CEDH · CASELAW;REPORTS;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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 19125/91                           Konrad Bechter                               against                               Austria                      REPORT OF THE COMMISSION                    (adopted on 18 October 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-28) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-27). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (para. 28). . . . . . . . . . . . . . . . . . . . .5   III. OPINION OF THE COMMISSION      (paras. 29-35) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 29). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 30). . . . . . . . . . . . . . . . . . . . .6        C.    As regards Article 6 para. 1 of the Convention           (paras. 31-34). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 35). . . . . . . . . . . . . . . . . . . . .7   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . .8   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant, a police officer, is an Austrian citizen, born in 1941 and resident in Krumbach.   He was represented before the Commission by Mr. Ludwig Weh, a lawyer practising in Bregenz.   3.    The application is directed against Austria.   The respondent Government were represented by Mr. F. Cede, Deputy Secretary General and Legal Counsel of the Austrian Federal Ministry of Foreign Affairs.   4.    The case concerns the complaint that in criminal proceedings against him the applicant was not communicated, for his comments, the observations ("croquis") which the Senior Public Prosecutor had submitted in respect of the applicant's appeal against his conviction and sentence.   The applicant invokes Article 6 para. 1 and 3 (d) of the Convention.   B.    The proceedings   5.    The application was introduced on 19 November 1991 and registered on 22 November 1991.   6.    On 13 October 1993 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints relating to the appeal proceedings and the submission of the "croquis".   7.    The Government's observations were submitted on 14 January 1994. The applicant replied on 9 March 1994.   8.    On 5 April 1995 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention relating to the use of the "croquis" in the appeal proceedings.   It declared inadmissible the remainder of the application.   9.    The text of the Commission's decision on admissibility was sent to the parties on 16 May 1995 and they were invited to submit such further information or observations on the merits as they wished.   No further submissions were however received from the parties.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, 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   12.   The text of this Report was adopted on 18 October 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   16.   On 29 January 1991 the applicant was convicted by the Feldkirch Regional Court (Landesgericht) of defamation (Verleumdung).   He was sentenced to a fine of 360 day-rates in the amount of AS 200 each.   17.   The court considered it to be established:   -     that the applicant had told a colleague, police officer A.M.,      that police officer H.S. had, upon the occasion of local      festivities, allowed his brother P., who was under the influence      of alcohol, to enter his car and drive away.        The court found the above statement to be untrue and made with the intent to wrongly incriminate H.S. with whom the applicant had had, for many years, an acrimonious relationship.   18.   The court further found that when heard in the above matter as an accused suspected of having committed defamation:   -     the applicant had told the investigating judge on      25 September 1990 that the alleged defamatory remark had been      made in good faith as one K.B. who had allegedly witnessed the      incident in question had informed him about it.        This statement made before the investigating judge was, according to the court's findings likewise untrue and defamatory as it incriminated K.B. of having wrongly denounced H.S. for having neglected his duties as a police officer.        The findings of the court were based on evidence given against the applicant by witnesses H.S., A.M., K.B., H.L. and A.S.   19.   K.B. denied as a witness having incriminated H.S. vis-à-vis the applicant.   He only admitted that he had met the applicant and his daughter at the local festivities in question and had conversed with them for a while.   In the course of the conversation he had mentioned having passed in his own car that of P. who seemed to be drunk as his face was all red.   K.B. denied however having spoken of H.S., P.'s brother, whom he had not seen at all.   20.   H.L., a senior police officer, stated that when he questioned the applicant about his remarks incriminating H.S. the applicant had replied that he knew from hearsay only that H.S. had not interfered when his brother decided to drive although he was drunk.   The applicant had however not been able to name a person who had given him the information about H.S.   21.   The applicant's daughter, A.S., gave evidence for her father stating that K.B. had told her father in her presence that H.S. had not interfered when his drunken brother P. drove away in his car.   The court considered however that this evidence was unreliable and contradicted by the evidence given by K.B. who was considered to be credible.   22.   The applicant's wife stated as witness that K.B. had confirmed in her and her daughter's presence on the occasion of a visit to their house that he had given the applicant the information about H.S. and his brother P.   The trial court considered however that the applicant had intentionally invited K.B. in order to fabricate evidence in his favour.   Neither the applicant's wife nor his daughter were considered to be credible.   23.   The defence requested an expert opinion on the question whether it had been possible for K.B. to recognise P. in the circumstances described by him as a witness and to see that his face was red.   The trial court rejected this request stating in an order given in the course of the trial that it had itself enough experience to decide this issue without the assistance of an expert.   24.   The applicant lodged an appeal complaining of his conviction and the sentence.   He argued, inter alia, that his rights had been violated in that his request to obtain an expert opinion had been rejected.   He also argued that there was not sufficient evidence to prove his guilt.   25.   