CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 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. 17971/91                       by Leopold PEUTL                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              MM.    C.L. ROZAKIS, President                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 17 December 1990 by Leopold PEUTL against Austria and registered on 21 March 1991 under file No. 17971/91;        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 28 September 1993 and the observations in reply submitted by the applicant on 12 November 1993;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1949 and residing in Vienna. Before the Commission he is represented by Mr. W. Gussenbauer, a lawyer practising in Vienna.        The facts, as submitted by the parties, may be summarised as follows.        On 8 August 1989 the Vienna Regional Court (Landesgericht) convicted the applicant of negligent bankruptcy (fahrlässige Krida) and sentenced him to a conditional term of imprisonment of 3 months. In these proceedings the applicant was assisted by counsel.        The Regional Court found that the applicant after the death of his father in February 1980 had taken over the latter's business, a firm for raising of and trading in livestock.   At that time the financial situation of the firm was already strained and its activities could only be continued with considerable loans.   Since November 1982 the applicant had no more liquid means to honour debts.   Bank loans were refused and the applicant had to take further loans with the assistance of private credit brokers (Kreditvermittler) at particularly onerous terms.   The applicant unsuccessfully tried to obtain a general settlement of his debts with his creditors.   Moreover, he had to pay to his brother a compensation for the latter's right to a part of the estate.   In 1983 the applicant unsuccessfully tried to sell his business to the ALAG Bank and to lease it back.   Nevertheless, the applicant continued to wait with the filing of bankruptcy proceedings which resulted in further debts in the amount of some 3 million AS which he could not honour.   The applicant admitted that he had failed to inform his creditors correctly about his financial situation.        At the trial the Regional Court heard four witnesses.   The applicant requested the Regional Court to take further evidence.   He requested the hearing of B., a former employee of the ALAG Bank, in order to prove that he could only dispose of the firm after September 1982 and G., in order to prove that he was not aware that the firm had been overdebted.   Furthermore he requested the production of the files of the bankruptcy proceedings in order to establish for what reason the As. company had requested the opening of bankruptcy proceedings and the production of the files of the inheritance proceedings.        The Regional Court dismissed these requests as it found that the evidence requested was irrelevant for the proceedings.   It was not necessary to hear B. since the accounting expert found that the unsuccessful transaction with the ALAG Bank had no effect on the applicant's financial situation nor contributed to his insolvency.   It was also unnecessary to hear G. because it was irrelevant to the proceedings whether the applicant was overdebted since the relevant law required insolvency and the applicant himself had admitted that in 1982 there had been no more liquid means to honour his debts.   The files of the bankruptcy proceedings were irrelevant because it was of no importance to the charge against the applicant for which reasons a creditor had applied for bankruptcy proceedings.   Lastly, also the files of the inheritance proceedings were not necessary as the Regional Court accepted the applicant's submissions regarding the relevant dates of these proceedings.        On 17 October 1989 the Regional Court, in separate proceedings, convicted the applicant of uttering dangerous threats against his divorced wife and imposed a further conditional prison sentence of four months.        The applicant appealed against both judgments, submitting that in the proceedings on the charge of negligent bankruptcy the Regional court had failed to take the evidence he had requested.   The public prosecutor did not lodge any appeals and, accordingly, the rules on reformatio in pejus applied in the appeal proceedings.        On 21 March 1990 the Court of Appeal (Oberlandesgericht) requested the police to find out the applicant's whereabouts.   The Court of Appeal noted that the applicant had been summoned to a court hearing scheduled for 18 April 1990 but this summons had been returned to the Court of Appeal with the comment that the applicant was not living at the address indicated.   The Court of Appeal noted further that since 12 February 1990 the applicant was registered as homeless and that his whereabouts were neither known to defence counsel nor to the receiver in the bankruptcy proceedings.        On 3 April 1990 the police informed the Court of Appeal that the applicant's whereabouts were still unknown.        On 23 April 1990 the Regional Court, upon a request by the Public Prosecutor's Office, issued a warrant of arrest against the applicant. It found that there existed the risk of the applicant's absconding in order to avoid further prosecution.        On 16 May 1990 the applicant was arrested.   On 17 May 1990 the Investigating Judge of the Vienna Regional Court ordered his detention on remand on the ground that there was a risk of the applicant's absconding.   The applicant appealed against the Investigating Judge's order submitting that he had never received a summons to the appeal hearing.        On 23 May 1990 the Judges' Chamber (Ratskammer) of the Vienna Regional Court dismissed the applicant's appeal.   It found that a risk of the applicant's absconding existed because he had left his former place of abode without informing the court of a place where he could be reached.   Since the applicant was still without a fixed abode the risk of his absconding continued to exist.   On the same day, in a subsequent decision, the Judges' Chamber ordered the applicant's release from detention on remand.   It found that by letter of 22 May 1993 the applicant had communicated a new address where he could be reached, accompanied by a statement of the owner of this place that the applicant was actually living there.   In such circumstances, there was no longer a risk of the applicant's absconding.        On 13 June 1990 an appeal hearing took place before the Court of Appeal in the presence of the applicant and his defence counsel.   As regards the applicant's conviction of negligent bankruptcy, the Court of Appeal dismissed the applicant's appeal.   It found in particular that the Regional Court, for the reasons given in its judgment of 8 August 1989, had correctly refused to take the evidence requested by the applicant as it was of no relevance to the proceedings.   However, by a separate judgment, the Court of Appeal quashed the Regional Court's judgment of 17 October 1989 and acquitted the applicant from the charge of uttering dangerous threats against his divorced wife. These judgments were served on the applicant on 3 July 1990.        