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. 20830/92                     by M. W.                     against Austria          The European Commission of Human Rights sitting in private on 7 April 1994, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           MM.   F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY             Mr.   K. ROGGE, 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 26 June 1992 by M. W. against Austria and registered on 22 October 1992 under file No. 20830/92;        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 facts of the case as submitted by the applicant may be summarised as follows.        The applicant is an Austrian national, born in 1970, who resides in Vienna.   Before the Commission he is represented by Mr. R. Soyer, a lawyer practising in Vienna.   A.    Particular circumstances of the case        On 10 May 1991 the applicant was taken in detention on remand on the suspicion of having attempted to rob J.R., his grandfather, on the same day.   On the same day, the applicant and J.R. were questioned by police officer M.G. at J.R.'s apartment and again by police officer H.T. at the police station.   J.R. stated on both occasions that the applicant had threatened him with a pistol to obtain money.        In the subsequent preliminary investigations before the investigating judge J.R. availed himself of the right granted to close relatives of the suspected person, to refuse to give evidence, pursuant to Section 152 para. 1 of the Code of Criminal Procedure (Strafprozeßordnung).        On 6 September 1991 the Vienna Public Prosecutor's Office (Staatsanwaltschaft) preferred a bill of indictment against the applicant, accusing him of attempted aggravated robbery (versuchter schwerer Raub) and extortion (Erpressung).        On 5 February 1992 the trial (Hauptverhandlung) against the applicant took place before a Court of Assizes of the Vienna Regional Court for Criminal Matters sitting with a jury (Geschwornengericht). According to the transcript of the trial, the Court of Assizes heard the applicant as accused and four police officers and J.R.'s neighbour as witnesses and a psychiatric expert.   At the trial J.R. again availed himself of the right to refuse to give evidence.        The applicant stated that on the evening of 10 May 1991 he had had a dispute about money with J.R. who had previously repeatedly given him money.   He admitted that he had had a gas pistol with him that day which he had later hidden outside in the shrubbery close to the parking lot.   He could not imagine having threatened his grandfather with this pistol and he could not remember having threatened his grandfather on earlier occasions, though it was possible as he was often drunk.   He also admitted that the pistol later found was his own.        L.S., J.R.'s neighbour, stated that J.R. had repeatedly complained to her that his grandson was asking him for money and did not work.   On 10 May 1991 J.R. had knocked on her door and asked her for help and to call the police as the applicant had   been there and had threatened him with a pistol asking for money. J.R. had appeared to be scared.   She had phoned the police.        Police officer M.G. stated that on 10 May 1991 he was called to J.R.'s apartment.   There he talked to J.R. and drew up a report on the statements of J.R.   This report was read out in court.        Police officers M.H. and D.S. made further submissions on the events upon their arrival in J.R.'s apartment.        Police officer H.T. stated that on 10 May 1991 he had questioned J.R. and the applicant.   The statements of J.R. were read out in court.      According to the transcript of the trial the applicant's lawyer moved at the end of the hearing that the statements of J.R. made to the police, as reported by police officers M.G. and H.T., should not be used in the trial and that the statements of witness L.S. should not be taken into account, as they would circumvent the right of J.R. to refuse to give evidence.   The bench of the Court of Assizes dismissed these requests.        On 5 February 1992 the jury found the applicant guilty of attempted aggravated robbery and extortion.   The Court of Assizes found that on 10 May 1991 the applicant had forced J.R. to give him money by threatening him with a gas pistol.   Between January 1991 and 10 May 1991 he had repeatedly obtained money from J.R. by threatening to destroy his apartment.   According to the record of their deliberations (Niederschrift) the jury based their verdict on the following evidence: "[applicant's] own statements; plausible statements of the witnesses: L.S. and 3 police officers; weapon was found"   ("Eigene Verantwortung; glaubwürdige Aussage der Zeugen: L.S. u. der 3 Pol. Beamten; Sicher-stellung der Waffe").   The bench sitting with the jury set the applicant's sentence at six years' imprisonment.        On 16 March 1992 the applicant filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung) with the Supreme Court (Oberster Gerichtshof).   He complained that the statements of J.R. before the police had been used in the trial although J.R. had availed himself of his right to refuse to give evidence.   Also the statements of L.S. had been used in the trial to circumvent J.R.'s right to refuse to give evidence.        On 23 June 1992 the Supreme Court dismissed the applicant's plea of nullity and appeal.   It found that the Court of Assizes had acted correctly when dismissing the applicant's request not to use the statements of J.R. before the police and the statements of L.S.   