CEDH · CASELAW;REPORTS;ENG — 3 avril 1990

.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 }  Application No. 12398/86   Johann ASCH against   AUSTRIA   REPORT OF THE COMMISSION   (adopted on 3 April 1990)   TABLE OF CONTENTS                                                               Page     I.       INTRODUCTION         (paras. 1-12)   ....................................      1             A.       The application                 (paras. 2-4)   .............................      1           B.       The proceedings                 (paras. 5-7)   .............................      1           C.       The present Report                 (paras. 8-12)   ............................      2       II.      ESTABLISHMENT OF THE FACTS         (paras. 13-33)   ...................................      3             A.       The particular circumstances of the case                 (paras. 13-30)   ...........................      3           B.       Relevant domestic law                 (paras. 31-33)   ...........................      5       III.     OPINION OF THE COMMISSION         (paras. 34-50)   ...................................      7           A.       Point at issue                 (para. 34)   ...............................      7           B.       Compliance with Article 6 paras. 1 and 3 (d)                 of the Convention                 (paras. 35-49)   ...........................      7                   Conclusion                 (para. 50)   ...............................      9     DISSENTING OPINION OF MESSRS. C.A. NØRGAARD, G. SPERDUTI AND J.C. SOYER AND MRS. G.H. THUNE ........................     10   DISSENTING OPINION OF Mr.   F. MARTINEZ .....................     11   APPENDIX I:      HISTORY OF THE PROCEEDINGS   ...............     12     APPENDIX II:     DECISION ON THE ADMISSIBILITY   ............     13   I.     INTRODUCTION   1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicant, born in 1934, is an Austrian citizen residing at Laaben in Austria.   Before the Commission, he is represented by Mr. St. Gloss, a lawyer practising in St.   Pölten.           The application is directed against the Republic of Austria whose Government were represented by their Agent, Ambassador Helmut Türk, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   3.       The application relates to criminal proceedings instituted against the applicant on the ground of compulsion and bodily injury committed towards his life companion, Ms.   J.L.   In particular, the latter reported at the police station that the applicant had beaten her and threatened to kill her.   At the trial J.L. refused to give evidence.   Thereupon, the minutes of her statement made at the police station were read out in court.   The applicant was then convicted of compulsion and bodily injury.   4.       The applicant complains under Article 6 paras. 1 and 3 (d) of the Convention that he was convicted mainly on the basis of the statement of his life companion read out in court, although at the trial she did not give evidence and he could not put questions to her.   B.     The proceedings   5.       The application was introduced on 22 August 1986 and registered on 24 September 1986.           On 4 July 1988 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present their observations in writing on the admissibility and merits of the application.   The Government's observations were submitted on 31 October 1988 and the applicant's reply thereto on 5 December 1988.   6.       On 10 July 1989 the Commission declared the application admissible.   7.      After declaring the application admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 12 July and 3 October 1989.   In the light of the parties' reaction, the Commission now finds that there is no basis upon which a settlement can be effected.   C.       The present Report   8.       The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberation and votes, the following members being present:                MM.   C. A. NØRGAARD, President                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS                   L. LOUCAIDES   9.      The text of this Report was adopted on 3 April 1990 and is now transmitted to the Committee of Ministers of the Council of Europe in accordance with Article 31 para. 2 of the Convention.   10.     The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   11.       A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   12.       The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   13.      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.   14.      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 to the hospital by 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.").   15.      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 kneeled before him, urging him to reflect on what he was doing.   When he paused, she quickly left the house.   16.      After J.L. had made this statement, the police officer at once informed the St.   Pölten Public Prosecutor's Office (Staatsanwaltschaft) by telephone of the occurrences.   The latter gave oral instructions not to arrest the applicant or to impound his gun.   17.      Subsequently, the applicant and J.L. made up 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.   18.      The applicant was questioned at the Brand-Laaben Police Station on 10 July 1985 in the evening.   He explained the events, and 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 had reported him to the police as she was so furious with him.   19.      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 those of the applicant on 10 July 1985.   20.      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).   21.      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.   22.      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 give evidence.   The police officer B. was also heard.   He explained how J.L. had come to him to the police station and what she had told him.   23.      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.   24.      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.   25.      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 noted here the subsequent diagnosis of the doctor.   26.      