By decision of 28 June 1990 the Regional Court decided that the period spent in detention on remand should be counted towards the conditional sentence imposed.   COMPLAINTS   1.    The applicant complains that his detention from 16 to 23 May 1990 violated Article 5 para. 1 (c) of the Convention.   He submits that there could not reasonably exist any risk of absconding in his case as his presence at the hearing was not necessary under Austrian law. Furthermore, it could not reasonably be considered necessary to force him to attend a hearing where he did not risk any worsening of his sentence as a result of the rules on reformatio in pejus.   2.    He further complains that the refusal of the Austrian courts to take the evidence he had requested in the criminal proceedings concerning the charge of negligent bankruptcy violated Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 17 December 1990 and registered on 21 March 1991.        On 30 June 1993 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 28 September 1993.   The applicant replied on 12 November 1993.   THE LAW   1.    The applicant complains that his detention from 16 to 23 May 1990 violated Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. This provision reads:        "Everyone has the right to liberty and security of person. No one      shall be deprived of his liberty save in the following cases and      in accordance with a procedure prescribed by law:      ...      c. the lawful arrest and detention of a person effected for the      purpose of bringing him before the competent legal authority on      reasonable suspicion of having committed an offence or when it      is reasonably considered necessary to prevent his committing an      offence or fleeing after having done so ... ".   2.    The Government submit that even assuming that the Court of Appeal's judgment of 13 June 1990 were to be regarded as the final domestic decision on the applicant's detention on remand, the applicant has failed to introduce his application within the six months' time limit provided for in Article 26 (Art. 26) of the Convention.   The relevant period started when this judgment was pronounced in court and not when it was subsequently served on the applicant.        This is disputed by the applicant, who claims that the six months' period must be calculated either from 3 July 1990, when the Court of Appeal's decision was served on him, or from the Regional Court's decision of 28 June 1990.        Under Article 26 (Art. 26) of the Convention, the Commission may only deal with an application after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.        The Commission observes that neither the Court of Appeal's judgment of 13 June 1990 nor the Regional Court's decision of 28 June 1990 concerning the counting of the period spent in detention on remand towards the sentence, contain any finds as to the lawfulness of the applicant's detention on remand.   Therefore, these decisions cannot be taken into account for the purposes of Article 26 (Art. 26) of the Convention as regards the applicant's complaint concerning his detention on remand.        The Commission further observes that on 17 May 1990 the applicant filed a request to the Judges' Chamber for release from detention on remand.   After this request was first refused on 23 May 1990 and then granted, a further appeal to the Court of Appeal, in which the applicant could have challenged the lawfulness of his detention on remand, was no longer possible because he had already been released on 23 May 1990.   However, after his release the applicant could have instituted proceedings for compensation for allegedly unlawful detention under Section 2 para. 1 (a) of the Criminal Proceedings Compensation Act.        The Commission previously considered that where no other remedy is available to challenge the lawfulness of detention on remand, the proceedings under this Act form part of the domestic remedies to be exhausted under Article 26 (Art. 26) of the Convention (No. 7950/77, Dec. 4.3.80, D.R. 19 p. 213, at p. 216).   As the applicant did not introduce such proceedings, the Commission finds that he failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention.        It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.    The applicant further complains that the refusal of the Austrian courts to take the evidence he had requested in the criminal proceedings concerning the charge of negligent bankruptcy violated Article 6 para. 1 (Art. 6-1) of the Convention.        The Government submit that the applicant has failed to comply with the six months' time-limit under Article 26 (Art. 26) of the Convention as this time limit started to run from the date of the public pronouncement of the Court of Appeal's judgment of 13 June 1990, the date on which this judgment has been served on the applicant being irrelevant.   This is disputed by the applicant.        However, the Commission need not determine this issue because the complaint is in any event manifestly ill-founded for the following reasons.        It seems appropriate to look at the applicant's complaints relating to the taking of evidence from the point of view of paragraphs 1 and 3 of Article 6 (Art. 6-1, 6-3) taken together, especially as the guarantees in paragraph 3 (Art. 6-3) represent aspects of the concept of a fair trial contained in paragraph 1 (Art. 6-1) (Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).        Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, insofar as material to the case, read as follows:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair ... hearing ... by [a] ...      tribunal ...        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 ..."        As a general rule, it is for the national courts to assess the evidence before them   as well as the relevance of the evidence which the defendants seek to adduce.   More specifically, Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses, in the autonomous sense given to that word in the Convention system; it does not require the attendance and examination of every witness on the accused's behalf (see Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A No. 158, para. 89; Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para.33)).   It is accordingly only in "exceptional circumstances" that the failure to hear a person or to allow the production of certain documents can be considered as incompatible with Article 6 (Art. 6) (see Bricmont judgment of 7 July 1989, loc. cit.).        In the present case, the applicant's requests to hear further witnesses and to have produced certain documents were duly considered by the competent courts and refused for their lack of relevance, taking into account the results of the Regional Court's taking of evidence as a whole.   Having regard to all material before it, the Commission finds no sufficient grounds to form the view that there were any special circumstances which could prompt the conclusion that the failure to take further evidence was incompatible with Article 6 (Art. 6) of the Convention.        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.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)