CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 septembre 1988

.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. 12262/86                       by S.                       against Austria             The European Commission of Human Rights sitting in private on 8 September 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   J. RAYMOND, Deputy 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 26 May 1986 by S. Austria and registered on 11 July 1986 under file No. 12262/86;           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 citizen apparently born in 1946, is a labourer resident in Linz.   Before the Commission he is represented by Dr.   G. Tews, a lawyer practising in Linz.           The applicant has been married since 1974 and the father of six children, four of whom live with their parents.   One daughter lives in a childrens' home, another daughter, A., has been living with her grandparents since her birth in 1972.   I           On 18 November 1984 the daughter A. was visiting her parents. According to the applicant's subsequent submissions, on this occasion A. told him that her breast was hurting.   The applicant then went into the children's room with the daughter, locked the door and examined A.'s breast, whereupon he advised her to visit a doctor.           The next morning at school, two friends of A. went to the teacher, Mrs.   J., and told her that something terrible had happened to A.   Mrs.   J. questioned A. and then called the police.           According to the police minutes (Bericht) prepared on 19 November 1984 by the Linz Federal Police Direction (Bundespolizei- direktion), A. told the police that she had been abused by her father. She claimed that he had gone into a room with her and, after taking off his trousers and shirt, had lain on her.   Thereby he had asked her about his genitals and had shown her how to make children.   A. stated that the applicant had not touched her and had not undressed completely.   During the occurrences she had not called for help as the applicant had ordered her to keep quiet.   In A.'s submissions, the applicant frequently beat her, particularly when he was drunk, for which reasons she often had bruises.           On 19 November 1984 the applicant was arrested on suspicion inter alia of having committed an indecent act with a minor.   On the same day, the applicant explained before the police that A. had complained of pains in her breast, whereupon he had examined it. However, he had thought nothing of doing so and had not done so to be aroused.   The applicant denied A.'s statements, namely that he had undressed or made certain movements, or that he had threatened her. The applicant also denied having caused bruises to the children by beating them.           On 20 November 1984 the police questioned A.   She denied having complained about breast pains, or that the applicant had touched her, though she had clearly felt him being aroused.   According to the same police minutes, two police officers visited the room concerned.   They noted that the bed was in the darkest corner of the room, thus contradicting the applicant's statement that he had wanted to look at his daughter.   According to the police minutes, when visiting the room, A. had told the police officers that the applicant had lain on her.   The police minutes concluded that the impression gained was that A. was telling the truth.           The applicant was also questioned by the police on 20 November 1984.   He was informed that A. upheld her statements.   The applicant now submitted that while examining his daughter he had lain sideways between A.'s legs.   He denied all other accusations.           Thereupon, the Linz Federal Police Direction filed with the Linz Public Prosecutor's Office (Staatsanwaltschaft) a criminal report (Strafanzeige) in which it suspected the applicant of having abused A. to submit to indecent acts.           On 22 November 1984 the applicant was informed by the investigating judge at the Linz Regional Court (Landgericht) of the criminal proceedings instituted against him.   The applicant claimed that he was not guilty and requested A. to be heard as soon as possible.   He also announced that he would file an appeal against his detention on remand.           The investigating judge at the Linz Reginal Court questioned A. on 23 November 1984.   The latter was informed of her right under S. 152 of the Code of Criminal Procedure, according to which, as a member of the accused's family, she was exempted from the obligation to give evidence.   However A. expressed the wish to give evidence. After reiterating the occurrences on 18 November 1984 she pointed out that the applicant had threatened to beat her with a rubber hose if she spoke to others about the occurrences.           On 23 November 1984 the applicant was also heard by the investigating judge.   He withdrew his appeal against his detention on remand.   He explained that there was a rubber hose in the house with which he occasionally threatened the children, though he had never caused them any bruises.   In respect of the events on 18 November 1984 the applicant told the investigating judge that it was possible and probable that he had been aroused during the incident but he could no longer remember.   He might also have made certain movements, though again he could not remember.           The investigating judge then pointed out that in fact the applicant was now admitting the offences.   The applicant thereupon admitted having committed an indecent act with a minor.   However, he denied having undressed or having asked A. about his genitals, or having threatened her.   He also could not recall whether or not he had been aroused.           On 29 November 1984 the applicant requested his release from detention, stating that he had nothing to do with the whole affair. He was released on 24 December 1984.           On 10 June 1985 the Public Prosecutor's Office indicted the applicant, inter alia, of having committed an indecent act with a minor.   II           The trial took place at the Linz Regional Court on 30 September 1985.   A. stated at the outset that she would avail herself of her right under S. 152 of the Code of Criminal Procedure (Strafprozessordnung) to refuse to give evidence.           