The Court did not find sufficiently credible the applicant's denial that he had not 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.   27.      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.   28.      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.   29.      The applicant then filed an appeal (Berufung) in which he complained inter alia 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.   30.      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.   B.     Relevant domestic law   31.      S. 152 of the Criminal Procedure concerns exemptions from the obligation to testify at the hearing.   Para. (1) subpara. 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."   32.      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).   33.      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."   III.   OPINION OF THE COMMISSION   A.       Point at issue   34.      The issue to be determined is whether, in the criminal proceedings against the applicant, his rights of defence under Article 6 para. 3 (d) in conjunction with his right to a fair trial under Article 6 para. 1 (Art. 6-3-d+6-1) of the Convention were disregarded.   B.       Compliance with Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d)   35.      The applicant alleges a breach of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.   These provisions, insofar as they are relevant, state:   "1.    In the determination 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; ..."   36.      The applicant submits that he was convicted by the St.   Pölten Regional Court on the basis of a statement made by J.L. at the police station, which was read out at his trial.   He was not allowed to put questions to J.L.   As she exercised her right to refuse to give evidence the Court should not have had the minutes of her previous statement read out.   37.      The applicant submits that the police station is not a court and the police officer on duty was not a lawyer.   At the police station J.L. could state what she liked without risking prosecution. The Regional Court nevertheless relied in its judgment on the minutes of the statement of J.L. which it regarded as credible.   Had the Court not relied on J.L.'s statement, it would have had to rely on the applicant's statement according to which he was innocent.   38.      The Government refer to the Unterpertinger judgment of the European Court of Human Rights according to which the reading out of minutes as a result of the refusal of a witness to testify does not in itself contravene 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 an accused is prevented from putting questions to a witness who 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.   Its judgment was based on police officer B.'s testimony, and the police investigations, and the Court gave reasons why it was unable to accept the applicant's version.   39.      The Government conclude therefrom that the applicant was not convicted primarily on the basis of a testimony in respect of which his defence rights were appreciably restricted.   40.      The Commission considers that the guarantees contained in paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific aspects of the general concept of a fair trial set forth in paragraph 1 (Art. 6-1).   In the circumstances of the present case the Commission will therefore consider the applicant's complaints from the angle of paragraph 1 taken together with the principles inherent in paragraph 3 (d) (Art. 6-3-d) W. v. Austria, Comm. Report 12.7.89, para. 29).   41.      As a general rule it is for the national courts to assess the evidence before them as well as the evidence which the accused seeks to adduce.   However, the Convention organs must determine whether the proceedings considered as a whole, including the way in which evidence was taken, were fair as required by Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166, para. 39).   42.      The Commission further recalls that the reading out of statements at the trial, on which the judgment later is based cannot in itself be regarded as being inconsistent with Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.   Nevertheless the use made of such 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, loc. cit., p. 14-15 para. 31).   43.      On the other hand, the Commission has found in previous cases that 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 in court (see W. v. Austria, loc. cit. para.   32; No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127).   44.      In the present case the Commission notes that, at the trial before the St.   Pölten Regional Court, J.L. exercised her right under S. 152 of the Code of Criminal Procedure to refuse to give evidence. Thereupon, the minutes of her statement made at the police station on 6 July 1985 were read out.   In its judgment, the Court found it established with sufficient certainty that the events had occurred in the manner explained at the police station by J.L. whose statement the Court found sufficiently firm and credible.   45.      Ms.   J.L., by exercising her right not to give evidence, prevented the applicant from examining her or having her examined on her statements at the trial.   46.      It is true that the applicant was able to submit his own comments freely at the trial and that J.L.'s statement was not the only evidence before the Court.   The latter also had before it the applicant's statement, the police investigations and the annexed preliminary file, which included the criminal report and the notification by the doctor, as well as the evidence given by police officer B. as a witness at the trial.   47.      However, it is clear from the judgment of 15 November 1985 that the Regional Court based the applicant's conviction mainly on the statement made by J.L. to the police.   The Court did not treat this statement simply as an item of information but as proof of the truth of the accusation made by J.L. at the time.   In referring to the evidence of police officer B. and to the investigations made by the police, the Court was again in substance relying on J.L.'s statement, since this evidence reiterated to a large extent what J.L. had stated at the police station.   48.      