CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 1994

.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. 19795/92                     by H. G.                     against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 7 April 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             Mrs. M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 27 January 1992 by H. G. against Austria and registered on 3 April 1992 under file No. 19795/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 4 February 1993 and the observations in reply submitted by the applicant on 1 April 1993;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case, as they have been submitted by the parties, may be summarised as follows.        The applicant, born in 1958, is an Austrian national and resident at Haugsdorf. He is a veterinary surgeon by profession. Before the Commission he is represented by Mr. E. Mack, a lawyer practising at Korneuburg.        In January 1988 the Lower Austria Regional Government (Landes-regierung) appointed the applicant as meat inspector responsible in an area of six municipalities.        In July 1988 preliminary investigations were opened against the applicant on the suspicion of having wrongly affirmed the adequate quality of a pig after a forced slaughter on 25 June 1988, and neither ordered, as would have been required after forced slaughters, a bacteriological examination, nor informed the competent authorities thereof. In these proceedings, the applicant was assisted by defence counsel, namely Mr. Mack.        On 28 July and 31 October 1988 the applicant was questioned by the police authorities, and, on 20 December 1989, by the Investigating Judge at the Korneuburg Regional Court (Kreisgericht). The applicant stated that, in the course of the examination on 25 June 1988 concerning altogether 125 pigs and 6 piglets, he had not observed any anomalies. He further indicated that normally between 100 and 150 animals were slaughtered on one occasion, and that he received a payment of AS 10 per animal which he examined.        On 28 March 1990 the Korneuburg Public Prosecutor's Office (Staatsanwaltschaft) preferred an indictment against the applicant charging him with abuse of official authority in that he had deliberately failed to inform the competent authorities of the forced slaughter or to order a bacteriological examination of the pig concerned.        The Korneuburg Regional Court conducted the trial against the applicant on 2 August 1990 and 17 January 1991, and heard the applicant and several witnesses as well as a veterinary expert. The applicant was in particular questioned on his professional practice, in particular in respect of examining animals slaughtered at the place of his cousin, a butcher. As regards the volume of his work with his cousin, the applicant indicated that between February and June 1988 he had examined 1,500 pigs per month. His cousin, when heard as witness, indicated that he slaughtered between 400 and 500 pigs per week.        On 17 January 1991 the Korneuburg Regional Court convicted the applicant of abuse of official authority and sentenced him to six months' imprisonment on probation.        The Regional Court, having regard to the statements made by the applicant and the testimonies of several witnesses, found him guilty as charged. It considered in particular that the applicant had not inspected the pig while it had still been alive. Even assuming that, after the forced slaughter, the applicant had not, due to a superficial inspection, noticed the pig's serious disease and thus the forced slaughter, the absence of an inspection prior to the slaughter in any event would have entailed for him the obligation to order a bacteriological examination and to inform the competent authorities. Only on the occasion of a subsequent inspection independently ordered, the serious disease and blood poisoning of the pig and its inadequate quality were established.        As regards the applicant's personal particulars, the Regional Court's judgment, proceeding from an estimate given by the applicant at the hearing of the same day, stated inter alia that his monthly income amounted to AS 10,000 and that he had to maintain his wife and a child.        On 8 April 1991 the applicant lodged a plea of nullity (Nichtig-keitsbeschwerde) and an appeal (Berufung) against sentence. He complained that the reasoning in the judgment of the Korneuburg Regional Court was contradictory and deviated from the indictment. Moreover, the imposition of a fine would have been sufficient. Payment of the whole fine or part thereof might even be suspended on probation.        On 4 July 1991 the Austrian Supreme Court (Oberster Gerichtshof) dismissed the applicant's plea of nullity. The Supreme Court confirmed the Regional Court's reasoning that the applicant had misused his official authority by failing to order a bacteriological examination and to inform the competent authorities, either that he knew about the forced slaughter or at least that he was aware that the pig had been slaughtered without a prior inspection when still alive. The case was referred to the competent Court of Appeal (Oberlandesgericht) for decision upon the appeal. The Supreme Court's decision was served on 5 August 1991.        On 8 August 1991 the hearing before the Vienna Court of Appeal was fixed for 19 September 1991. On 12 August 1991 the summons for the hearing were served upon the applicant.        On 3 September 1991 the applicant informed the Court that, for holiday reasons, he could not be present at the hearing. He requested that either his non-appearance be excused or the hearing be postponed.        On 19 September 1991 the hearing on the applicant's appeal took place before the Vienna Court of Appeal in the presence of the applicant's counsel. According to the verbatim record, counsel informed the Court of Appeal again about the applicant's absence for reasons of holidays, and repeated essentially his written submissions. The Chief State Prosecutor (Oberstaatsanwalt) objected to the appeal.        Following the hearing the Vienna Court of Appeal amended the judgment of 17 January 1991 to the effect that the applicant's sentence to imprisonment was replaced by a fine of 360 daily rates of AS 400, in default of payment 180 days' imprisonment. The execution of part of the sentence, namely sixty daily rates, was suspended on probation. The Court of Appeal considered that, having regard to the applicant's clean criminal record so far, his sentence to imprisonment could be replaced by an equivalent fine. The amount of the daily rates were calculated on the basis of the applicant's monthly income which the Court "assessed realistically" ("realistische Einschätzung") at more than AS 20,000. The Court of Appeal also noted that the applicant's wife had an income of AS 8,500 and that they had one child. The Court considered that, having regard to the applicant's personal and financial situation, he was capable of paying AS 12,000 per month for the fine without ruining himself.        