CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 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. 12975/87                       by O.                       against Austria             The European Commission of Human Rights sitting in private on 11 October 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   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 10 March 1987 by O. against Austria and registered on 9 June 1987 under file No. 12975/87;           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 applicant is an Austrian citizen, born in 1925 and living in S. im S.   He is represented by Mr.   S. Gloss, a lawyer in Pölten.           On 7 April 1986 the applicant was convicted by the District Court (Kreisgericht) in Krems of having given false evidence (falsche Beweisaussage).   He was sentenced to seven months' imprisonment.           According to the findings of the Court the applicant had requested a construction firm to submit an offer for the construction of a well.   The detailed offer contained various single positions, the total of which amounted to AS 100,000.   After receipt of the written offer, the parties met for further negotiations between the manager L. of the construction firm, the applicant and his two sons.   The applicant succeeded in obtaining reductions in respect of several positions listed in the offer.   In particular, position no. 1 concerning the transport of machines needed for the construction work was reduced by AS 10,000 while position no. 4 concerning the drilling was dropped because the soil was not hard.   Subsequently and contrary to the result of the negotiation in the applicant's apartment, the applicant noted on L.'s offer: "Lump sum without VAT of AS 60,000 agreed for completed well".           As the lump sum agreement was contested by L., his company brought a civil action against the applicant.   His son, Helmut, was heard as witness and confirmed his father's version that a lump sum of AS 60,000 had been agreed upon.   Thereupon criminal proceedings were instituted against Helmut O. and he was convicted and sentenced for having given false evidence.   His appeal was rejected by the Vienna Court of Appeal (Oberlandesgericht) on 24 January 1983.   In the criminal proceedings against Helmut O. his father, the applicant, was heard as witness on 22 March 1982 by the Krems District Court and also stated that a lump sum of AS 60,000 had been agreed upon.   On the other hand, witness L. stated in these criminal proceedings, as in the previous civil proceedings, that no lump sum had been agreed upon.           In the criminal proceedings against the applicant the Krems District Court relied on the previous statements made by L. as witness in the criminal proceedings against the applicant's son and as a plaintiff in the civil proceedings against the applicant.   These statements were read out at the trial.   The Court considered that a hearing of L. was excluded for medical reasons as he had only been released from hospital on 3 March 1986 i.e. one month before the hearing, having had cardiac treatment after repeated heart attacks, and as his doctor had told the Court that, in a stress situation, L. strongly risked a relapse.   In these circumstances the Court rejected the applicant's request to obtain an expert opinion on the question of whether L.'s physical condition rendered him unfit to appear in court permanently or only temporarily.   The Court stated that, in view of the fact that L. had had heart attacks in 1979, in November 1985 and two further ones in February 1986, no particular medical knowledge was needed to assume that an improvement of L.'s physical condition was not to be expected.   The District Court judge also pointed out that he had himself heard witness L. in the previous proceedings and therefore had had the opportunity to form a personal opinion on the question of whether or not his statements were credible.   Therefore a new hearing of this witness was not absolutely necessary.   The court added that meanwhile five years had elapsed and it was likely that L.'s recollection of the events had faded.   The court considered L.'s previous statements to be trustworthy as he had described how the agreement between the parties was reached in a convincing and credible manner, pointing out that the written offer had been the basis of the discussions.   The court noted that the annotations on the written offer showed that the different positions had been discussed and reductions in respect of some of them were effected, while the applicant's note about a lump sum agreement on the last page of the offer was not countersigned by L., although it was in the applicant's interest to have this alleged result of the negotiations confirmed by the other party in order to exclude any eventual contestation.           Finally the court considered that L. had no interest whatsoever in accepting a price reduction of 30% which, economically, would have been unreasonable.           Insofar as the applicant had submitted that L.'s construction firm repeatedly brought civil actions claiming prices referred to in written offers although later another price was agreed upon, the Court noted that, apart from the proceedings against the applicant, no other proceedings had been brought by L. during the relevant time, i.e. between 1975 and 1980.   Certain actions were brought by L.'s firm as from 1983 onwards.   However L. suffered his first heart attack in 1979 and was subsequently no longer fully active in his firm.   Therefore the fact that certain civil actions were brought by L.'s firm as from 1983 in no way proved the applicant's allegations.   The court furthermore rejected the applicant's request to hear L.'s wife and his son as witnesses as they had not assisted in the oral negotiations between L. and the applicant.           