CEDH · CASELAW;REPORTS;ENG — 8 janvier 1991

.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. 13161/87   Josef ARTNER   against   AUSTRIA   REPORT OF THE COMMISSION   (adopted on 8 January 1991)   TABLE OF CONTENTS                                                                Page   I.       INTRODUCTION         (paras. 1 - 14) ......................................     1           A.       The application                 (paras. 2 - 5) ...............................     1           B.       The proceedings                 (paras. 6 - 9) ...............................     1           C.       The present Report                 (paras. 10 - 14) .............................     2     II.      ESTABLISHMENT OF THE FACTS         (paras. 15 - 24) .....................................     3           A.       The particular circumstances of the case                 (paras. 15 - 24) .............................     3           B.       Relevant domestic law                 (para. 24) ...................................     5   III.     OPINION OF THE COMMISSION         (paras. 25 - 39) .....................................     6           A.       Complaint declared admissible                 (para. 25) ...................................     6           B.       Point at issue                 (para. 26) ...................................     6           C.       Compliance with Article 6 paras. 1 and 3 (d)                 of the Convention                 (paras. 27 - 38) .............................     6           D.       Conclusion                 (para. 39) ...................................     8           Dissenting opinion by Mr.   Trechsel,         joined by MM. Busuttil, Gözübüyük, Weitzel,         Sir Basil Hall and Mr.   Rozakis .......................     9   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ................    10   APPENDIX II      :   DECISION ON THE ADMISSIBILITY .............    11   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, Josef Artner, is an Austrian citizen, born in 1953.   In the proceedings before the Commission he is represented by Mr.   Franz X. Gugg, a lawyer practising in Vienna.   3.       The application is directed against Austria.   The respondent Government are represented by their Agent, Ambassador Helmut Türk, of the Federal Ministry of Foreign Affairs.   4.       The applicant's conviction on a charge of usury was based on evidence given in pretrial proceedings in the absence of the applicant and his defence counsel by the alleged victim whose statement was later read out at the trial because at that time her whereabouts were unknown.    The applicant complains that the defence had no opportunity to challenge the evidence.   He considers that Article 6 paras. 1 and 3 (d) of the Convention were violated.   B.       The proceedings   5.       The application was introduced on 6 July 1987 and registered on 21 August 1987.   6.       On 9 May 1989 the Commission decided to give notice of the application to the respondent Government and to invite them to submit observations in writing on the admissibility and merits of the application.   The Government submitted their observations on 21 September 1989 and on 13 October 1989 the applicant's lawyer submitted observations in reply.   7.       On 5 March 1990 the Commission declared the application admissible.   8.       The parties were then invited to submit, if they so wished, further observations on the merits of the application.   The applicant submitted supplementary observations on 17 April 1990 and the Government on 28 July 1990.   9.       After declaring the case 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.   In the light of the parties' reaction the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   10.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations 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. DANELIUS              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ   11.      The text of this Report was adopted on 8 January 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   12.      The purpose of the Report, pursuant to Article 31 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.   13.      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.   14.      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   15.      On 16 December 1986 the applicant was convicted by the Vienna Regional Court (Landesgericht) of two counts of usury (Geldwucher), of partly completed and partly attempted aggravated fraud (schwerer Betrug), of breach of trust (Veruntreuung) and of aggravated theft (schwerer Diebstahl).   He was sentenced to three years' imprisonment.   The applicant had previously been convicted eight times of similar charges.   16.      The conviction of usury in one case was based on the following findings:   in the summer of 1982 the applicant advertised in newspapers that he could procure loans.   He was contacted by Miss L., who was twenty years old and in financial difficulties.   As she could offer no guarantees, the applicant proposed that she take out a loan together with a third person who, at the same time, would act as guarantor.   L. accepted and on 24 August 1982 the applicant, L. and one S., a Yugoslav allegedly unknown to the applicant, contacted a credit institute.   S. and L. applied for and obtained as joint debtors a loan of 60,000 AS.   The money was paid out immediately.   L. received 20,000 AS, S. received 30,000 AS and the applicant 10,000 AS.   S. later disappeared, while L. was liable for the reimbursement of 60,000 AS. The Court considered that the commission of 10,000 AS received by the applicant was disproportionate to the loan received by L., namely 20,000 AS, and that the applicant had misused L.'s inexperience and rashness.    