CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1992

.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. 17380/90                       by S.K.                       against Austria           The European Commission of Human Rights sitting in private on 29 June 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                Mr. K. ROGGE,   Deputy to the 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 7 August 1990 by S.K. against Austria and registered on 30 October 1990 under file No. 17380/90;         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 1955.   He is represented before the Commission by Mr. E. Kininger, a lawyer practising at Innsbruck.           On 28 March 1988 the Kufstein District Court (Bezirksgericht) convicted the applicant, a railwayman, of causing injury on 14 July 1987 by striking a person with a heavy lamp.   He had denied the offence.           On 14 October 1988 the applicant was questioned as a witness in proceedings against R.E., one of the colleagues who, it was alleged, had been with him on 14 July 1987.   He denied that either he or his colleague had a lamp.           Proceedings for perjury in connection with this evidence were brought against the applicant, who was convicted on 19 September 1989 by the Innsbruck Regional Court (Landesgericht). The Regional Court found that the applicant had said "neither of us had a lamp", even though he had been reminded of his obligation to tell the truth.   He had been aware that the statement was incorrect. The Regional Court refused an application for a trade unionist to be called to give evidence that the applicant only acted under the pressure of a duty of solidarity to his colleagues.   The applicant was fined AS 30,000.           The conviction and sentence were confirmed by the Innsbruck Court of Appeal (Oberlandesgericht) on 1 February 1990.   The judgment was served on the applicant's lawyer on 16 February 1990.   The Court of Appeal noted that the Regional Court had not given the applicant the chance to remain silent as provided for in Article 153 of the Code of Criminal Procedure (Strafprozessordnung), and indeed had assumed that he had no such right.   However, as the applicant had already been convicted of causing injury with a lamp, he could not have suffered any further prejudice if he had admitted this fact in the proceedings against R.E..           The Court of Appeal further found that the Regional Court had properly assessed the evidence, commenting that it was impossible that the applicant had made a mistake as to whether he and R.E. had lamps; the applicant was therefore not telling the truth.     COMPLAINTS           The applicant alleges a violation of Article 6 of the Convention.   He considers it unjust that as a convicted person who had consistently maintained his innocence he should have been required on pain of fine to "confess".   He further considers that he should have been informed of his right under Article 153 of the Code of Criminal Procedure not to give evidence.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 7 August 1990 and registered on 31 October 1990.         On 11 July 1991 the Commission decided to bring the application to the notice of the respondent Government and to request written observations on its admissibility and merits.         On 23 August 1991 the Agent of the respondent Government informed the Commission that, pursuant to a plea of nullity for safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), the applicant had been acquitted of the charge of perjury against him.   This information was communicated to the applicant's representative on 9 September 1991,   with a request to state, by 7 October 1991, whether the applicant wished to pursue the complaint before the Commission. A copy of the letter was sent to the applicant on 14 November 1991. On 15 November 1991 the Agent of the respondent Government, further to his letter of 23 August 1991, recalled that in its judgment of 6 June 1991 the Supreme Court had agreed with the substance of the applicant's complaint concerning Article 153 of the Code of Criminal Procedure. On 2 December 1991 the Agent of the respondent Government informed the Commission that the fine imposed on the applicant had been reimbursed by the Regional Court at Innsbruck on 6 August 1991, and that the applicant had received AS 5,000 compensation for his costs in the domestic proceedings.   Copies of the Government's letters of 15 November and 2 December 1991 were submitted to the applicant, but no reply has been received.   REASONS FOR THE DECISION         The applicant complains of his conviction for perjury in connection with evidence given by him in proceedings against a third party.         The Commission notes that the applicant's conviction has been quashed, his fine has been reimbursed and he has received AS 5,000 compensation for his costs in the domestic proceedings.   Moreover, neither the applicant nor his representative have made any comment whatsoever on the submissions of the respondent Government.         The Commission concludes that this matter has been resolved, within the meaning of Article 30 para. 1 (b) of the Convention.   It further finds that respect for human rights as defined in the Convention does not require a continuation of its examination.         For these reasons, the Commission unanimously         DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.       Deputy to the Secretary to the Commission    President of the Commission                     (K. ROGGE)                             (C. A. NØRGAARD)