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. 25494/94                       by Werner PUTZ                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 18 October 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                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  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 7 September 1994 by Werner PUTZ against Austria and registered on 26 October 1994 under file No. 25494/94;        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, as they have been submitted by the applicant, may be summarised as follows.        The applicant, born in 1961, is an Austrian national.   When lodging his application he was detained at a prison in Hollabrunn. In the proceedings before the Commission he is represented by Mr. K. Bernhauser, a lawyer practising in Vienna.        On 22 October 1993 the Court of Assizes (Geschworenengericht) of the Vienna Regional Court (Landesgericht), sitting with a jury, convicted the applicant of aggravated rape and rape and further sexual offences by intimidation or coercion as well as of deprivation of liberty, all offences on several counts, and also of having resisted a public officer in the exercise of this duties.   The applicant was acquitted of the charges of theft.   He was sentenced to seven years' imprisonment.        As regards the above offences the Court of Assizes established the following facts.        On 9 January 1993 the applicant had raped the prostitute Ms. S. in Vienna, using violence and intimidating her with an electro-shock device.   At the end of November or beginning of December 1992 he had raped the prostitute Ms. B. in Salzburg, using violence and threatening her with murder and keeping her detained in his car for about four hours; and that he had raped her again on 20 December 1992, threatening her with murder and using violence as well as keeping her detained in his car for four and a half hours.        On 21 December 1992 he had raped the prostitute Ms. L. in Salzburg, using again an electro-shock device.   At the beginning of November 1992 he had raped the prostitute Ms. B. in Salzburg, threatening her with murder and keeping her detained in his car for about three hours.        In mid-december 1992 he had forced Ms. Y. in Salzburg to perform indecent acts, using violence and threatening her with murder, and kept her detained for about six and a half hours.        He had further committed coercion on various counts.   On 9 January 1993 he had forced the prostitute Ms. S. in Vienna to perform various acts, using violence, in particular an electro-shock device, and threatening her with murder.   At the end of November or beginning of December 1992, he had forced the prostitute Ms. B. in Salzburg to act against her will, threatening her with murder and using violence. In mid-december he had intimidated Ms. Y. and forced her to act against her will.   On 21 December 1992 he had forced the prostitute Ms. L. to perform acts against her will.        Furthermore, on 9 January 1993 the applicant had accelerated his car and driven towards the Police Officer Sch. who had given signs to stop the applicant.   The Police Officer had to jump aside in order not to be run over.        In these and the ensuing proceedings the applicant was assisted by defence counsel.        On 5 May 1994 the Austrian Supreme Court (Oberste Gerichtshof) dismissed the applicant's plea of nullity (Nichtigkeitsbeschwerde). Upon the appeal of the Prosecutor's Office (Staatsanwaltschaft), it increased the sentence to nine years' imprisonment and referred the applicant to this decision in respect of his appeal against sentence.        The Supreme Court considered in particular that, in respect of the conviction of aggravated rape, the Court of Assizes had correctly qualified the applicant's conduct as grave violence.   Contrary to the applicant's submissions, "grave violence" was not limited to the use of superior physical force which, in order to overcome the victim's real or supposed resistance would reach a high degree of intensity or dangerousness, but also extended to a continued resort to acts of violence of a lower degree which, due to their continuation, had the same effects.   These conditions were met in the applicant's case, as the victim had been tormented for a longer period of time. Furthermore, intimidation did not necessarily require intimidating statements, but a conduct could in itself be intimidating in the particular circumstances.   The Supreme Court also dismissed the applicant's argument that the conviction of having committed deprivation of liberty to the disadvantage of Ms. Y. did not prevent, for legal reasons, his conviction of coercion regarding acts during the deprivation of liberty.   As regards his further complaints about alleged legal errors, the Supreme Court found that the applicant had failed to present them in due form.        In respect of the applicant's procedural complaints, the Supreme Court found that the Court of Assizes had correctly refused the applicant's request to take evidence on the question whether the use of an electro-shock device could constitute grave violence. Considering that the grave violence resulted from the continued resort to acts of violence, the question of whether one of the acts concerned constituted as such grave violence was irrelevant.   His further requests for an examination of his car were not conclusive and could not call the credibility of the witness Ms. S. into question.   