CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 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. 12477/86                       by E.S.                       against Austria             The European Commission of Human Rights sitting in private on 12 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              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 21 August 1986 by E.S. against Austria and registered on 20 October 1986 under file N° 12477/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS             The facts of the case, as submitted by the applicant, may be summarised as follows:           The applicant, an Austrian national born in 1927, is a pensioner.   He is presently detained in Garsten prison, Upper Austria.           On 20 November 1985 he was convicted by the Innsbruck Regional Court (Landesgericht) of burglary (schwerer Diebstahl durch Einbruch) and of using false documents (Urkundenfälschung).           During the trial the applicant had to leave the Court room while several witnesses were examined by the Court.   His defence counsel was present during their examination which mainly concerned the question of the alibi of the applicant's co-accused.           At the trial the applicant had also requested the examination of two anonymous witnesses.           In its judgment the Court, which had examined the police officers who had interrogated these anonymous witnesses, referred to their statements before the police.           On the basis of the testimony of the police officers the Court found that the two witnesses had noticed the applicant's car during the night when the burglary was committed, and that they had also seen two men in the vicinity of the place of the crime and had later recognised the applicant as one of them.   The Court, which was not aware of the identity of these witnesses either and had not examined them in person, found them to be credible persons.           The applicant's request to have these witnesses summoned and to be confronted with them was rejected by the Court on the ground that the police officers concerned were not allowed by their superiors to reveal the identity of these witnesses and that otherwise this prohibition would be circumvented.   Moreover, the scope of their perceptions sufficiently resulted from the statements of the police officers.           The Court also took into account that the applicant had admitted having been at the locality in question during the night of the offence and that a screwdriver with stains of paint was found at the place of the offence and another screwdriver with identical stains was later found at the applicant's home.   Furthermore, part of the stolen money consisted of 5- and 10-AS coins of a value between 8000 and 10000 AS, and a considerable sum of money, including a large number of coins, was discovered in the possession of the applicant when he was arrested two days after the offence.   Finally, the Court believed the applicant capable of such a crime in view of his previous convictions.           As regards the conviction for use of false documents the Court found that the applicant had produced a falsified Italian driving licence when asked to prove his identity after having been arrested by the police on 22 May 1985.   He had also shown this driving licence at a traffic control during the spring of 1985.           The applicant's plea of nullity (Nichtigkeitsbeschwerde) was rejected by the Supreme Court (Oberster Gerichtshof) on 20 March 1986. The Supreme Court concluded that the examination of the two anonymous witnesses had not been necessary as their testimony was not relevant in view of the fact that the applicant had admitted having been at the locality of the crime at the relevant time.   The Court also rejected the applicant's complaint that he had not been informed of the testimony of his co-accused who had been examined by the trial court in his absence.   The Court found that according to the minutes of the trial both accused had been confronted with each other's statements. Finally, the Supreme Court rejected the applicant's complaint that the Court had based its judgment - as far as the use of false documents was concerned - on the applicant's wife's statement before the police although she had made use of her right to refuse to testify at the trial.           On 24 April 1986 the applicant's appeal against sentence (Berufung) was dismissed by the Supreme Court.     COMPLAINTS             Before the Commission the applicant complains of the refusal of the trial Court to summon the two anonymous witnesses and to examine them in Court.   He invokes Article 6 para. 3 (d) of the Convention.           He also complains that he was unable to put questions to other witnesses because he had been removed from the Court room during their examination.           He also alleges that the police did not find a screwdriver at the place of the crime and that the statement to the contrary made by a police officer at the trial was untrue.           He further contends that he did not produce the false driving licence when asked by the police to prove his identity, but that this licence was found on him when he was searched.   Therefore he did not "use" a falsified document and consequently he did not commit an offence under Austrian law.           By letter of 29 June 1987 the applicant added a further allegation of a violation of Article 13 of the Convention.   Apparently this allegation relates to the refusal, on 25 June 1986, of the Review Chamber (Ratskammer) of the Innsbruck Regional Court to institute criminal proceedings against two police officers who allegedly had given false testimony at the applicant's trial.   THE LAW     1.       The applicant complains that he was wrongly convicted and sentenced on 20 November 1985 by the Innsbruck Regional Court and also of the court proceedings concerned.           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 p. 222; No. 5258/71, Dec 8.2.73, Collection 43 p. 71; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).           Consequently, the Commission will not re-evaluate the evidence given or interpret the relevant Austrian law as applied in the instant case.   In particular, as far as the question of the applicant's Italian driving licence and of the screwdriver is concerned, the Commission notes that the applicant had, according to the minutes of the trial, the opportunity to put questions to the two police officers giving testimony on these points before the trial Court.   The Commission finds no indication that any of the applicant's rights under the Convention was violated in this respect.   On the other hand, the evaluation of evidence obtained in accordance with the guarantees provided for in the Convention is, in principle, for the trial Court which establishes the facts of the case by weighing the - conflicting, as the case may be - evidence before it.           It is true that in this case the applicant also complains that the Regional Court did not itself hear the two anonymous witnesses.   In this connection he alleges a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.           However, Article 6 para. 3 (d) (Art. 6-3-d) does not grant the defence total freedom to call any potential witness at any time in the proceedings, but allows a refusal to call witnesses whose statements are not likely, with regard to the charge, to assist in ascertaining the truth (cf. e.g.   No. 8231/78, Dec. 6.3.82, D.R. 28 p. 1. [25]; No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127 [135]).           In the present case, the Supreme Court, whose decision must also be taken into account when assessing the fairness of the proceedings, found that the testimony of the two anonymous witnesses was not relevant to the applicant's conviction.   Again, the Commission will not re-assess such a finding unless there are indications that it is based on arbitrary or unreasonable considerations.   The Commission notes in this context that the applicant had admitted having been in the vicinity of the place of the crime during the night in question and that the testimony of these two witnesses was limited to the statement that they had seen the applicant (and another man) and his car at this place during this very night.   Under the circumstances the Commission cannot find that the refusal to hear these two witnesses in person was unjustifiable or arbitrary although the reasons given therefor by the Regional Court might in different circumstances raise an issue under the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     2.       The applicant also complains that he was removed from the Court room during the examination of several witnesses and that he had no opportunity to put questions to them.           It is true that the removal of an accused from the Court room when witnesses are heard in a case against him may raise an issue under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention (cf.   No. 8395/78, Dec. 16.12.81, D.R. 27 p. 50 [54]).   However, under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of internation law.           The Commission notes that in the instant case the applicant did not raise this particular complaint in his plea of nullity.   It is true that before the Supreme Court he complained that he had not been duly informed of the statement of his co-accused who had been examined in his absence - an issue which he does not pursue in the present application - but he did not complain of his removal from the Court room during the examination of witnesses.   He has not therefore exhausted the remedies available to him under Austrian law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the general recognised rules of international law, from exhausting the domestic remedies at his disposal.           Accordingly, this part of the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   3.       As regards, finally, the applicant's allegation of a violation of Article 13 (Art. 13) of the Convention, the Commission recalls that the Convention does not as such guarantee a right to institute criminal proceedings against third persons (No.   7116/75, Dec. 4.10.76; D.R. 7 p. 91).   In particular, Article 13 (Art. 13) does not confer upon a convicted person the right to challenge the trial Court's findings by way of instituting criminal proceedings against witnesses who allegedly gave false testimony.           This part of the application must therefore be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art; 27-2).             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE       Secretary to the Commission          President of the Commission           (H. C. KRÜGER)                        (C. A. NØRGAARD)