The applicant's appeal (Berufung) was rejected on 18 September 1986 by the Vienna Court of Appeal (Oberlandesgericht). The appellate court considered that the trial court had good reasons to read out L.'s statements as his medical history clearly showed that his heart condition was not likely to improve.   However, the appellate court mitigated the sentence and imposed a fine of 200 day rates of AS 800, to be replaced by 100 days' imprisonment in case of default of payment.           The Attorney General's Office (Generalprokuratur) then lodged a plea of nullity for safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) following the applicant's request (Anregung), pointing out that the applicant's conviction was mainly based on the statements made by L. in previous proceedings, statements which had been read out at the applicant's trial despite his objections. Therefore the trial court, so it was argued, had reason to take all evidence suggested by the defence to show that L.'s statement was not trustworthy.           The plea of nullity was rejected by the Supreme Court (Oberster Gerichtshof) on 21 December 1987.   This decision was not submitted by the applicant.   COMPLAINTS           The applicant considers that he was wrongly convicted and alleges a violation of Article 6 paras. 1 and 3 (d) of the Convention because he had no possibility of putting questions to L. whose statements given in other proceedings incriminated him.   He considers that the trial court wrongly relied on the report given on the telephone by L.'s doctor instead of obtaining an official expert opinion on the question whether or not L. was permanently or only provisionally unfit to give evidence in court.     THE LAW           The applicant has complained that he was wrongly convicted and sentenced on 7 April 1986 by the District Court in Krems and also of the court proceedings concerned, alleging violations of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) 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 established 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 is true that in this case the applicant also complains that his conviction was mainly based on statements read out at his trial and made by a certain L. in previous proceedings, namely in civil proceedings between the applicant and L.'s company and in criminal proceedings against the applicant's son Helmut.           It is true that the European Court of Human Rights held in the Unterpertinger Case (judgment of 24 November 1986, Series A no. 110, p. 13-15, paras. 28-33) that the applicant in that case did not have a fair trial because he was convicted mainly on the basis of "testimony" in respect of which his defence rights were appreciably restricted.   In fact Mr.   Unterpertinger had been convicted mainly on account of statements made against him to the police by close relatives in the course of the investigation proceedings.   At the trial they availed themselves of their right to refuse to give evidence but their earlier statements were read out at the hearing.   The defendant was thus deprived of the right to examine them or have them examined on their statements as he did not have an opportunity at any stage in the earlier proceedings to question the persons whose statements were read out at the hearing.           Whilst in a situation as in the present case it is, in principle, of particular importance that the accused has an opportunity to question the only witness who contradicts his own allegedly false evidence, the Commission notes that L. had already given evidence in the civil proceedings which had been instituted by his firm against the applicant.   On that occasion the applicant had an opportunity to question L.'s statements.   Furthermore, both L. and the applicant gave evidence in the criminal proceedings against the applicant's son, who was accused and convicted of having given the same false evidence as his father.   As the applicant's interest ran entirely parallel with that of his son, the District Court could reasonably assume that all arguments which the applicant could raise against the statement of L. were brought forward, if not in the cited proceedings, then in the criminal proceedings against the applicant's son.           The Commission furthermore notes that the trial court judge pointed out in the judgment of 7 April 1986 convicting the applicant that as a judge he had also participated in the earlier proceedings and consequently had had an opportunity to form an opinion on L.'s credibility when L. was heard in these previous proceedings.            The Commission finally notes that, according to the trial court's findings, L.'s statement was confirmed by the fact that the applicant did not have his handwritten note on L.'s offer countersigned by L. confirming that, contrary to the offer, a lump sum payment of AS 60,000 had been agreed upon.            As the Court has pointed out in the above-mentioned Unterpertinger judgment (loc. cit., p. 14 para. 31) the reading-out of statements cannot be regarded as being in itself inconsistent with Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) and in view of the particular circumstances of the present case the Commission cannot find that the rights of the defence were not complied with, taking into account that the applicant did have an opportunity in earlier proceedings to have questions put to the person whose statements were read out at the hearing in the criminal proceedings against him and that furthermore his conviction was also based on documentary evidence.           It follows 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.            Secretary to the Commission           President of the Commission                   (H.C. KRÜGER)                         (C.A. NØRGAARD)