As a result, the Commission considers that, while it was for the Regional Court to assess the material before it, the applicant was nevertheless convicted on the basis of "testimony" in respect of which his defence rights were appreciably restricted (see Eur. Court H.R. Unterpertinger judgment, loc. cit., p. 15 para. 33).   49.      In these circumstances the Commission finds that the applicant's right to a fair trial, in particular his right to examine or have examined witnesses against him, was not respected.   C.       Conclusion   50.      The Commission concludes, by 12 votes to 5, that there has been a violation of paragraph 1, read in conjunction with paragraph 3 (d), of Article 6 (Art. 6-1+6-3-d) of the Convention.       Secretary to the Commission              President of the Commission                (H.C. KRÜGER)                           (C.A. NØRGAARD)     Dissenting opinion by Messrs.   C.A. Nørgaard, G. Sperduti and J.C. Soyer and Mrs.   G.H. Thune           We agree with the Commission's approach that its decision in the present case must be based on the case-law as laid down by the European Court of Human Rights in the Unterpertinger case.           There are admittedly many similarities between the Unterpertinger case and the present case.   It is therefore tempting to conclude that the applicant was ... convicted on the basis of "testimony" in respect of which the defence rights were appreciably restricted and consequently to find a violation of Article 6 para. 1 read in conjunction with Article 6 para. 3 (d) of the Convention.           In our opinion however the cases can be distinguished in several respects.   The main difference is the following:   In the Unterpertinger case the decision was based mainly on the "testimony" given by Mrs.   Unterpertinger and her daughter to the police concerning violent family quarrels.   It was not contested that such quarrels had taken place.   However it was most important to determine whether Mr.   Unterpertinger had acted in self-defence or not.   In deciding this question medical certificates were of little use whereas the "testimony" of Mrs.   Unterpertinger and her daughter and the possibility of cross-examining them in court would have been of crucial importance in establishing the relevant facts.           In the present case the applicant denies using force against J.L.   In finding that the applicant had used force against her, the court did not have to rely solely on J.L.'s "testimony" to the police but had before it two medical certificates which, although not conclusive, strongly supported J.L.'s allegations that force had been used against her.   They were thus of great importance for the establishment of the facts of this case.           In these circumstances we find that the present case can be distinguished from the Unterpertinger case.   We find it difficult to accept the conclusion that the applicant's conviction was based mainly on the statements made by J.L. to the police.           Consequently and to our regret we have not been able to share the opinion of the Commission and have thus voted for no violation of Article 6 para. 1 read in conjunction with Article 6 para. 3 (d).   Opinion dissidente de M. Martinez           A mon regret, je m'écarte de la majorité de la Commission car je n'arrive pas à voir en l'espèce une violation de l'article 6 de la Convention.           Je pourrais accepter les termes du rapport de la Commission jusqu'au paragraphe 46 inclus.   Mais je dois montrer mon désaccord pour le reste.           A mon avis il n'est pas exact de dire que le jugement du tribunal régional en date du 15 novembre 1985 a fondé la culpabilité du requérant sur les déclarations de J.L. à la police.   Je vois que le tribunal, appelé à confronter deux versions, celle de la victime et celle du requérant, a eu recours à d'autres éléments produits lors du procès et a trouvé digne de foi la première version, et non la seconde.   Parmi ces autres éléments se trouvent les traces sur le corps de la victime constatées par un médecin que celle-ci a consulté peu après l'événement, le rapport de l'hôpital de St.   Pölten et la déclaration de l'officier de police B. qui avait reçu la victime le lendemain.           La victime n'a pas pu être interrogée à l'audience, s'étant prévalue de l'article 152 du Code de procédure criminelle ; elle a fait des déclarations au policier B., que le requérant aurait pu mais n'a pas voulu faire interroger.   Les documents et rapport, y compris la déclaration de la victime devant la police, ont été lus à l'audience conformément à l'article 252 du Code de procédure criminelle et rien n'empêchait le requérant de faire des observations à leur sujet.           Dans ces conditions, on ne saurait dire que le tribunal a formé sa conviction de façon arbitraire ou que les droits de la défense n'ont pas été respectés selon les exigences de la Cour européenne des Droits de l'Homme énoncées dans son arrêt Unterpertinger.           Trouver ici une violation de l'article 6 de la Convention équivaut à dire que le juge national n'aurait pas dû déclarer le requérant coupable au vu des éléments qu'il a appréciés dans les limites de son pouvoir souverain.   Autrement dit, je crains que la Commission n'ait empiété ici sur le rôle des juridictions internes.   APPENDIX I   HISTORY OF PROCEEDINGS     Date                     Item   __________________________________________________________________     22 August 1986           Introduction of the application   24 September 1986        Registration of the application     Examination of admissibility   4 July 1988              Commission's decision to invite the                         Government to submit observations on                         the admissibility and merits of the                         application   31 October 1988          Government's observations   5 December 1988          Applicant's observations in reply   10 July 1989             Commission's decision to declare the                         application partly admissible     Examination of the merits   16 October 1989          Applicant's supplementary observations   9 December 1989          Commission's consideration of the state                         of proceedings   3 April 1990             Commission's deliberations on the merits                         and final vote and adoption of the Report