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. 20713/92                     by J. K.                     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 12 May 1992 by J. K. against Austria and registered on 29 September 1992 under file No. 20713/92;        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 1943.   He has formerly been a police officer.   Before the Commission he is represented by Mr. M. Tuschl, residing in Vienna.        The facts of the case as submitted by the applicant may be summarised as follows.        On 8 January 1990 the applicant was taken into detention on remand.   He was suspected of having taken heroin from a police deposit of confiscated drugs and sold it.   On the same day his desk in the Security Directorate (Sicherheitsdirektion) was searched following an order of the Investigating Judge.        On 16 February 1990 the applicant was released, but from 5 March to 16 March 1990 and from 13 April to 16 April 1990 he was again taken into detention on remand.        Meanwhile, on 9 January 1990 the applicant was heard as witness by the Vienna Regional Court, presided by Judge St., in the trial against Q.H., who was accused of drug trafficking.        On 26 September 1990 the Vienna Regional Court (Landesgericht), presided by Judge K. convicted the applicant of abuse of authority, handling of drugs and false testimony and sentenced him to 3 years imprisonment.   The Regional Court found that the applicant, who investigated in drug cases had taken on 15 August 1989 heroin from a deposit of seized drugs and handed it over to V.J., a drug dealer known to him, who sold the heroin. Notwithstanding the secret message from Q.H. found in the course of the search of the applicant's office the applicant had denied in his capacity as witness at the trial of Q.H., that he had received such a message        On 31 January 1991 the Supreme Court partly upheld the applicant's plea of nullity and quashed the Regional Court's judgment insofar as it concerned the conviction of abuse of authority and handling of drugs because the Regional Court had not heard H.H. as witness requested by the defence.        Proceedings were resumed before the Regional Court, presided by Judge St.   On 14 June 1991 the applicant was convicted again of abuse of authority and handling of drugs and sentenced to 3 years imprisonment.   This time H.H. was heard as witness at the trial.        On 8 October 1991 the applicant lodged a plea of nullity and an appeal.   In his plea of nullity, relying on Section 281 paras. 5 and 5a of the Code of Criminal Procedure (Strafprozeßordnung), he complained about the Regional Court's assessment of evidence. In particular, he raised doubts as to the credibility of V.J., the main witness of the prosecution, and complained that, contrary to what the Regional Court had stated, this witness gave different versions of the events in the course of the proceedings.        On 23 January 1992 the Supreme Court dismissed the applicant's plea of nullity under Section 285d para. 1 sub-para. 1 and 2 and Section 285a para. 2 of the Code of Criminal Procedure without an oral hearing.   The Supreme Court held that the assessment of evidence could only be attacked if the conclusions drawn by a court were illogical.   It was not the Supreme Court's task to verify the material correctness of the Regional Court's findings.   As regards the alleged discrepancies in the successive statements of the witness V.J., the Supreme Court found that the Regional Court had correctly assumed that they only concerned accessory circumstances but not the essential facts of the case.   In any event, the applicant's allegations did not find any support in the file.        On 17 March 1992 the Vienna Court of Appeal, after an oral hearing, dismissed the applicant's appeal.   B.    Relevant domestic law        Article 281 para. 1 of the Code of Criminal Procedure (Straf- prozeßordnung) provides for the specific grounds on which a plea of nullity may be made.   These include:        "5.   if the judgment of the trial court in respect of      decisive facts is unclear, incomplete or self-contradictory      ...        5a. if substantial doubts on the correctness of the      decisive facts on which the decision on the guilt is based      arise from the file."        Article 285a para 2 of the Code of Criminal Procedure provides:        "The court of first instance at which a plea of nullity      against the final judgment has been lodged has to reject      this plea:        2. if at the giving of notice of the plea of nullity or its      presentation one of the grounds for nullity as mentioned in      Section 281 para. 1 (1 to 11) has not been indicated      clearly, in particular if the circumstances to which the      ground of nullity relates are not referred to expressly or      at least by a clear indication."        Article 285d para. 1 of the Code of Criminal Procedure provides:        "A plea of nullity may be rejected immediately after      deliberation in private:        1.   if it should already have been rejected by the court at      first instance, pursuant to Article 285 (a) ...,        2.   if the plea of nullity is based on the grounds of      nullity enumerated in Article 281 para. 1 (1-8 and 11) and      if the Supreme Court unanimously finds that the complaint      should be dismissed as manifestly ill-founded without any      need for further deliberation."     COMPLAINTS   1.    The applicant complains under Article 5 of the Convention that his detention on remand from 5 March to 16 March 1990 and from 13 April to 16 April 1990 was unlawful.   2.    The applicant complains further under Article 6 para. 1 of the Convention about his conviction and the proceedings concerned.   