On 25 October 1991 the Korneuburg Regional Court granted the applicant's request to pay the fine in six rates of AS 20,000.   COMPLAINTS        The applicant complains under Article 6 of the Convention about his conviction and about the alleged unfairness of the criminal proceedings against him. He submits in particular that the reasoning in the Regional Court's judgment was not conclusive and not in conformity with the indictment. He further submits that the proceedings before the Court of Appeal were unfair on the ground that the Court of Appeal did not fix the fine on the basis of the Regional Court's findings as to his income, but made an excessive assessment without having heard him on this matter or otherwise established his income.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 January 1992 and registered on 3 April 1992.        On 14 October 1992 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.        On 4 February 1993, the Government submitted their observations. The applicant's observations in reply were submitted on 1 April 1993.     THE LAW        The applicant complains about his conviction and also about the proceedings concerned.        The Commission recalls that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights set out in the Convention (No. 10486/83, Dec. 9.10.86, D.R. 49 p. 100).        In the present case, the applicant complains that, for several reasons, he did not receive a fair hearing, as guaranteed by Article 6 para. 1 (Art. 6-1), in the determination of the criminal charge against him.        The applicant complains in particular that the appeal proceedings before the Vienna Court of Appeal regarding the fixing of the fine imposed upon him were unfair.        The Government contend that the applicant cannot claim to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of the alleged violation of Article 6 para. 1 (Art. 6-1) on the ground that he voluntarily did not avail himself of the opportunity to appear in person at the hearing on his appeal. The applicant and his counsel failed to request expressly that the hearing be postponed. Moreover, in his submissions upon appeal, the applicant himself suggested that the sentence be commuted to a fine, and should have, therefore, been aware that the question of his income might could be of relevance. Having regard to counsel's failure to request that the hearing be postponed, the Government also claim non-exhaustion of domestic remedies under Article 26 (Art. 26) of the Convention.        The Government also submit that the Regional Court, in its judgment, had only referred to the applicant's indications as to his monthly income without assessing this matter on the basis of evidence, as it sentenced him to imprisonment. The Vienna Court of Appeal could reasonably estimate the applicant's income on the basis of the contents of the file.        The applicant submits that the Court of Appeal, deviating from a finding of the first instance court, assessed his income at an unreasonable amount without having heard him on this matter. Such a new estimation by the Court of Appeal was not to be expected.        The Commission notes that the Korneuburg Regional Court, following two hearings, convicted the applicant of abuse of official authority and sentenced him to six months' imprisonment on probation. In its judgment, the Regional Court, proceeding from the applicant's indications at the hearing of the same day, assumed a monthly income of AS 10,000. The applicant's plea of nullity remained unsuccessful. Upon his appeal against sentence, the Vienna Court of Appeal replaced the sentence to imprisonment by a fine of 360 daily rates of AS 400, and suspended the execution of part of the sentence on probation. As regards the fixing of the amount of the daily rates, the Court of Appeal based itself on an assessment of his monthly income at more than AS 20,000.        The Commission also notes that the applicant, in his submissions upon appeal, suggested the imposition of a fine without specifying the amount he considered to be appropriate, or referring to his income as a basis for calculating any daily rates to be imposed. Having been summoned for the hearing on his appeal, he informed the Court that, for holiday reasons, he could not be present at the hearing, and requested that either his non- appearance be excused or the hearing be postponed. At the hearing in question, the applicant's defence counsel was present.        The Commission is not required to decide whether the Government's arguments suffice to conclude that the applicant, in this respect, cannot claim to be a victim, within the meaning of Article 25 (Art. 25), or failed to exhaust the domestic remedies, as required by Article 26 (Art. 26), as his complaints do not, in any event, disclose any appearance of a violation of his right to a fair trial.        The Commission considers that the Court of Appeal, when replacing the applicant's prison sentence by a fine which had to be fixed in relation to his income, could, on the basis of the full contents of the criminal file assess the applicant's income without being bound by the indications of the first instance court in this respect. In the course of the proceedings against him, the applicant had made various statements relating to his workload as a meat inspector, and also to his income. Further indications in this respect followed from the statement of a witness heard at the trial against him. In these circumstances, the assessment made by the Court of Appeal does not appear arbitrary. Moreover, the applicant had made a statement on his monthly income at the trial before the Regional Court. When suggesting, in his appeal, to replace his prison sentence by a fine, he had the opportunity to comment on the question as to the fixing of such a fine, and particularly to specify his income. Having decided not to appear at the hearing upon his appeal, the applicant missed a further opportunity to address this matter before the Court of Appeal, and so did his defence counsel.        The Commission, therefore, finds that there was no element of unfairness in the appeal proceedings before the Vienna Court of Appeal concerning the fixing of the fine imposed upon the applicant.        As regards the applicant's further submissions that the reasoning in the Regional Court's judgment was not conclusive and not in conformity with the indictment, the Commission considers that there is no indication that in the course of the trial before the Korneuburg Regional Court, the applicant, assisted by defence counsel, could not properly present his arguments or not effectively exercise his defence rights.        In these circumstances, the Commission finds that the criminal proceedings against the applicant, taken as a whole, satisfied the requirements of a fair hearing, pursuant to Article 6 para. 1 (Art. 6-1) of the Convention.        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, unanimously        DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                    (A. WEITZEL)