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. 12463/86                       by Mehmet SEN                       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                   G. SPERDUTI                   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 9 October 1986 by Mehmet SEN against Austria and registered on 17 October 1986 under file No. 12463/86;           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, a Turkish citizen born in 1948, is a labourer resident at Rankweil in Austria.   Before the Commission he is represented by Dr.   W.L. Weh, a lawyer practising in Bregenz.           The facts submitted by the applicant may be summarized as follows:   I           In the evening of 20 October 1984, a number of persons, among them the applicant, were at the A.-Restaurant in Bregenz, a locality frequented mainly by Turkish citizens.   At closing time after about 1 am on 21 October 1984, some persons were standing outside the restaurant.   Some shots were fired.   Thereafter, the applicant and two other persons, S.E. and A.Si, got into a car and drove off.           In the morning of 21 October 1984, one of the two managers of the restaurant, N.I., found bullet shells in front of the restaurant. He reported this to the police.   As a political motive could not be excluded, the investigations were handed over to the Vorarlberg Police Direction (Sicherheitsdirektion).           Various persons were questioned by the Bregenz police, whereby their statements were recorded as minutes (Niederschrift).   Thus, N.I. stated on 3 December 1984 that he had been present when on 21 October 1984 at 2 am, among a group of about 20 persons, a man fired some shots. N.I. noticed how A.Sö. apparently pushed this man into the car.   When he asked A.Sö. what was happening, he was told to mind his own business.           Also on 3 December 1984, K.I., the son of the other manager, told the police that he had been in the restaurant and had not seen the goings-on, though he had heard that this person had been sitting at the same table as A.Sö.           On 4 December 1984, A.Sö. stated before the Bregenz police that he had been present when a person unknown to him fired three or four shots sideways into the ground.   However, he was able to describe to the police the features of the person concerned.   He, A.Sö., had been sitting with this person at the same table in the restaurant during the evening.   A.Sö. also explained that it was customary in certain parts of Turkey to fire shots after a festive occasion.           Also on 4 December 1984, S.E. and A.Si. told the police that they had not been able to see who had fired the shots.   Both had then got into a car and driven off together with the applicant.           The applicant explained on 4 December 1984 to the police that he had not heard any shots while being in the restaurant, and that after leaving the locality he had driven away in a car.           On 12 December 1984 A.Sö. made a further statement before the Rankweil police.   He stated that at the Rankweil police station he had been confronted with a man, apparently the applicant.   He recognised this man without doubt as being the person who had fired the shots at 1 am on 21 October 1984 and with whom he had previously been sitting at the table in the restaurant.           On 12 December 1984 the Vorarlberg Police Direction filed with the Bregenz District Court (Bezirksgericht) a criminal report (Straf- anzeige) according to which the applicant was urgently suspected of having fired four shots among a group of people, without a licence and without any particular purpose.   The Report reiterated various statements made before the police.   It noted that A.Sö. had identified with certainty the applicant as the person who had fired the shots. The Report also stated that S.E. and A.Si. were urgently suspected of having given false testimony before the police in order to protect the applicant.           S.E. and A.Si. were later acquitted of these charges.   However, on 11 March 1985 the Bregenz District Court issued a Criminal Order (Strafverfügung) in which it convicted the applicant of the offence of having unlawfully possessed and carried a handgun (Faustfeuerwaffe), and sentenced him to 30 daily rates of 150.-AS or, alternatively, to 15 days' imprisonment.   II           The applicant filed an objection (Einspruch) against the Criminal Order of 11 March 1985, thus initiating oral proceedings.           His trial opened before the Bregenz District Court on 23 April 1985.   The applicant who was assisted by an interpreter was heard first.   He stated that when the events had happened on 21 October 1984 he had been so strongly under the influence of alcohol that he would not have been able to hold a handgun in his hand.           S.E. and A.Si. were then heard as witnesses.   They stated that they were unaware of who had fired the shots.   N.I. stated that he was seeing the applicant for the first time at the hearing.           The proceedings were then adjourned, inter alia, in order to obtain the address of A.Sö.           At a further hearing on 22 July 1985, K.I. stated that as he had been in the restaurant he was unaware of the person who had fired the shots.   A.Sö. was then heard as a witness.   He stated that he was able to understand colloquial German, but not special expressions such as "doubtless" ("zweifelsfrei").   