These findings were based on statements made by L. before the investigating judge and read out at the trial and on documentary evidence submitted by L. in connection with the charges she had, with the assistance of a lawyer, previously laid against the applicant.   17.      In preparation of the trial, the applicant's defence counsel had, on 12 November 1986, requested to hear certain witnesses.   Inter alia, he suggested in respect of the charges laid by L. to hear a representative of the credit institute supposed to confirm his allegation that L. during several months reimbursed the loan without complaining but later she was apparently informed by the credit institute of the "well known practices of credit mediators" which, as the defence put it, might have given certain ideas to her (motivierend wirkte).   He did not request that the two alleged victims of the usury charges be heard as witnesses but denied having requested and received a commission in the amount indicated by them.   Meanwhile L. had been summonsed to give evidence at the trial as witness for the prosecution.   When the summons was returned with the mention that L. had moved and her new whereabouts were unkown the trial court requested the Central Registry of the Vienna Federal Police Directorate on 28 October 1986 to indicate whether L. was registered under a new address.   A new address was in fact obtained and L. was summoned under this address.   18.      However, L. did not appear at the trial of 21 November 1986. The applicant denied the respective charges and was not prepared to renounce the hearing of this witness.   The trial was adjourned until 16 December 1986 and the police were ordered to see to it that L. attend the new hearing but her whereabouts could not ascertained.   The applicant was so informed at the beginning of the hearing of 16 December 1986.   It does not appear from the record (Verhandlungs- protokoll) of this hearing that the applicant's defence insisted on hearing this witness at the trial.   It is only stated in the record that at the end of the hearing defence counsel maintained all motions for the taking of evidence which had previously been rejected (Verteidiger wiederholt die abgewiesenen Beweisanträge).   The evidence given by L. before the investigating judge was read out.   Counsel for the applicant requested a moderate sentence.   19.      The Regional Court considered L.'s statement made before the investigating judge to be credible although initially she had said that the money had been handed over to the applicant while later she said it was given to S. who distributed it.   This slight contradiction was considered to be irrelevant as uncontestedly all the three had been together at the credit institute and the money had been paid out to them.   20.      The Court also noted (at p. 12 of the judgment) that the applicant's conduct as described by L. was very similar to the description given by the victim in the other case and observed that the two victims did not know each other.   The other usury offence concerned a loan of 40,000 AS with regard to which the applicant had claimed and obtained a commission of approximately 15,000 AS, according to the evidence given by that victim at the trial, which the trial court found credible.   21.      The applicant's appeal (Berufung) and plea of nullity (Nichtigkeitsbeschwerde) were rejected by the Supreme Court (Oberster Gerichtshof) on 26 May 1987 insofar as they related to the conviction of the two counts of usury.   22.      In respect of the applicant's complaint that he was wrongly convicted on the basis of L.'s statements made before the investigating judge, as read out at the trial, the Supreme Court pointed out that, contrary to the applicant's allegations, efforts had been undertaken to find witness L. but the result had been negative. Furthermore the applicant had himself not requested to hear witness L. As it had been impossible to ascertain L.'s whereabouts Sec. 252 para. 1 No. 1 of the Code of Criminal Procedure (Strafprozessordnung) allowed the reading out of L.'s previous statements even without the accused's consent.   23.      With regard to the applicant's complaint that L.'s statements were considered by the trial court to be credible, in spite of a certain contradiction, the Supreme Court pointed out that the applicant himself admitted at the trial that he had received a commission both from L. and S. immediately after the loan had been paid out.   B.       Relevant domestic law   24.      Section 252 para. 1 No. 1 of the Code of Criminal Procedure reads in its relevant passages:           (German)           "Protokolle über die Vernehmung von ...         Zeugen ... dürfen nur in folgenden Fällen         vorgelesen werden:         1. wenn ... ihr Aufenthalt unbekannt (ist) ..."           (English translation)           "(1) Records on hearing of ... witnesses ... may         be read out only in the following cases:         1. if ... their whereabouts are unkown ..."   III.   OPINION OF THE COMMISSION   A.       Complaint declared admissible   25.      The complaint declared admissible was that the applicant's conviction on a count of usury was exclusively based on a statement by the alleged victim, witness L., which had been made in his absence before the investigating judge and was read out at the trial.   B.       Point at issue   26.      Accordingly, the issue to be determined in the present application is whether there has been a violation of paragraph 3 (d), taken together with paragraph 1, of Article 6 (Art. 6-3-d+6-1) of the Convention, in respect of the above conviction.   C.       Compliance with Article 6 paras. 