He submits in particular that the Regional Court did not believe the credible witnesses of the defence but followed the statements of recidivist drug dealer who even contradicted himself in the course of the proceedings.   He further submits that the Presiding Judge St. at the second trial was biased against him.   In a previous set of proceedings Judge St. had questioned him as a witness, and, in respect of the statements made, he had been convicted of false testimony.   Moreover, he should have been informed in advance of the search of his desk in the Security Directorate, as provided for in Section 140 of the Code of Criminal Procedure.   3.    The applicant also complains under Article 6 para. 2 of the Convention that his conviction infringed the principle of presumption of innocence.   4.    He also complains under Article 6 para. 1 of the Convention that the Supreme Court did not hold a hearing on his plea of nullity.     THE LAW   1.    The applicant complains under Article 5 (Art. 5) of the Convention that his detention on remand from 5 March to 16 March 1990 and from 13 April to 16 April 1990 was unlawful.        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 5 (Art. 5) of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.        In this respect the Commission observes that the applicant has not shown that he appealed to the Judges' Chamber nor that he had instituted proceedings for unlawful detention.   It follows that the applicant has not complied with the requirement as to the exhaustion of domestic remedies contained in Article 26 (Art. 26) of the Convention.        In any event, even assuming that the applicant did exhaust domestic remedies, the Commission finds that the applicant failed to   comply with the time limit stipulated by Article 26 (Art. 26) of the Convention as he was released from detention on remand on 16 April 1990 but introduced the present application only on 12 May 1992.        This part of the application must, therefore, be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant complains further under Article 6 para. 1 (Art. 6-1) of the Convention about his conviction and the proceedings leading thereto.        Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, reads as follows:        "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. ..."        With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its task is to ensure the observance of the obligations undertaken by the parties in the Convention.   In particular, 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 and freedoms set out in the Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the alleged unfairness of the proceedings in several respects.   a)    He submits that the Regional Court did not attach any weight to the statements of the credible witnesses of the defence but followed the statements of a recidivist drug dealer who even contradicted himself in the course of the proceedings.        The Commission recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them.   The Commission's task is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (Eur. Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10, paras. 26 and 27).        In this respect the Commission observes that the applicant failed to show in what way the evidence taken by the Regional Court in the second set of proceedings rendered the proceedings unfair.        It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b)    He submits that the Presiding Judge St. at the second trial was biased against him.        However, the Commission observes that the applicant has not shown that he challenged the Presiding Judge for bias in the course of the trial.        It follows that in this respect the applicant has not satisfied the requirement as to exhaustion of domestic remedies contained in Article 26 (Art. 26) of the Convention and that this part of the application, therefore, is inadmissible by virtue of Article 27 para. 3 (Art. 27-3) of the Convention.   c)    As regards the applicant's further submission that he should have been informed in advance of the search of his desk in the Security Directorate, the Commission observes that the applicant has not shown that he appealed to the Judges' Chamber, or raised the matter in the course of the trial.        It follows that also in this respect the applicant has not satisfied the requirement as to exhaustion of domestic remedies contained in Article 26 (Art. 26) of the Convention and that this part of the application, therefore, is inadmissible by virtue of Article 27 para. 3 (Art. 27-3) of the Convention.   3.    The applicant also complains under Article 6 para. 2 (Art. 6-2) of the Convention that his conviction infringed on the principle of presumption of innocence.        The Commission recalls that the presumption of innocence will be violated if, without the accused's having previously been proved guilty according to law, a judicial decision concerning him reflects an opinion that he is guilty (Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 67 et seq.).        However, it does not appear from the file that the Austrian courts had taken any decisions or attitudes reflecting such an opinion.        It follows that there is no appearance of a violation of the applicant's right under Article 6 para. 2 (Art. 6-2) of the Convention.        Therefore, this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    Finally, the applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Supreme Court did not hold a hearing on his plea of nullity.        The Commission considers it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondant Government.          For these reasons, the Commission unanimously        DECIDES TO ADJOURN its examination of the complaint as      regards the lack of a hearing before the Supreme Court in      the proceedings on the applicant's plea of nullity;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)