The applicant, who was assisted by a lawyer, was heard first. He submitted that he was not guilty, and that his statements before the investigating judge on 23 November 1984 were incorrect.   A. herself had on 18 November 1984 lifted up her pullover, and if she said that she had felt him being aroused, this was probably due to a bunch of keys which he had in his pocket.           The applicant explained that on 23 November 1984 before the investigating judge he had been upset (aufgeregt) and had been pressed hard (bedrängt) by the investigating judge who had told him that, if he did not admit his guilt, he would have to stay in detention until the trial.   He also did not remember everything he had said on that occasion.   In respect of the rubber hose, the applicant explained that he only threatened his children with it.   In the applicant's submissions, A. hated him and now wanted to "land him in it" ("hineintunken").   Another son, M., had told him of a conversation with A., whereby the latter said that she had made up the whole story and that she wished he, the applicant, would be dead.           The applicant's wife, heard as a witness, stated that she could not recall whether her husband had ever been aggressive towards the children.   She believed that A. had reported the applicant to the police because she hated him.   One of A.'s brothers, M., had reported to her, the mother, that A. had told him that she had made up the whole story.   A second brother had also heard this.           The teacher, Mrs.   J., testified that she had once noticed bruises on A.'s legs and arms.   A. had then told her that the applicant had thrown wooden slippers at her.   Mrs.   J. recalled how A. had told her about the events on 18 November 1984.   In Mrs.   J.'s opinion, A. did not lie very often, and she did not have the impression that A. was now making up a story.   Mrs.   J. also did not have the impression that A. had convinced herself (reingelernt) of the story, though she could also not exclude it.   She observed that she was a person to whom A. had always had confidence.           The Court also heard the medical opinion of a professor who concluded that the applicant was on the verge of debility (Grenzdebilität) and inclined to chronic alcoholism.   It was possible that such persons could become aggressive and also commit indecent acts.           Despite the applicant's objections, the police minutes recording A.'s statements before the police and the investigating judge were then read out in Court according to S. 252 para. 2 of the Code of Criminal Procedure.   According to S. 252 para. 1, minutes of the questioning of witnesses may be read out at the trial if, without being entitled thereto, they refuse to give evidence.           According to the practice of the Austrian courts, the statements which the same witnesses had previously made before the police nevertheless could be read out as they were considered as documents within the meaning of S. 252 para. 2 of the Code of Criminal Procedure.   This provision provides that reports on inspections and tests as well as other types of documents and papers relevant to the matter must be read out unless both parties waive their reading.           Upon the applicant's request, the Court then asked the applicant's son, M., to testify.   However, M. invoked his right under S. 152 of the Code of Criminal Procedure not to do so.           On 30 September 1985 the Regional Court convicted the applicant of forcing A. to commit an indecent act, of having committed an indecent act with a minor, of abusing his position of authority, and of exercising compulsion (Nötigung) on her.   The applicant was sentenced to one year's imprisonment.           In its judgment the Court found it established that on 18 November 1984 the applicant locked himself into a room with A., sat next to her on a bed, and then suddenly threw her back onto the bed.   He then undressed, with the exception of his underwear, thereby threatening her, if she would call out.   The Court found that the applicant then rubbed his genitals on those of A. After being aroused, he stopped and dressed.   He then threatened to beat A. with a rubber hose if she reported the incident to anybody.           The Court noted that the applicant had admitted the offences before the investigating judge.   If before the Court he now argued that he only did so to be released from detention, the Court found that he had then expressly stated that he was admitting the offences. It was also not credible if the applicant later claimed that he no longer recalled what he had said before the investigating judge.           On the other hand, the Court regarded A.'s statements before the police as credible.   In particular, she had not spoken of a gross sexual act (massives sexuelles Vorgehen), as would be likely if she were fabricating a story, and her statement to Mrs.   J. coincided with that before the police.   The Court also regarded as reliable the teacher's personal opinion that A. was telling the truth.   If the applicant and his wife claimed that one son, M., had heard A. stating that she was making up the whole story, the Court found this to be too vague to call in question A.'s statement.           Against this judgment the applicant filed with the Supreme Court (Oberster Gerichtshof) a plea of nullity (Nichtigkeitsbe- schwerde) and an appeal (Berufung).   In his plea of nullity, he complained, inter alia, that the Regional Court relied on police minutes.           On 20 March 1986 the Supreme Court dismissed the applicant's plea of nullity.   The Court found, inter alia, that S. 252 of the Code of Criminal Procedure compelled the previous court to read out the police minutes, as long as the applicant had the possibility, by means of his own statements and of requests for the taking of evidence, subsequently to weaken or even to contradict the evidence adduced, including the police minutes.   This had been the case in the proceedings at issue in view of the fact that the applicant's wife, Mrs.   J., and a medical expert had been heard at the trial, and an attempt had even been made to hear M.           On 10 April 1986, the Supreme Court also dismissed the applicant's appeal.   COMPLAINTS           The applicant complains under Article 6 paras. 1 and 3 (d) that he did not have a fair and public hearing and that he could not put questions to the witness incriminating him.   