The fact that a witness had availed himself of the right to refuse to give evidence did not exclude the hearing of another witness on what the former had told him earlier outside court.   Moreover, the right not to give evidence was intended to protect the witness from a moral dilemma and not to serve the rights of the defence.   Therefore, the Court of Assizes had been obliged to hear L.S. as a witness in order to gather corroborating evidence as regards the statements of J.R. before the police.   For the same reason it had had to hear the police officers M.G. M.H., D.S. and H.T. as witnesses on the spontaneous statements of J.R., made immediately after the police officers had arrived on the place of the events and on the circumstances under which these statements had been made.   B.    Relevant domestic law        Under Article 152 para. 1, sub-paragraph 1, of the Code of Criminal Procedure, the members of the accused's family as referred to in Article 72 of the Criminal Code are exempted from giving evidence.        Paragraphs 2 and 3 of Article 252 of the Code of Criminal Procedure are worded as follows:        "2. The records of on-the-spot inspections and police      reports, as well as the accused's criminal record and any      other material documents or evidence, shall be read out at      the hearing, unless both parties agree to dispense with      this proceeding.        3. After each such document has been read out, the accused      shall be asked if he wishes to make any comments thereon."     COMPLAINTS        The applicant complains under Article 6 paras. 1 and 3 (d) of the Convention that the statements his grandfather J.R. made before the police at the pre-trial stage were read out in court at the trial, though J.R. availed himself of the right not to give evidence.   At no stage of the proceedings had he had the possibility to question this central witness of the prosecution. Nevertheless, the Austrian courts based his conviction exclusively on the statements of this witness.     THE LAW        The applicant complains under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that at his trial the statements his grandfather J.R. made before the police were read out in court, although J.R. availed himself of the right not to give evidence.        Article 6 paras. 1 and 3 (d) (Art. 6-1-, 6-3-d) of the Convention, as far as relevant, reads as follows:        "(1) 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. ..."        (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;"        The Commission recalls that the guarantees contained in paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific aspects of the general concept of fair trial set forth in paragraph 1 of this Article.   In the circumstances of the present case, it will consider the applicant's complaint under the two provisions taken together (see Eur. Court H.R., Isgrò judgment of 19 February 1991, Series A no. 194-A, p. 12, para. 31).        The Commission recalls further 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.   All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument.   This does not mean, however, that the statement of a witness must always be made in court and in public if it is to be admitted in evidence; in particular, this may prove impossible in certain cases.   The use in this way of statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6-1, 6-3-d), provided that 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 witnesses against him, either when he was making his statement or at a later stage of the proceedings (Eur. Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10, paras. 26 and 27).        J.R., the victim of the offences in question had, following statements on the events made before police officers M.G. and H.T., availed himself of his right to refuse to give evidence. Thereupon, at the applicant's trial, J.R.'s earlier statements were read out in court and the police officers concerned gave testimony about the circumstances in which these statements had been made.   Unlike the cases of anonymous witnesses, J.R. was known in particular to the applicant who was in a position to raise doubts as to J.R.'s credibility, and he could react during the trial to the evidence given by the police officers as well as by the witness L.S., who also referred to statements which J.R. had made to her outside court.   He also had the possibility to put forward his own version of the events.   In this respect the Commission notes that the applicant did not clearly claim to be innocent.        The Commission further notes that, according to the note on their deliberations, the jury did not expressly rely on the statements J.R. had made to police officers M.G. and H.T.   They relied on the applicant's own statements and the statements of witnesses, namely three police officers M.G., H.T. and M.H, and the applicant's neighbour L.S. Besides a recount of the events which J.R. had given to them, these statements also contained the personal assessments of these witnesses.   Lastly, the jury also relied on the fact that the applicant on the day of the events admittedly had a pistol with him and that this pistol was found close to the victim's home.        The Commission finds that the Court of Assizes could reasonably consider the statements of J.R., as read out in court, to be corroborated by the evidence before it.   The fact that it was impossible to question J.R. at the trial did not, therefore, in the circumstances of the case, violate the rights of the defence and did not deprive the applicant of a fair trial.        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 Second Chamber        President of the Second Chamber          (K. ROGGE)                         (S. TRECHSEL)