In his testimony he altered his previous statements before the police to the extent that he was now no longer sure whether or not the applicant had been the person firing the shots, as he had only seen the person concerned from the back. Moreover, he had not been sitting with the applicant at the same table.   As to the confrontation with the applicant, A.Sö. stated that on that occasion he had been sitting in a police car.   A man, possibly the applicant, was sitting in a van, about 30 metres away.   This man was requested to get out of the van, walk to the police station, and back again to the van.   In A.Sö.'s recollection this man looked similar to the man who had fired the shot.           The proceedings were then adjourned, inter alia, to hear the police officers who had originally questioned the various witnesses.           A further hearing took place on 22 October 1985.   A.Sö. was heard again.   He declared that his statement before the police was incomplete as no interpreter had then been present.   The two police officers were then heard.   One officer, who was also questioned by the applicant's lawyer, stated that he had not had any language difficulties when questioning A.Sö., either on 4 or on 12 December 1984 and an interpreter had therefore been regarded as unnecessary.   The other officer also stated that there had been no difficulties in communicating with A.Sö.   Later, when sitting in the police car, A.Sö. had definitely identified the applicant as the person concerned.   He, the police officer, had specially instructed A.Sö. to look closely at the person, whereupon A.Sö. had repeated his statement.           On 22 October 1985 the Bregenz District Court convicted the applicant of having unlawfully possessed and carried a handgun and sentenced him to 30 daily rates at 120.-AS or, alternatively, to 15 days' imprisonment.           The Court considered that A.Sö. had been manager of the A.-restaurant from 1982-1984, and that his grasp of the German language was correspondingly good.   The statements of the two police officers also clearly disproved A.Sö.'s testimony before the Court concerning his knowledge of German.   The Court found that the testimony of N.I. and in particular A.Sö. made it clear that the applicant, who at that time had probably been slightly under the influence of alcohol, had fired the shots.   A.Sö. had in fact on two occasions, on 4 and 12 December 1984, incriminated the applicant, on 4 December by stating that the latter had been sitting with him at the same table and on 12 December by identifying him.   Later, at the hearings of 22 July 1985 and 22 October 1985, A.Sö. had modified his statement by explaining that on the evening in question he had not sat at the same table as the applicant and had only from the back seen the man firing the shots.   III           The applicant filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung).   Thereby he relied on S. 281 para. 4 of the Austrian Code of Criminal Procedure (Strafprozessordnung).   According to this provision, a plea of nullity may be filed, if during the trial, and contrary to the application of the person concerned, an interim decision (Zwischenerkenntnis) is handed down which disregards or interprets incorrectly, inter alia, a law, the observance of which would be required in a procedure securing the rights of the defence.           The applicant submitted in his plea of nullity that the District Court had disregarded such a law, namely Article 6 of the Convention, inasmuch as A.Sö. had been questioned by the police without an interpreter being present.   The applicant submitted further that no witness at the trial had incriminated him.   The Court had had to rely for its decision on the police minutes of A.Sö.'s statement. Yet, when A.Sö. had been questioned, before the police, the applicant had not been able to put questions.   In his appeal, the applicant requested a conditional sentence.           After a further hearing, the Feldkirch Regional Court (Landesgericht) on 9 April 1986 suspended the applicant's sentence on probation.   The remainder of his appeal and his plea of nullity were dismissed.           The Regional Court found that a plea of nullity according to S. 281 para. 1 (4) required an application of the person concerned as well as an interim decision of the Court during the trial.   In the present case such an interim decision had not been given.   The Court therefore decided to examine the applicant's plea of nullity under S. 281 para. 1 (3) of the Code of Criminal Procedure, which provision permits such a remedy if during the trial a legal provision has been disregarded, the compliance with which the law orders under a threat of nullity.   The Court found that Article 6 of the Convention did not extend para. 1 (3) of S. 281.   The Regional Court finally considered that the District Court had been obliged, under S. 252 para. 2 of the Code of Criminal Procedure, to read out the police minutes and that its assessment of the evidence could not be reproached.     COMPLAINTS           The applicant now complains under Article 6 of the Convention that before the Austrian Courts concerned not one element of proof was adduced which would have incriminated him in a concrete manner.   Not one witness identified before the Courts the applicant as the person who had fired the shots.   