiased court would not have used this discretion.   Therefore the public prosecutor did not request such a penalty in the first instance proceedings because the impartial chamber of that court would not have granted the request.   Instead the prosecutor pressed the matter before the biased Court of Appeal.   This inserts itself in a campaign by the public prosecutor's office in Innsbruck against the applicant.           The applicant could not challenge the judges under Sections 68 or 69 of the Code of Criminal Procedure.   If they were biased, the judges should have stood down on their own initiative (cf.   Section 73 of the Code of Criminal Procedure).           As regards the lawfulness of the additional penalty, the applicant maintains that its imposition in the appeal proceedings was inadmissible because he was thereby deprived of a remedy.   He further observes that Section 32 para. 1 of the Foreign Exchange Act does not provide a sufficiently precise legal basis for the substitute prison sentence.     THE LAW   1.       With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;   No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).   2.       The applicant complains under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention of the trial proceedings which led to his conviction.           Article 6 para. 3 (d) provides (Art. 6-3-d):           "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."   The applicant claims that the Court unjustifiedly refused to hear certain witnesses proposed by him and that he could not put questions to the co-accused on whose evidence his conviction was primarily based.           The Commission notes that the applicant has in substance raised these complaints in the domestic proceedings by including them in his plea of nullity to the Supreme Court.   However, as regards the refusal to hear certain witnesses the plea of nullity was rejected on the ground that the applicant had not repeated his requests for evidence at the trial itself as required under Section 246 of the Code of Criminal Procedure.   The Commission recalls its case-law according to which "an applicant is normally required to comply with the formal conditions of the domestic law as regards his requests for witnesses' evidence, otherwise he will be considered as having failed to exhaust the domestic remedies in good order" (Application No. 10498/83, Prasser v.   Austria, dec. 7.12.1984, to be published).   In the present case the applicant did not comply with the conditions of Austrian law as regards his requests for the hearing of the witnesses in question.   He therefore has not exhausted the domestic remedies in conformity with the requirements of Article 26 (Art. 26) of the Convention.   This part of the application must accordingly be rejected under Article 27 para. 3 (Art. 27-3).           Insofar as the applicant had complained of the impossibility to put questions to the co-accused, his plea of nullity was rejected on the ground that it related only to a trial which was subsequently repeated, and that he had not raised similar complaints regarding the ultimate and decisive trial of his case.   In these circumstances it appears that the applicant again has not exhausted the domestic remedies in good order.   Moreover, even assuming that the applicant may nevertheless be regarded as having exhausted the domestic remedies insofar as he complains of the applicable legislation which allegedly did not allow him to question a co-accused, as distinguished from a witness in the formal sense, his submissions are contradicted by the Code of Criminal Procedure itself.   Section 248 (4) provides that the accused shall be asked immediately after the examination of any witness, expert or co-accused whether or not he wishes to reply to the latter's testimony.   Section 249 further provides that inter alia the accused and his defence counsel have the right to put questions to any person heard by the Court, subject to control by the President of the Court as to whether any questions so put are inappropriate.   Section 250 finally provides that, in the exceptional cases where a witness or co-accused is heard in the absence of the accused, the latter must after his readmission to the courtroom be informed, under sanction of nullity, of any development of the proceedings which has taken place in his absence, and in particular of the depositions which have been made.   In these circumstances there is no appearance of an infringement of the rights of the defence as laid down in Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.   This part of the application must accordingly be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant further complains under Article 6 para. 1 (Art. 6-1) of the Convention of the proceedings before the Innsbruck Court of Appeal.           Article 6 para. 1 (Art. 6-1), first sentence, provides:           "In the determination of his civil rights and         obligations or of any criminal charge against him,         everyone is entitled to a fair and public hearing         within a reasonable time by an independent and         impartial tribunal established by law."   The applicant alleges on the one hand that two of the judges lacked impartiality because of their involvement in a previous decision concerning objections against the indictment, and on the other hand that it was unfair to impose additional sanctions on him in the appeal proceedings.           As regards the first complaint, the Commission notes that the applicant did not challenge the judges under Sections 72 and 73 of the Code of Criminal Procedure.           However, according to the Government the remedy in question did not have any prospects of success;   it must therefore be regarded as ineffective.   In these circumstances the applicant was not, under Article 26 (Art. 26) of the Convention, required to exhaust this remedy.           The applicant submits that the Court of Appeal which imposed an additional sanction on him was not impartial because two judges had in an earlier decision of the same court rejected an objection raised by the applicant against the indictment.   However, that decision, which was given on 22 January 1981, concerned a different case.   The relevant proceedings, which involved charges of criminal bankruptcy, were at that time conducted separately from those which involved the charge under the Foreign Exchange Act.           It is true that the two sets of proceedings were subsequently joined by a decision of 2 May 1983 and that in first instance all charges were the subject of the same trial before the Regional Court of Innsbruck.   