He submits in particular that the police minutes recording A.'s statements on 19 and 20 November 1984 constituted the principal evidence incriminating him.   Despite his objections these minutes were read out at the trial, after A. had availed herself of her right under S. 152 of the Code of Criminal Procedure not to give evidence.   Yet neither he nor his lawyer had been present when the police minutes were being prepared.           The applicant observes that in Austrian legal practice the accused or his representative are not as a rule present when in preliminary proceedings a witness is heard who could refuse to give evidence according to S. 152 of the Code of Criminal Procedure. Yet time and again the witness concerned later will indeed invoke this right.   In the applicant's submissions, the majority of legal writers in Austria share the view that such minutes should only be read out at the trial if they have been prepared in the framework of the same guarantees as the evidence reached during the trial.     THE LAW           The applicant submits that the main incriminating evidence employed by the Linz Regional Court for his conviction constituted the police minutes recording A.'s statements on 19 and 20 November 1984. He complains that contrary to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention the Court relied on these minutes although he could not put questions to the witness concerned.   As a result he also did not have a fair and public hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           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).   It follows that the Commission cannot examine for instance whether or not the testimony of the witness A. was credible.           It is true that the applicant also complains under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) that he did not have a fair and public hearing in that the Regional Court, when convicted him, relied on police minutes in respect of which he did not have the opportunity to put questions to the witness concerned.           As regards the conduct of the proceedings before the Regional Court, the Commission sees no indication that the applicant, who was assisted by a lawyer, could not present his case properly or that the proceedings were unfairly conducted by this Court.   Thus, at the trial the applicant was heard by the Court together with his wife, a teacher, and a medical expert.   When reaching its judgment the Regional Court examined both the exculpatory testimony of the applicant and his wife as well as the incriminating evidence.   In respect of A.'s statements, the Court considered in detail whether or not they were credible.   The Court concluded that the incriminating evidence concerning the applicant was sufficiently credible ant that the exculpatory evidence was not, and on this basis it convicted the applicant.           Insofar as the applicant complains that the Regional Court relied on police minutes in respect of which he could not put questions to the witness concerned, the Commission recalls that the reading out of statements at the trial, to which the judgment later has recourse, cannot in itself be regarded as being inconsistent with these provisions.   Nevertheless the use made of these statements must comply with the rights of the defence.   On the one hand, a person charged with a criminal offence must have the opportunity to examine or have examined witnesses against him, particularly if he has not had the opportunity at an earlier stage in the proceedings to question the persons whose statements are read out at the trial and later are relied upon in the judgment of the Court concerned (see Eur.   Court H.R., Unterpertinger judgment of 24 November 1986, Series A No. 110, p. 14f. para. 31).   On the other hand, Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d), which are aimed at securing in criminal proceedings equality between the defence and the prosecution, do not give an accused an unlimited right to obtain the appearance of, and to examine witnesses before court (see No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127).           In the present case the Commission notes that, at the trial before the Regional Court, A. did not give evidence as a witness.   The Court then relied in its judgment on police minutes recording A.'s statements before the police on 19 and 20 November 1984, without the applicant or his lawyer being present on those occasions.   Upon the applicant's plea of nullity, the Supreme Court held that the Regional Court had been obliged under S. 252 of the Code of Criminal Procedure to read out the police minutes at the trial.           In this respect, however, the applicant has not alleged before the Commission that he could not inform himself of the contents of the police minutes before the trial.   He has also not shown that he filed a request with the Court to put certain questions to the witness A.           Moreover, the Commission notes that the Regional Court did not rely exclusively for its conviction of the applicant on the statements made by A. before the police on 19 and 20 November 1984.   Thus, in its judgment of 30 September 1985 the Court took into consideration statements made by the applicant himself, before the investigating judge, in which he in fact admitted the offences.   The Court further relied on the testimony of the teacher, Mrs.   J., before the Court in whom A. had always had confidence, and whom at the trial the applicant was able to question.           Finally, the Commission considers that it was in the interest of the witness A. herself, a minor who was also the victim of the indecent act, to be spared the experience of being questioned at the trial about the occurences with her father, the applicant.           As a result, the Commission does not regard the recourse by the Regional Court to the police minutes, without the applicant having been able to put questions to A., as being inconsistent with Article 6 paras. 1 or 3 (d) (Art. 6-1, 6-3-d).   It follows that the above complaints do not disclose any appearance of a violation of the rights set out in Article 6 of the Convention.   The Commission concludes that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.       Deputy Secretary to the Commission         President of the Commission                   (J. RAYMOND)                          (C. A. NØRGAARD)