The applicant thus claims that the proceedings were not fair in that the District Court had to rely for its judgment on police minutes recording a statement of A.Sö. before the police which he later retracted.   Yet A.Sö. had been questioned by the police without an interpreter being present.   It was possible therefore that the minutes were wrong.   Before the District Court, when an interpreter was present, A.Sö. no longer identified the applicant as the person concerned.   This testimony should therefore be regarded as the more credible one.   It was arbitrary (unsachlich) that the District Court regarded A.Sö.'s statement before the Court as wrong and yet did not prosecute him.   On the other hand, the two police officers heard before the District Court were merely giving hear-say evidence.           The applicant sees a further breach of Article 6 of the Convention in that the Court of Appeal decided to examine under S. 282 para. 1 (3) of the Code of Criminal Procedure his plea of nullity complaints rather than under (4) of that provision, and that the Court did not find Article 6 of the Convention relevant for his plea of nullity.   THE LAW           The applicant complains that he was convicted by the District Court although not one witness identified him before that Court as the person who had fired the shots.   He also complains that he did not have a fair trial within the meaning of Article 6 (Art. 6) 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 of 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. 485/59, 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 in the present case the Commission cannot examine for instance whether or not the testimony of the witnesses was credible.           It is true that the applicant also complains under Article 6 (Art. 6) of the Convention that the District Court had to rely for its judgment on police minutes recording a statement of A.Sö.   Yet when the latter had made his statement before the police an interpreter had not been present.   The applicant also complains that the Regional Court decided to examine his plea of nullity complaint under S. 282 para. 1 (3) instead of (4) of the Code of Criminal Procedure and that the Court found Article 6 (Art. 6) of the Convention irrelevant.           As regards the court proceedings in general, the Commission sees no indication that the applicant who was represented by a lawyer could not present his case properly before the District Court or the Regional Court, or that the proceedings were improperly conducted by these Courts.   Thus, at the trial the applicant was heard by the District Court together with a number of witnesses.   Throughout the trial an interpreter was present.   When reaching its judgment the District Court considered both the incriminating and exculpatory testimony of various witnesses.   The Court thereby regarded the incriminating evidence concerning the applicant as sufficiently credible and it based its conviction thereupon, whereby it considered that the grasp of the witness concerned of the German language was good.           The applicant has also complained of the recourse by the District Court to the police minutes when reaching its judgment.   The Commission has examined this complaint under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.   It 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.   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).           In the present case the Commission notes that the District Court relied in its judgment of 22 October 1985 on the statements made by N.I. and A.Sö. before the police.   Upon the applicant's plea of nullity, the Regional Court held that the District 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.   Moreover, the Commission observes that in particular the witnesses N.I. and A.Sö. appeared at the trial and that the applicant had the opportunity to question them.   It follows that the recourse by the District Court to the police minutes cannot be regarded as being inconsistent with Article 6 para. 1 or 3 (d) (Art. 6-1, 6-3-d) of the Convention.           Insofar as the applicant complains that the Regional Court decided to examine his plea of nullity under S. 282 para. 1 (3) instead of (4) of the Code of Criminal Procedure, and that the Court did not consider Article 6 (Art. 6) of the Convention as relevant in this context, the Commission recalls that Article 6 para. 1 (Art. 6-1) does not prevent the High Contracting Parties from regulating the manner in which the public shall have access to courts in order to ensure the proper administration of justice (see No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107).   In the present case the Commission notes that the Regional Court decided that the conditions under S. 281 para. 1 (4) were not met and then proceeded to examine the applicant's plea of nullity under para. 1 (3).   Nevertheless, the Commission observes that in fact the Regional Court examined in substance the applicant's complaints concerning in particular the recourse by the District Court to the police minutes.   Thereby the Regional Court concluded that the District Court had been obliged to read out the police minutes and that its assessment of the evidence could not be reproached.           As a result, the above complaints do not disclose any appearance of a violation of the rights set out in Article 6 (Art. 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)