CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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. 20953/92                Application no. 21049/92 by Robert LORICH                        by Gerhard LORICH against Austria                         against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 11 January 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              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 applications introduced on   8 September 1992 by Robert and Gerhard Lorich against Austria and registered on 16 November and 9 December 1992 respectively under file Nos. 20953/92 and 21049/92;        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 applicants are cousins and both Austrian citizens who are presently detained in prison in Graz-Karlau.   Robert Lorich was born in 1965 and Gerhard Lorich in 1962.   They are both represented by Mr. F. Insam a lawyer practising in Graz who also defended them in the domestic proceedings.        It follows from their statements and the documents submitted that both applicants were convicted on 12 November 1991 by unanimous verdict of a jury (Geschworene) at the Graz Regional Court (Landesgericht) of having committed together on 20 October 1990 an armed robbery (schwerer Raub).   They were sentenced to 9 years (Gerhard Lorich) and 10 years (Robert Lorich) imprisonment respectively.   Gerhard Lorich who was in detention remand since 25 June 1991 was given credit for the period which he had spent in detention pending trial.        It follows from the trial record of 11 and 12 November 1991 that the applicants had been incriminated by one H.S., an accomplice who was at the relevant time suspected of being a receiver (Hehler).   H.S. had travelled with the applicants to Hamburg shortly after the crime had been committed and had pledged a gold ring, which was part of the stolen property, in a Hamburg pawnshop.    H.S. had stated during the investigations that he had   received the ring from the applicants. Another witness, Mrs. W.D., a prostitute, and former friend of Robert Lorich gave evidence to the effect that a pump-gun used at the robbery had been lent to the applicants by her father.   She also stated that she had provided the applicants with gloves and a hood corresponding to those which the authors of the crime had worn.   Furthermore she stated that the day after the crime had been committed both applicants had bought new clothes and that she had found in the room which she shared with Robert Lorich a jewellery bag containing inter alia, a man's gold pocket watch carved with initials, which she no longer recalled.   (The watch was identified as being part of the stolen property. It belonged to a friend of the victim and the initials corresponded to his name).   The victim of the robbery stated, as witness, that she could not identify the applicants on sight as they had been masked but her description of the difference in size of the two robbers corresponded to that of the applicants. She also stated that at a test (Hörprobe) made during the investigation proceedings when she was asked to listen to several voices, she clearly identified one of the applicant's voices as belonging to the robber who had spoken to her and who had ordered her to hand over the key to her safe.        The victim stated at the trial that she maintained her prior deposition and underlined that at the time of the robbery she fully concentrated on the voice as there was no other possibility to identify the robbers later.   She insisted that among a hundred voices she would always recognise the robber's voice.   The victim also recognised the aforementioned pump-gun as the weapon used by the robbers.   Another witness, one W.R., stated that the applicant, Robert Lorich, had tried to sell him jewellery, inter alia, a gold pocket watch.        Other witnesses gave further evidence which was considered to be corroborating.        A police officer, H., stated as witness that subsequent to the robbery the applicant Robert Lorich had called on him in his office to inform him that a certain "Peter" had offered to sell him jewellery. The precise description which this applicant gave of the jewellery made it likely that it was that which been stolen on 20 October 1990.        Another police officer, Sw., stated as witness that he had interrogated H.S. who told him that the applicants had carried out the robbery and that he had received the stolen property from them.   H.S. told this officer also that he was not prepared to confirm this statement in writing or at a court hearing.   Sw. further told the court that H.S. himself had a valid alibi in respect of the time when the robbery was carried out.        A further officer, F., likewise stated when heard as witness that he was present when H.S. mentioned that everybody in Graz knew that the applicants had committed the robbery.   He, H.S., would however have to leave Graz if he signed a deposition incriminating the applicants.        The defense thereupon requested that H.S. be heard as witness by the trial court.   The court granted this request and suspended the hearing from 16.20 to 17.00 hrs. in order to have H.S. brought to the court by the police witnesses.   As H.S. could not be found the hearing was adjourned to the following day.   However, the police was still unable to find H.S.   A visit effected by the police at an address indicated by the defense was to no avail.        The trial court noted that H.S. was being prosecuted against, in separate proceedings, on the charge of receiving stolen goods (Hehlerei) and had been released from detention on remand the day before.        The defense then objected to the reading out of the police protocol on H.S.'s statements and complained that the trial court had failed to see to it that H.S. was present as witness.        