CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1989

.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. 12398/86                       by A.                       against Austria           The European Commission of Human Rights sitting in private on 10 July 1989, 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                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 22 August 1986 by A. against Austria and registered on 24 September 1986 under file No. 12398/86;           Having regard to:        -   the observations submitted by the respondent Government on         31 October 1988 and the observations in reply submitted         by the applicant on 5 December 1988;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows:           The applicant, an Austrian citizen born in 1934, is a wood dealer and farmer resident at Laaben in Austria.   Before the Commission he is represented by Dr. St. Gloss, a lawyer practising in St. Pölten.   I.   PARTICULAR CIRCUMSTANCES OF THE CASE           In the night of 5 to 6 July 1985 the applicant returned home at midnight whereupon a dispute arose with his life companion, Ms. J.L., who lived with him.   In the course of the dispute the applicant ordered J.L. to leave the house.   She then drove to her mother.           In the morning of 6 July 1985 J.L. visited a doctor who referred her on the same day to the St. Pölten hospital.   A notification of the doctor (Verletzungsanzeige) of 9 July 1985 stated that J.L. had multiple bruises and was suffering from a headache.   A report of the casualty department at the St. Pölten hospital issued on 11 July 1985 stated that J.L. had been maltreated with a belt, and a diagnosis showed that she had a bruise on her head and multiple bruises on her body ("contusio capitis, contusio multipl.").           In the evening of 6 July 1985 J.L. reported the incident of the previous night to the Brand-Laaben Police Station (Gendarmerie- posten).   According to the police minutes (Niederschrift) simultaneously prepared by one police officer B., J.L. alleged that, during the course of the verbal dispute with the applicant, he had said: "If you do not get out of here now, I shall wallop you" ("Wenn Du Dich jetzt nicht schleichst, dann wasche ich Dich").   In J.L.'s submissions, she did not comply.   He then beat her with a belt on the back, the arms and the legs.   Thereafter he fetched a gun and threatened to kill her.   She claimed that she knelt before him, urging him to reflect on what he was doing.   When he paused, she quickly left the house.           After J.L. had made this statement, the police officer at once informed the St. Pölten Public Prosecutor's Office (Staatsanwalt- schaft) by telephone of the occurrences.   The latter gave oral instructions not to arrest the applicant or to impound his gun.           Subsequently, the applicant and J.L. settled their differences.   On 7 July 1985 she moved back into his house.   On 10 July 1985 in the morning she requested the Brand-Laaben Police Station not to prosecute the applicant.           The applicant was questioned at the Brand-Laaben Police Station on 10 July 1985 in the evening.   He explained the events, whereby he denied having employed force or having threatened J.L. with a gun.   In the applicant's submissions, J.L. only had a scratch (Kratzer) on her back and had told him that she reported him to the police as she was so furious with him.           On 16 July 1985 the Brand-Laaben Police Station filed a criminal report (Strafanzeige) with the Neulengbach District Court (Bezirksgericht).   The report largely reiterated the statements of J.L. at the police station on 6 July 1985.   It included as annexes the general practitioner's notification of 9 July 1985, the report of the St.   Pölten Hospital of 11 July 1985, and the minutes of J.L.'s statements on 6 July 1985, as well as of the applicant's statements on 10 July 1985.           On 7 August 1985 the St.   Pölten Public Prosecutor's Office indicted the applicant before the St.   Pölten Regional Court (Kreisgericht) on the grounds of compulsion (Nötigung) and bodily injury (Körperverletzung).   It further requested the hearing at the trial of J.L. and the police officer B. as well as the reading out of the criminal report, of the extract from the criminal record and of the file of the applicant's previous convictions in accordance with S. 252 para. 2 of the Code of Criminal Procedure (Strafprozessordnung, see below RELEVANT DOMESTIC LAW AND PRACTICE).           The trial (Hauptverhandlung) took place on 15 November 1985. The applicant was heard first.   He stated that he was not guilty and that he had not injured J.L.   In his opinion J.L. had injured herself that night on a board at the end of the bed.           J.L. was then heard as a witness.   The Court informed her of S. 152 of the Code of Criminal Procedure (see below RELEVANT DOMESTIC LAW AND PRACTICE).   Thereupon, she stated that she would exercise her right to refuse to testify.   The police officer B. was also heard.           According to the trial minutes, no further requests were made by the parties.   The criminal report of 16 July 1985 and the minutes of the statement of J.L. before the police on 6 July 1985 were then read out in Court.   The Public Prosecutor's Office finally requested the Court to convict the applicant, whereas the latter requested to be acquitted.           In its ensuing judgment of 15 November 1985, the St.   Pölten Regional Court convicted the applicant of compulsion and bodily injury according to S. 105 and 83 of the Penal Code (Strafgesetzbuch), respectively, and sentenced him to 180 daily rates of 80.-AS or, alternatively, to 90 days' imprisonment.           In the reasons for its judgment the Regional Court relied on the statement of the accused, the testimony of the police officer B., as well as the police investigations (Gendarmerieerhebungen) and the annexed preliminary file (angeschlossener Vorakt).   The Court regarded it as proven that in the night of 5 to 6 July 1985 the applicant had threatened J.L. that if she did not leave he would beat her, that he then beat her, thus injuring her, and later fetched a gun and ordered her to leave.           The Court did not find sufficiently credible the applicant's denial that he had committed the offences.   The Court regarded J.L.'s statement at the police station as firm and credible, as confirmed by the police officer B., even if she did not testify at the trial and on 10 July 1985, requested the police no longer to prosecute the applicant.           The Court saw no ground to assume that J.L. had intended slanderously to incriminate the applicant.   