In any event, he had failed to specify at the trial that the requests in question aimed at casting doubt upon the witness's credibility. Moreover, the applicant had failed to show any reasons requiring the taking of further expert evidence as to his criminal responsibility at the time of the offences.   In this respect, the Supreme Court noted that the Court of Assizes, at the trial, had heard the opinions of a psychiatric expert and of a psychological expert that there were no indications that the applicant had lacked criminal responsibility at the time of the offences.   The Supreme Court also confirmed the Court of Assizes refusal to take evidence as to the regular standing-place of the prostitute Ms. B., finding that this matter was irrelevant.   The Supreme Court finally found that the applicant's further submissions did not raise any substantial doubts as to the assessment of evidence by the Court of Assizes.        Having regard to the seriousness of the crimes committed by the applicant, the Supreme Court increased the sentence in accordance with the appeal lodged by the Prosecutor's Office.        The decision was served on 30 May 1994.   COMPLAINTS        The applicant complains about his conviction by the Court of Assizes of the Vienna Regional Court of 22 October 1993 and the alleged unfairness of the court proceedings concerned.   He considers in particular that the Court of Assizes unduly dismissed his request to take evidence on the question whether using the electro-shock device concerned could be regarded as grave violence, whereby he had also offered at the trial to demonstrate on himself the effects of the device.   The applicant invokes Article 6 para. 3 of the Convention.   THE LAW        The applicant complains about his conviction by the Court of Assizes of the Vienna Regional Court of 22 October 1993, as confirmed by the Supreme Court, and also of the court proceedings concerned.        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 only 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 (cf. No. 21283/93, Dec. 5.4.94, D.R. 77-B, pp. 81, 88 and Eur. Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288, p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269, p. 17, para. 29.        The applicant alleges a violation of Article 6 para. 3 (Art. 6-3) of the Convention in that he did not have a fair trial, in particular that the Court of Assizes refused his request to take evidence as to the functioning of the electro-shock device used by him in the course of his offences.   His submissions about the conduct of the proceedings relate in particular to the taking and assessment of evidence.        It seems appropriate to look at these complaints 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 (Art. 6), so far as relevant, provides 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:      ...              b.     to have adequate time and facilities for the      preparation of his defence;              c.     to defend himself in person or through legal      assistance ...              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 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 (cf., Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89; Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para. 33).        The Commission notes that the Court of Assizes, as confirmed by the Supreme Court, regarded the taking of evidence requested by the applicant as irrelevant in the light of their interpretation of the relevant legal provision of aggravated rape, presupposing the use of grave violence.   The Supreme Court confirmed in particular the Court of Assizes' interpretation that the term "grave violence" was not limited to the use of superior physical force which, in order to overcome the victim's real or supposed resistance would reach a high degree of intensity or dangerousness, but also extended to a continued resort to acts of violence of a lower degree which, due to their continuation, had the same effects.   According to the Court, these conditions were met in the applicant's case, as the victim had been tormented for a longer period of time.   In these circumstances, the Supreme Court found that the applicant's requests for the taking of evidence on the question whether the use of an electro-shock device could constitute grave violence had been correctly been dismissed as irrelevant, given that the qualification as "grave violence" resulted from the continued resort to acts of violence over a longer period of time.        In these circumstances, the Commission finds no sufficient grounds to form the view that there were any special circumstances in the present case which could prompt the conclusion that the Court of Assizes's taking of evidence, as confirmed by the Supreme Court, was incompatible with Article 6 (Art. 6) of the Convention.        Moreover, having regard to the conduct of the proceedings against the applicant as a whole, the Commission finds no other indication of unfairness.   In particular his submissions do not show that, assisted by counsel, he could not duly present his arguments in defence or could not effectively exercise his defence rights.        Accordingly, there is no appearance of a violation of Article 6 (Art. 6) of the Convention.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).        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)