CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 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. 22715/93                       by E. G.                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 17 January 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  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 19 August 1993 by E. G. against Austria and registered on 30 September 1993 under file No. 22715/93;         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, born in 1954, is an Austrian national.   He is a lawyer by profession, residing and practising in Vienna.   A.     The particular circumstances of the case         On 6 May 1992 the Vienna Regional Criminal Court (Landesgericht) held a hearing concerning charges of intimidation (Nötigung), assault (Körperverletzung) and cruelty to animals (Tierquälerei) against the applicant.         The charges related to an incident in road traffic in June 1991. The applicant pleaded not guilty.   He submitted in particular that he had let his car roll slowly into a parking space, which was occupied by the dog of Mrs. H.   Although he had already stopped, Mrs. H. had placed herself in front of his car and ordered him not to drive any further.   Thereupon, he had simply left.   He had returned a little later to park the car properly.         The witness, Mrs. H., stated that the applicant, with his car, had driven up to her dog and knocked it down.   When the dog moved away, she had placed herself between it and the applicant's car. Subsequently, the applicant touched her twice with his car.   On the next day she had filed a criminal information (Anzeige) with the police.   The Court also heard the police officer, with whom Mrs. H. had filed the information.   He stated inter alia that Mrs. H. had a swollen knee and that the dog limped slightly.   In the course of the questioning the applicant had the opportunity to put questions; however, some of his questions to the witness Mrs. H. were refused by the judge, who, according to S. 249 para. 2 of the Code of Criminal Procedure (Strafprozeßordnung), may reject questions which appear unreasonable.   Further, the Court heard a medical expert as regards the injuries suffered by Mrs. H. and a veterinary expert on the injuries of the dog.         After the witnesses and the two experts had been heard the applicant requested to be assisted by counsel.   The judge rejected this request on the ground that the applicant was experienced enough to present his defense.         The applicant gives the following account of the subsequent events: As the judge refused to let him use the telephone in the meeting room to call a counsel, he went to the door to ask a colleague, who was waiting outside, to call a counsel for him.   Thereupon, the judge, by setting off an alarm, called a security officer (Justizwache- beamter), whom he instructed to sit down next to the door and to arrest him, should he again try to leave.   The hearing continued for another two and a half hours.         According to the minutes, the applicant brought a motion challenging the judge for bias, inter alia on the ground that he had prevented him to call a counsel, had threatened to arrest him and had rejected his requests relating to the taking of evidence.   He further requested that the hearing be suspended until he got the assistance of a counsel, as in the circumstances, he did not feel able to plead his case.   The judge also rejected these requests.         The Regional Court convicted the applicant for intimidation, assault and cruelty to animals and sentenced him to four months' imprisonment.   The sentence was suspended on probation.   It found that the applicant had touched Mrs. H. twice with his car in order to force her to leave a parking space with her dog and thereby caused bruises of her right knee and a minor strain of the right ankle and had also hit the dog with his car causing a very painful blow to the joint, bruises and a large haematoma on the right hindquarter.         In establishing the facts, the Court noted that the witness, Mrs. H., had made detailed and credible statements before the police and the investigating judge as well as at the hearing.   The Court had not had the impression that she gave a hysterical or distorted account of the facts, as alleged by the applicant.   Therefore, the applicant's various requests for the admission of evidence as regards her credibility had to be rejected.   As regards the injuries of the dog, the Court found that they were confirmed by the veterinary expert. Thus the applicant's requests for ordering the opinion of another veterinary expert as well as other requests aimed at showing that the injuries could not have been sustained in the incident, as described by Mrs. H., had to be rejected.   As regards the injuries suffered by Mrs. H., the Court referred to the medical expert and an attestation of the hospital where she had been treated after the incident.   As the injuries were typical consequences of being hit by a car, the applicant's request for another expert opinion and other requests aiming at showing that the injuries could also have been caused by another event, had to be rejected.         On 22 June 1992 the applicant, now represented by counsel, lodged an appeal on questions of law and fact (Berufung).   As regards the appeal on questions of law, he complained in particular that the trial judge had rejected his request to be assisted by counsel.   He alleged that the judge had threatened to arrest him and had called a security officer to prevent him from leaving the court room.   He further complained that the court had rejected all his requests for the admission of evidence and that the judge had not withdrawn from the case after he had challenged him for bias.         In his appeal on questions of fact, the applicant contested the Regional Court's findings and filed a number of new requests for the admission of evidence.   In particular, he submitted the opinions of another medical and another veterinary expert.         On 19 October 1992 the Vienna Court of Appeal (Oberlandes- gericht), after having held a hearing in presence of the applicant and his counsel, dismissed the applicant's appeal.         As regards his complaint that he was not allowed to call a counsel, the Court considered that the applicant was himself a lawyer and had been familiar with the charges against him.   Had he deemed it necessary, he could have come to the hearing with a counsel.   At the hearing he could question the witnesses and the two experts.   Further, he made altogether forty-one requests for the taking of evidence. Thus, the fact that he was not represented by counsel did not prevent him from presenting his defense.   As regards the rejection of the applicant's requests for the admission of evidence, the Court of Appeal noted that the Regional Court, in its judgment, had dealt with them in detail and had given conclusive reasons for their rejection.   It had properly examined them and had come to the conclusion that they were either not suited to prove relevant facts, or could not further clarify facts which had already been sufficiently examined.         