In the Court's view, the case file also demonstrated that the applicant was by nature choleric and his conduct unpredictable.           The Court found it established with sufficient certainty for purposes of the criminal proceedings that the events had occurred in the manner explained by J.L. at the Police Station.           The applicant then filed an appeal (Berufung) in which he complained that the Regional Court had read out at the trial a document of the preliminary investigations (Vorerhebungsakt) which was null and void according to the law.   Although he had not been represented by a lawyer he had not been directed (angeleitet) by the Court to contest the document.   Neither he nor J.L. had been questioned (Vernehmung) by the Court.   The applicant also submitted that the Court should have obtained a medical expert opinion.           The appeal was dismissed on 19 March 1986 by the Vienna Court of Appeal (Oberlandesgericht).   In respect of the applicant's complaint concerning the reading out of the minutes of J.L.'s statement before the police station, the Court of Appeal stated that, if a witness did not testify, the Court concerned was obliged under S. 252 para. 2 of the Code of Criminal Procedure to read out and assess any statements made out of court.   This was constant case-law and the Court saw no reason to depart therefrom.   II.   RELEVANT DOMESTIC LAW AND PRACTICE           S. 152 of the Code of Criminal Procedure concerns exemptions from the obligation to testify at the hearing.   Para. 1 (1) states:   <German>   "1.      Von der Verbindlichkeit zur Ablegung eines Zeugnisses sind befreit:           (1)   Die Angehörigen des Beschuldigten (§ 72 StGB), wobei die durch eine Ehe begründete Eigenschaft einer Person als Angehöriger aufrecht bleibt, auch wenn die Ehe nicht mehr besteht."   <Translation>           "1.   There shall be exempted from the obligation to testify:           (1) the members of the accused's family (S. 72 of the Penal Code), and in this context a person who has become a family member by marriage retains this status even if the marriage no longer exists."           S. 72 para. 2 of the Penal Code considers as members of the family persons of different sex living together in an extramarital life community (aussereheliche Lebensgemeinschaft).           S. 252 of the Code of Criminal Procedure provides, insofar as it is relevant to the present case:   <German>   "...   2.       Augenscheins- und Befundaufnahmen, gegen den Angeklagten früher ergangene Straferkenntnisse sowie Urkunden und Schriftstücke anderer Art, die für die Sache von Bedeutung sind, müssen vorgelesen werden, wenn nicht beide Teile darauf verzichten.   3.       Nach jeder Vorlesung ist der Angeklagte zu befragen, ob er darüber etwas zu bemerken habe."   <Translation>   "...   2.       Reports on inspections and tests, previous criminal convictions of the defendant, as well as other types of documents and papers relevant to the matter must be read out unless both parties agree that they should not be read out.   3.       After each reading out, the accused must be asked whether he wishes to comment thereupon."   COMPLAINTS           The applicant complains of the reading out before the St. Pölten Regional Court of the minutes recording J.L.'s statement at the police station on 6 July 1985.   The applicant submits that the police station is not a court and that at the police station J.L. could say what she liked without risking prosecution.   The Regional Court nevertheless relied in its judgment on these minutes and convicted the applicant solely on the basis of a report.           The applicant further alleges that he was not allowed to put questions to J.L. at the trial, as she exercised her right to refuse to testify.   For the same reason, however, the minutes of her statement at the police station should also not have been read out.   The applicant submits that, if the Regional Court had not read out J.L.'s statement, it would have had to rely solely on the applicant's statement that he was innocent.           The applicant relies on Article 6 paras. 1 and 3 (d) of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 22 August 1986 and registered on 24 September 1986.           On 4 July 1988 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits pursuant to Rule 42 para. 2 (b) of its Rules of Procedure.           The respondent Government's observations were submitted on 31 October 1988 and the reply thereto by the applicant on 5 December 1988.   THE LAW           The applicant complains that J.L.'s statement at the police station on 6 July 1985 was read out before the St. Pölten Regional Court without him having had the opportunity of putting questions to J.L.   The applicant relies on Articles 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention which state, insofar as they are relevant:   "1.    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.   ...   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 Government refer to the judgment of the European Court of Human Rights in the Unterpertinger case according to which the reading out of minutes as a result of the refusal of a witness to testify does not in itself contradict Article 6 (Art. 6) of the Convention, as long as the rights of the defence are protected (judgment of 24 November 1986, Series A No. 110, p. 14-15 para. 31).   The Government submit that in practice the accused is prevented from putting questions to the   witness where the latter has died or cannot be found.   In the present case the St. Pölten Regional Court heard the police officer B. to whom   the applicant did not put questions.   The Court had no reason to doubt J.L.'s statements for which reason it did not take additional evidence ex officio.   Subsequently, its judgment was based on Mr B.'s testimony, and the police investigations, and the Court gave reasons why it was unable to accept the applicant's version.           The Government conclude therefrom that the applicant was not primarily convicted on the basis of a testimony in respect of which his defence rights were appreciably restricted.           The Commission considers that the applicant's complaints under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention raise complex issues of fact and law which can only be resolved by an examination of the merits. The application cannot, therefore, be declared manifestly ill-founded. No other grounds for inadmissibility have been established.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case.       Secretary to the Commission              President of the Commission               (H.C. KRÜGER)                           (C.A. NØRGAARD)