1 and 3 (d) (Art. 6-1,6-3-d)         of the Convention   27.      Article 6 para. 1 first sentence and para. 3 (d) (Art. 6-1, 6-3-d)         of the Convention provide:           "1.   In the determination of ... any criminal charge         against him, everyone is entitled to a fair ...         hearing ... by a ... tribunal.         ...         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;         ... "   28.      The applicant submits that these two provisions have been violated because he was convicted on one count of usury solely on the basis of statements made to the investigating judge, and in the complaint previously addressed to the Public Prosecutor, by the alleged victim, L.   The question to be decided by the criminal court was whether the applicant had requested and obtained from the witness a commission that was disproportionate and therefore usurious. This question was not answered by the documents which the witness had submitted in connection with the charges she had laid against him. Nor was it answered in the affirmative by the fact that another victim had at the trial confirmed to have been obliged to pay him a usurious commission.   The only evidence showing that he had requested and received an excessive commission in the case of L. was the statement made by this witness before the investigating judge and previously in her submission to the police.   As however the applicant never had an opportunity to examine or have examined this witness and challenge her credibility, he could not defend himself in an adequate manner.   Under no circumstances would a request to adjourn the proceedings in order to obtain the attendance of witness L. have been granted by the trial   court.   It was therefore sufficient that his defence declared not to renounce the hearing of witness L.   As she was a witness of the prosecution, it would have been the task of the prosecution to see to it that this witness was heard in a manner respecting the rights of the defence.   Article 252 of the Austrian Code of Criminal Procedure which allows the reading out of and relying on statements made before an investigating judge by a witness who is not available at the trial is incompatible with the Convention.   29.      The Government submit that on the one hand there was documentary evidence before the trial court showing that witness L. received, together with another person, a loan with the help of the applicant who (as admitted by him) in turn received a commission.   He only contested the amount indicated by L.    However, L.'s statement was indirectly confirmed by the documentary evidence, by the evidence given in court by another victim who had also had to pay the applicant a usurious commission, and by the fact that he had previously committed offences of the kind in question.   In his detailed memorial of 12 November 1986, the applicant's defence counsel had requested the hearing of several witnesses but not of witness L. Neither in his written pleadings nor at the trial did the applicant explicitly request the examination of that witness, nor did he request an adjournment for this purpose in accordance with Section 276 of the Code of Criminal Procedure when he was informed on 16 December 1986 that witness L. would again not appear.   30.      The Commission, recalling that the guarantees in paragraph 3 of Article 6 (Art. 6) are specific aspects of the right to a fair trial set forth in paragraph 1, will consider the applicant's complaint under paragraphs 3 (d) and 1 taken together (see the Windisch judgment of 27 September 1990, Eur.   Court H.R., Series A no. 186, para. 23).   31.      The Commission further notes that the admissibility of evidence is primarily a matter for regulation by national law, and that, as a rule, it is for the national courts to assess the evidence before them (see, as the most recent authority, the above-mentioned Windisch judgment at para. 25).   Accordingly, its task under the Convention is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (ibid.).   32.      This requires, in principle, that all the evidence be produced in the presence of the accused at a public hearing with a view to adversarial argument.   However, the use as evidence of statements obtained at the pre-trial stage is not always in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6-3-d, 6-1), provided the rights of the defence have been respected.   As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when the witness makes his or her statement or at a later stage of the proceedings (Windisch judgment para. 26 and - as regards evidence given before the investigating judge by a witness who later disappeared - Isgró v. Italy, Comm.   Report 14.12.89, paras. 52 and 55 - 59).   33.      In the instant case witness L. had only been heard at the investigation stage by the investigating judge and consequently she was not examined by the trial court nor did the applicant or his counsel have an opportunity to put questions to her and to challenge her credibility.   34.      The Government point out that the statements of witness L. were analogous to those of another witness who was heard at the trial as a victim of another offence of usury committed by the applicant, and that he had previously been convicted of offences of the kind in question.   35.      The Commission also notes that the hearing of 21 November 1986 was adjourned because the applicant's defence counsel did not renounce the examination of witness L. and that, at the next hearing of 16 December 1986, the defence repeated the request for the taking of evidence which had already been rejected and was obviously contained in the memorial of 12 November 1986 (paras. 17 and 18 above).   