The taking of evidence was terminated on 12 November 1991 at about 18.00 hrs.   The protocols concerning H.S.'s depositions before the police had not been read out.        Subsequently the court elaborated in camera the questions to be put to the jury.   They were discussed with the parties and partly amended.   Then the jury started its deliberations following a summing up (Rechtsbelehrung) given to them by the presiding judge.   The indictment and court files were placed at the jury's disposal.   The verdict was pronounced in the late evening.        The applicants lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against conviction (Berufung).        On 10 March 1992 the Supreme Court (Oberster Gerichtshof) rejected both remedies as being unfounded.        Insofar as the applicants had complained that the pre-trial statements of the supposed accomplice, H.S., had been made available to the jury although they had not been read out at the trial the Supreme Court found that the statements in question had been referred to and discussed with the defendants when they were heard personally. Thus they had been introduced into the trial and their being made available to the jury did not violate any procedural guarantees.   The Supreme Court further stated that it had been impossible to hear H.S. as a witness as he had been released from prison shortly before the trial and his whereabouts were unknown. Attempts to have him brought to the court by the police failed.   Insofar as the applicants had complained that their requests to take evidence on the length of their stay in Hamburg had been rejected, the Supreme Court pointed out that the hotel list had been checked by the police and that in any event it was irrelevant whether or not the applicants had stayed one more night in that city.   All other complaints made by the applicants were likewise considered to be unfounded.   COMPLAINTS        The applicants submit that they did not have a fair trial.   They mainly complain that H.S. who incriminated them when he was heard by the police as co-accused had an interest in incriminating them. Therefore he should have been heard in their presence so that they could have put questions to this witness.   They contest that H.S. was not available for the trial hearing.   They further consider that the evidence against them was insufficient and did not justify their conviction.   They invoke a violation of Article 6 paras. 1 and 3 (d) of the Convention.   THE LAW        In view of the similarity of the applications, the Commission finds it convenient to join the applications (Rule 35 of the Commission's Rules of Procedure).        The applicants allege a violation of their right to a fair trial as guaranteed by Article 6 (Art. 6) of the Convention mainly on the ground that a co-accused, one H.S., who is being prosecuted in separate proceedings as a receiver, was not heard as witness at their trial although he had incriminated them when heard by the police at the pre- trial investigations.        It has first to be pointed out that the admissibility of evidence is a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them.   The task of the Convention organs is to ascertain whether the domestic proceedings considered as a whole, including the way in which evidence was taken, were fair.   This is the fundamental point at issue and since the guarantees in paragraph 3 of Article 6 (Art. 6-3) are specific aspects of the right to a fair trial set forth in para. 1, the Commission has to consider the complaint under the two provisions taken together (see Eur. Court H.R., Isgrò judgment of 19 February 1991, Series A no. 194, p. 11 para. 31).        In the present case it is undisputed that the trial was interrupted and eventually postponed until the following day in order to have the police search for H.S. whose whereabouts were unknown. There is consequently no doubt that a serious attempt was made to secure his attendance in court as a witness.        The Commission also notes that the protocols relating to H.S.'s statements made before the police were not read out as evidence at the trial.   The policemen who had interrogated H.S. as a suspect had stated as witnesses that while H.S. mentioned the applicants to be the robbers he refused to sign a paper by which he would incriminate them.   On the other hand the Commission notes that according to the trial record extensive evidence was produced at the trial in the presence of the accused and subject to adversarial argument.   The victim of the robbery stated that she clearly identified the voice of one of the two accused and she identified the weapon used by the robbers.   This weapon had according to the evidence given by Mrs. W.D. been lent to the applicants by her father.   W.D. also stated that shortly after the robbery she found a jewellery bag in the possession of the applicant Robert Lorich which inter alia contained a man's gold pocket watch carved with initials which she could no longer recall.   Other witnesses gave further corroborating evidence against the applicants.        It can in these circumstances not be found that the applicants' conviction is either based on insufficient evidence or on evidence other than that obtained in a public hearing at the trial and with regard to which the applicants had adequate and proper opportunity to challenge and question the various witnesses heard by the court.        There is consequently no appearance of a violation of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention and it follows that the applications have to be rejected as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission unanimously        DECIDES TO JOIN THE TWO APPLICATIONS, AND        DECLARES THE APPLICATIONS INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)