As regards his appeal on questions of fact, the Court of Appeal found that the Regional Court, having the personal impression of the applicant, the witnesses and the experts, had given a convincing evaluation of the evidence.   There were no objections as regards the establishment of the facts.   Further, the Appeal Court did not find any reason to take additional evidence (Beweisergänzung) and did therefore not deal with the two additional expert opinions presented by the applicant.         The decision was served on the applicant on 23 February 1993.   COMPLAINTS   1.     The applicant complains under Article 6 of the Convention about the unfairness of the criminal proceedings against him.   He submits in particular that the courts were biased, that his right to choose a counsel and to be assisted by counsel was restricted and that the courts rejected his requests relating to the taking of evidence.   2.     The applicant complains that the proceedings violated his right to property.   3.     Further, the applicant complains that he has been unlawfully arrested during the trial before the Vienna Regional Criminal Court. He submits in particular that the judge, after he had gone to the door of the court room as he wanted to call a counsel, had set off an alarm. Thereby the judge called a security officer, whom he instructed to sit down next to the door and to arrest him, should he again try to leave.   THE LAW   1.     The applicant complains under Article 6 (Art. 6) of the Convention about the unfairness of the criminal proceedings against him and about the alleged bias of the criminal courts.         Article 6 (Art. 6), so 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 ... by an       independent and impartial tribunal ... .         3.    Everyone charged with a criminal offence has the following       minimum rights:         c.    to defend himself in person or through legal assistance of       his own choosing ... ."   a.     As regards the applicant's complaint that he was prevented from being represented by counsel, the Commission notes that Article 6 para. 3 (c) (Art. 6-3-c) guarantees everyone charged with a criminal offence the right either to defend himself in person or through legal assistance of his own choosing.   As the requirements of paragraph 3 of Article 6 (Art. 6-3) represent particular aspects of the right to a fair trial guaranteed in paragraph 1, the Commission will examine the applicant's complaints from the point of view of these two provisions taken together (see Eur. Court H.R., Lüdi judgment of 15 June 1992, Series A. no. 238, p. 23, para. 43).         In the present case, the applicant, who is himself a lawyer, appeared at the hearing before the Regional Court of 6 May 1992 without counsel.   He only requested to be assisted by counsel after the witnesses and two experts had been heard.   The Regional Court refused his request on the ground that he was experienced enough to defend himself.   The Court of Appeal, on the applicant's appeal, confirmed this decision, finding that the applicant had been able to exercise his defence rights at the hearing.         The Commission finds no indication that the applicant could not properly present his defence before the Regional Court. Moreover, he could lodge an appeal regarding questions of law and fact against the Regional Court's decision and was represented by counsel at the appeal stage.   In these circumstances there is no indication that the Regional Court's rejection of the applicant's request to be assisted by counsel was contrary to the requirements of a fair trial within the meaning of Article 6 paras. 1 and 3 (c) (Art. 6-1+6-3-c) taken together.   b.     As regards the applicant's complaint that the courts rejected his requests relating to the taking of evidence, the Commission recalls that the admissibility of evidence is primarily governed by the rules of domestic law, and as a general rule it is for the national courts to asses the evidence before them.   The Commission's task is to ascertain whether the proceedings, considered as a whole, were fair (see Lüdi judgment, loc. cit).         In the present case, the Regional Court, in its decision of 6 May 1992 gave reasons for its rejection of the applicant's requests for the admission of evidence, relating in particular to the credibility of the witness, Mrs. H., and the opinions of the medical and the veterinary expert.   The Court of Appeal found these reasons conclusive.   It further considered that the Regional Court's evaluation of evidence was convincing, and did not find any reason for taking additional evidence. There is no indication that the applicant was unduly restricted in questioning the witnesses.   In these circumstances, the Commission finds that the applicant failed to show that the taking of evidence was arbitrary and therefore contrary to Article 6 para. 1 (Art. 6-1).   c.     As regards the applicant's further complaint under Article 6 (Art. 6) that the courts deciding on the criminal charge against him were biased, the Commission recalls that the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur. Court H.R., Fey judgment of 24 February 1993, Series A no. 255-A, p. 12 para. 28).         In the present case the applicant challenged the judge at the Regional Court for bias, in particular on the grounds that he had rejected his request to be assisted by counsel and his requests relating to the taking of evidence.   However, he did not challenge the judges at the Court of Appeal.         With a view to its above findings regarding the alleged unfairness of the proceedings, the Commission considers that the applicant's submissions do not suffice to put the personal impartiality of the judge of the Regional Court into doubt.   The applicant failed to submit any other facts.   His fear, expressed in general terms, that the judges dealing with his case lacked impartiality can, therefore, not be regarded as objectively justified.         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.   2.     The applicant also complains that the contested criminal proceedings against him violated his right to property.         The Commission finds that the applicant failed to substantiate this complaint.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant further complains that he was unlawfully deprived of his liberty during the hearing before the Vienna Regional Criminal Court of 6 May 1992.         The Commission notes the applicant's submissions that, in the course of the above hearing he had gone to the door of the court room in order to ask a colleague, who was waiting outside, to call a counsel for him, and that, thereupon, the judge called a security officer, whom he instructed to arrest him, should he again try to leave. Subsequently, the hearing went on for about two and a half hours.         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 Government.         For these reasons, the Commission unanimously         DECIDES TO ADJOURN the examination of the applicant's complaint       concerning his alleged arrest during the hearing of 6 May 1992       before the Vienna Regional Criminal Court;         DECLARES INADMISSIBLE the remainder of the application.     Secretary to the First Chamber           President of the First Chamber        (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)