However, the applicant was eventually convicted only under the Foreign Exchange Act and acquitted of all other charges. The appeal proceedings of which he now complains concerned exclusively the offence under the Foreign Exchange Act.   The proceedings concerning the charges of criminal bankruptcy against whose admission the applicant had filed an objection, and of which he had been acquitted, were then no longer pending.           According to the principles developed by the Court (Eur.   Court H.R., Piersack judgment of 1 October 1982, Series A no. 53;   De Cubber judgment of 26 October 1986, Series A no. 86) and the Commission (Application No. 9976/82, Ben Yaacoub v.   Belgium, Comm.   Report 7.5.85), the judicial "impartiality" required by Article 6 para. 1 (Art. 6-1) of the Convention may be jeopardised if a judge takes part in several consecutive stages of the proceedings.   In particular in the Ben Yaacoub case the Commission found that a judge who had taken part in a decision concerning the admission of the indictment should not participate in the subsequent trial proceedings (Comm.   Report, loc. cit. paras. 108-109).   In the Commission's view he should also be excluded from the appeal proceedings.           However, as the Government rightly observe, these principles only apply where participation in different stages of the same proceedings is concerned.   A judge is not necessarily biased merely because he has been involved in other proceedings concerning the same person.   In the present case other proceedings were temporarily combined with the present case and two Court of Appeal judges had earlier participated in a decision concerning those proceedings. This, however, does not in the Commission's view justify the finding that the judges concerned were not impartial, as required by Article 6 para. 1 (Art. 6-1).   Their involvement in the criminal bankruptcy case, although concerning the same person, is not sufficient a reason to assume that they were prejudiced in the foreign exchange case.           It follows that the applicant's first complaint concerning the Court of Appeal's proceedings is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           As regards the second complaint, the Commission notes that the imposition of an additional sanction in the appeal proceedings deprived the applicant of the possibility of filing an appeal which he would have had if the sanction had been pronounced by the trial Court itself.   However, this circumstance cannot in itself be considered as unfair as no right to criminal appeal proceedings can be derived from the Convention and in particular from Article 6 (Art. 6) (cf. the constant case-law, e.g.   Eur.   Court H.R. Sutter judgment of 22 January 1984, Series A no. 74, p. 13 para. 28).   The Commission further notes that in the present case the prosecution had requested the additional sanction in its grounds of appeal and that the applicant was able to make submissions in reply.   Furthermore an oral hearing took place before the Court of Appeal in which the applicant was represented by counsel and therefore was able to defend himself.   It has not been substantiated that the principles of a fair hearing, including the specific principles enshrined in Article 6 para. 3 (Art. 6-3) of the Convention, have been disregarded at this hearing.   It follows that the applicant's above complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant finally complains that the alternative sanction imposed on him in the appeal proceedings, i.e. a term of imprisonment to be served in default of the payment of the fine replacing the forfeiture (Ersatzfreiheitsstrafe für die Verfallsersatzstrafe), lacked a sufficient legal basis.   In this respect, the applicant invokes Article 5 para. 1 (Art. 5-1) of the Convention, claiming that the imminent deprivation of his liberty on this basis would be unlawful.           The Commission considers that the substance of the applicant's above complaint, namely his allegation that a penal sanction was imposed on him without a sufficient legal basis, comes within the scope of Article 7 para. 1 (Art. 7-1) of the Convention.           This provision reads as follows:           "No one shall be held guilty of any criminal         offence on account of any act or omission which         did not constitute a criminal offence under         national or international law at the time when         it was committed.   Nor shall a heavier penalty be         imposed than the one that was applicable at the         time the criminal offence was committed."           The second sentence of this provision clarifies that not only the definition of any criminal offence, but also the penalties which may be imposed for it, must in principle be determined by the law prior to the commission of the offence in question.   A sufficient legal basis of the "applicable penalty" is in fact presupposed when it is stated that no heavier penalty than the one "applicable" at the time of the commission of the offence may be imposed.           However, with regard to the particular facts of the present case the Commission notes that the penalty complained of, i.e. imprisonment as an alternative sanction for a fine replacing forfeiture, is indeed mentioned in Section 32 of the Foreign Exchange Act.   It provides that imprisonment as an alternative to a fine replacing forfeiture, and imprisonment as an alternative to another fine, taken together, shall not exceed the total length of eighteen months.   This shows that the sanction complained of was provided for by law and limited as to its scope.   The Commission considers this to be a sufficient legal basis for the purposes of Article 7 (Art. 7).           As to the imposition of the challenged penalty in this particular case the Commission notes that under Austrian law an ancillary sanction such as this could lawfully be imposed in appeal proceedings, and that the conditions for replacing forfeiture by a fine or imprisonment were also met because the Courts had actually established that the ingots were irretrievable.   The applicant has not substantiated in any way that this latter finding was based on wrong factual assumptions, in particular he has not made any submissions that the ingots were still in his possession.           The applicant's above complaint that this penal sanction lacked a sufficient legal basis is therefore manifestly ill-founded and must also be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission                President of the Commission             (H.C. KRÜGER)                                (C.A. NØRGAARD)