36.      The Commission does not find it necessary to determine whether the conduct of the defence at the trial can be interpreted as a waiver of the hearing of witness L.   37.      The Commission first notes that the reason why L. was not heard was that despite the efforts which had been made, it had not been possible to find her and to ensure her presence at the trial. In these special circumstances, it cannot be considered to have been unfair to rely on the statements which L. had previously made, although in the evaluation of those statements as evidence special caution was required in view of the fact that the applicant had not had the opportunity of putting questions to L.   38.      However, the conviction in the present case was based not only on L.'s statements but also on supporting evidence, in particular the fact that the applicant was also found guilty of another offence involving a conduct very similar to that of which he had been accused by L.     C.       Conclusion   39.      The Commission concludes, by 9 votes to 7, that there has been no violation of Article 6 para. 3 (d), taken together with para. 1, (Art. 6-3-d+6-1) of the Convention.       Secretary to the Commission                 President of the Commission              (H.C. KRÜGER)                              (C.A. NØRGAARD)   Dissenting opinion by Mr.   Trechsel, joined by MM. Busuttil, Gözübüyük, Weitzel, Sir Basil Hall and Mr.   Rozakis             To our regret, we are not able to follow the opinion of the majority of the Commission in the present case.   In our view there has been a violation of Article 6 paras. 1 and 3 (d) of the Convention.           The case-law of the Court on the problem at issue is by now well established: "In itself, the reading out of statements ... cannot be regarded as being inconsistent with Article 6 paras. 1 and 3 (d) of the Convention.   But the use made of them as evidence must nevertheless comply with the rights of the defence which it is the object and purpose of Article 6 to protect.   This is especially so, where the person 'charged with the criminal offence', who has the right under Article 6 para. 3 (d) 'to examine or have examined' witnesses against him, has not had the opportunity at any stage in the earlier proceedings to question the person whose statements are read out at the hearing" (Unterpertinger, Series A no. 110, p. 14 para. 31; see also Kostovski, no. 166, p. 20 para. 41;   Delta, No. 191 para. 36).           In the present case, it is not contested that the statements of Miss L. were read out at the hearing and that neither the applicant nor his counsel had ever had an opportunity to challenge these statements by putting questions directly or indirectly to the witness. Therefore, neither the applicant nor the court were able "to test the witnesses' reliability or cast doubt on [her] credibility" (Delta para. 37).           The question then arises as to whether the court "based the applicant's conviction mainly on the statements" concerned (Unterpertinger, para. 33), whether the court, in other words, "relied on" those statements (Bricmont, para. 84; Windisch, para. 31; Delta, para. 37).   In our view this question cannot be answered but in the affirmative.   In fact, there was no evidence whatsoever as to the amount of the commission paid by Miss L. to the applicant except her own contested statement.   It is true that the court also referred to the fact that the applicant had received an exaggerated commission in the other case of usury of which he was found guilty.   However, the decisive element for his conviction in the case concerning Miss L. was clearly her own statement.   The final sentence of the Vienna Regional Court after discussing the evidence reads as follows: "Den glaubwürdigen Angaben der A.L. gegenüber erscheint die Verantwortung des Angeklagten, er habe nur 3.000,- S erhalten, unglaubwürdig." ("In the face of the credible indications of A.L., the statement of the accused according to which he had only received 3,000 S is not credible.").           For these reasons we find that the applicant was "convicted on the basis of 'testimony' in respect of which his defence rights were appreciably restricted" (cf.   Unterpertinger para. 33).   We therefore conclude that Article 6 paras. 1 and 3 (d) has been violated. APPENDIX I     HISTORY OF PROCEEDINGS     Date                             Item   ______________________________________________________________________     6 July 1987                      Introduction of the application   21 August 1987                   Registration of the application   Examination of Admissibility   9 May 1989                       Commission's decision to invite the                                 Government to submit observations on                                 the admissibility and merits of the                                 application   21 September 1989                Government's observations   13 October 1989                  Applicant's observations in reply   5 March 1990                     Commission's decision to declare the                                 application admissible     Examination of the merits   28 March 1990                    Decision on admissibility transmitted                                 to the parties   17 April 1990                    Applicant's observations on the merits   28 May 1990                      Government's observations on the merits   7 July 1990                      Commission's consideration of the                                 state of proceedings   8 January 1991                   Commission's deliberations on the                                 merits, final vote and adoption of                                 the Report