CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 mars 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 }                         AS TO THE ADMISSIBILITY OF                         Application No. 16121/90                       by Walter Franz Leopold JEDINGER                       against Austria             The European Commission of Human Rights sitting in private on 6 March 1991 , the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 15 July 1989 by Walter Franz Leopold JEDINGER against Austria and registered on 2 February 1990 under file No. 16121/90;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is an Austrian citizen, born in 1956 and at present detained in prison in Krems.           The applicant complains that he was convicted and sentenced on the basis of confessions obtained by the police under duress.           The facts submitted are as follows.           On 9 November 1988 the applicant was convicted by the Vienna Regional Court (Landesgericht) of several counts of aggravated theft (gewerbsmässiger schwerer Diebstahl) and other offences.   He was sentenced to seven years' imprisonment.   Two co-accused received sentences of two and four years' imprisonment.           According to the findings of the trial court, the applicant was arrested by the police during the night of 25 October 1987 after having tried to break into a shop.   He was heard by the police on the same day, the following day and 10 November 1987, and confessed a series of burglaries and other offences.           Two months later, on 18 January 1988, he revoked his confession alleging that it had been extorted by the police.   He stated that they had put a plastic bag over his head depriving him of oxygen so that he repeatedly fell unconscious.   Eventually he was made to sign the reports drawn up by the police.           The trial court considered that this allegation was contradicted by the statements of the investigating policemen.   The trial court also pointed out that when hearing a suspect who was caught red-handed the police officers involved do not usually have at their disposal detailed reports about offences committed elsewhere but only circular notes with summary information.   Normally other police stations are requested to submit detailed reports once there is reason to believe that an arrested person has committed several offences at different places.   This was, according to the evidence given by the police officers involved in the applicant's case, the manner in which the police proceeded.    Therefore, the court concluded that the detailed description in the applicant's confession after his arrest of how the various offences had been carried out by him and and his accomplices could only have been given by the person who in fact perpetrated the offences.   The fact that other persons had also alleged to have been ill-treated by the police did not prove that the applicant's confession had been extorted because in the other cases in question no allegation was made that the confessions made under duress did not correspond to the reality.   The Court also noted that the applicant had a criminal record with seven prior convictions for similar offences, while the policemen in question were considered to be credible.   Furthermore, account was taken of the fact that the applicant had been incriminated by the statements made before the police by his co-accused who did not allege to have been ill-treated.           The applicant's plea of nullity (Nichtigkeitsbeschwerde) was rejected by the Supreme Court (Oberster Gerichtshof) on 27 April 1989. Insofar as the applicant had alleged that he had been under police surveillance for a considerable period and consequently the police had had the opportunity to "prepare" his case, the Supreme Court noted from the files that the police surveillance, caused by an informant, had started on 24 October 1987 and ended with the applicant's arrest on the following early morning.   The remaining complaints were likewise considered to be ill-founded.   The Supreme Court only dealt with the grounds of nullity submitted by defence counsel but refused to consider submissions made by the applicant personally.   The applicant's appeal (Berufung) was rejected by the Vienna Court of Appeal (Oberlandesgericht) on 14 June 1989.           A request for a retrial (Wiederaufnahme des Strafverfahrens) was rejected by the Vienna Regional Court on 4 October 1989.   An appeal (Beschwerde) against this decision was rejected on 5 December 1989 by the Court of Appeal.           The applicant points out that Amnesty International reported his case.   The report has been submitted and is apparently based exclusively on the applicant's own allegations.   It states, inter alia, that on 3 November 1987 the applicant was heard by the investigating judge to whom he reported in detail about his ill-treatment by the police.   Nevertheless the investigating judge allowed the police to interrogate the applicant again on 10 November. Allegedly he was then again ill-treated by way of a plastic bag being put over his head in order to produce a sensation of suffocation.           It follows from observations sent by the Austrian authorities to Amnesty International that three of several witnesses named by the applicant, who had allegedly also been ill-treated in the same manner, were heard and did not confirm the applicant's allegations.           The applicant laid criminal charges against several police officers.   On 13 June 1990 he was informed by the Public Prosecution that there were no reasons to institute criminal proceedings but that he was free to request the Regional Court to institute investigating proceedings and bring an action for damages.   COMPLAINTS           The applicant maintains that his conviction is based on evidence obtained under duress by the police.   He invokes Articles 3, 5, 6, 13, and 14 of the Convention.   THE LAW           The Commission has considered the applicant's complaints under Article 3 (Art. 3) (prohibition of ill-treatment), Article 5 (Art. 5) (personal liberty) and Article 6 (Art. 6) of the Convention (right to a fair hearing in criminal cases).           The Commission is not competent to examine complaints alleging that domestic court decisions are based on errors of law or fact unless such errors involve a violation of Convention rights. In the present case, the applicant's allegations of ill-treatment by the police prior to his conviction and sentence were examined by the competent Austrian courts and considered to be unfounded.   The trial court heard the responsible police officers and accepted their statements denying the charges laid against them by the applicant as credible.   The trial court pointed out that in his confessions the applicant had given details which only the person who had committed the offences could have known.   Furthermore, the applicant was incriminated by his accomplices who did not allege that their statements had been made under duress.   The Commission further notes that the applicant was arrested at night when attempting to break into a shop.           The Commission has noted that Amnesty International reported about the applicant's allegation of having been ill-treated by the police.   However, this report does not refer to any evidence, other than the applicant's own statements, that would support the applicant's allegations in this respect and he has not submitted any other documents or other evidence to prove them.   It further appears from the information provided by the Government to Amnesty International that three prisoners, named by the applicant as victims of the ill-treatment by the police, denied having been ill-treated, either with a plastic bag or in any other way.           In these circumstances there is nothing to show that the applicant was arbitrarily arrested, contrary to Article 5 (Art. 5), or ill-treated by the police, in violation of Article 3 (Art. 3), or that, in the subsequent criminal proceedings against him, he was not given a fair hearing, as required by Article 6 of the Convention, both by the trial court and the courts which considered his plea of nullity and his appeal.           In conclusion the Commission finds no appearance of a violation of the Articles invoked by the applicant.           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 by a majority           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission              (H.C. KRÜGER)                             (C.A. NØRGAARD)