The Senior Public Prosecutor (Oberstaatsanwaltschaft) submitted the following observations (croquis):        [Translation]        "The dismissal of the request to obtain a photometric expert      opinion did not violate the rights of the defence.   Reasons for      the dismissal were given at the trial and did not need to be      repeated in the judgment.   The request related to irrelevant      circumstances.   The appeal on points of law must therefore fail.        The trial court's assessment of the evidence is extensive and      convincing.   The reasons stated in the appeal do not give cause      to doubt the findings of the trial court.        The sentence likewise does not call for any correction."         [German]        "Durch die Abweisung des Beweisantrages auf Einholung eines      lichttechnischen Sachbefundes, die im Urteil nicht noch einmal      eigens begründet werden mußte, nachdem die Gründe dafür in der      Hauptverhandlung verkündet wurden, wurden Verteidigungsrechte des      Angeklagten nicht verletzt.   Mit diesem Beweisantrag sollten      nämlich nicht entscheidungswesentliche Umstände bewiesen werden.      Es versagt daher die Nichtigkeitsberufung.        Die Beweiswürdigung des Erstgerichtes ist ausführlich und      überzeugend.   Die Schuldberufung vermag keine Zweifel dagegen zu      erwecken.        Auch die Strafe gibt zu keiner Korrektur Anlaß."   26.   These observations were not communicated to the defence.   It is stated in the minutes concerning the appeal hearing on 15 May 1991 that a judge rapporteur summarised the case and issues and that subsequently the pleadings of the Public Prosecutor and the defence were delivered.   27.   On 15 May 1991 the appeal was rejected by the Innsbruck Court of Appeal (Oberlandesgericht) on the ground that the dismissal of the request for an expert opinion was unobjectionable as it was irrelevant whether K.B. had in fact been able to see that P. was red-faced or whether he only believed that he had seen this.   The appellate court further considered that the trial court's assessment of the available evidence was unobjectionable.   The sentence was considered to be lenient and likewise unobjectionable.   B.    Relevant domestic law   28.   At the relevant time it had been a standing practice that the Senior Public Prosecutor file a so-called croquis   in such cases as this was deemed appropriate. Such a croquis was not always and automatically communicated to the defendant as it was considered that the defence   could safeguard its rights by requesting leave to inspect the file under Section 82 of the Code of Criminal Procedure (see Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211, p. 28 para. 67).        In consequence of the Brandstetter judgment, Section 35 (2) of the Austrian Code of Criminal procedure was amended as follows:   [Translation]        "(2) If the Public Prosecutor at the Court of Appeal submits his      observations on a plea of nullity (Nichtigkeitsbeschwerde), an      appeal or a complaint, the Court of Appeal shall communicate      these observations to the person against whom criminal      investigations are pending (the accused, the person concerned)      and shall inform his of his right to comment on these      observations within an adequate period of time to be determined      by the court.   It can refrain from doing so, if the Public      Prosecutor confines himself to opposing without further      explanations the request set out in the appeal, if he only      submits a statement in favour of the person against whom criminal      investigations are pending or if the court allows the latter's      appeal."   [German]        "     Nimmt der Staatsanwalt bei einem Rechtsmittelgericht zu      einer Nichtigkeitsbeschwerde, einer Berufung oder einer      Beschwerde Stellung, so hat das Rechtsmittelgericht dem      Beschuldigten (Angeklagten, Betroffenen) diese Stellungnahme mit      dem Bedeuten mitzuteilen, dass er sich binnen einer      festzusetzenden angemessenen Frist hiezu äußern könne.   Diese      Mitteilung kann unterbleiben, wenn der Staatsanwalt sich darauf      beschränkt, dem Rechtsmittelbegehren ohne weitere Ausführungen      entgegenzutreten, er bloß zugunsten des Beschuldigten Stellung      nimmit, oder wenn dem Rechtsmittel des Beschuldigten Folge      gegeben wird"   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   29.   The Commission has declared admissible the applicant's complaint that in the appeal proceedings he was not given the opportunity to take cognisance of and comment on the observations submitted by the Senior Public Prosecutor.   B.    Point at issue   30.   The only point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) in the appeal proceedings on account of the fact that the Prosecution observations ("croquis") were not communicated to the defence.   C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   31.   The relevant part of Article 6 para. 1 (Art. 6-1) reads as      follows:             "In the determination ... of any criminal charge           against him, everyone is entitled to a fair and           public hearing ..."        The applicant alleges that on appeal he did not have a fair hearing on the ground that the Prosecution's "croquis" with observations on his appeal was not communicated to him.        The Government consider that communication had been unnecessary as the croquis did not, in their opinion, contain any relevant new argument and, in any case, arguments were discussed at the appeal hearing.   32.   The Commission recalls that the European Court of Human Rights has found a violation of the Convention where the Senior Public Prosecutor (Oberstaatsanwalt) filed submissions with the Court of Appeal of which the defence knew nothing (Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211, pp. 27-28, paras. 64-69). On the other hand, where the defence obtain a copy of the submissions of the Procurator General in advance of a hearing before the Supreme Court, there may well be no violation of Article 6 (Art. 6) of the Convention (Eur. Court H.R., Kremzow judgment of 21 September 1993, Series A no. 268-B, p. 42, paras. 48-50).   33.   In the present case the applicant did not receive the Senior Public Prosecutor's submissions to the Innsbruck Court of Appeal at all.   It is true, as the Government submit, that the observations were not, in any event, very detailed and did not contain any relevant new argument.   The principle of equality of arms does not, however, depend on further, quantifiable unfairness flowing from a procedural inequality:   it is inherently unfair for the prosecution to make submissions to a court of which the defence is unaware and on which the defence has no opportunity to comment (see M.B.A. v. Austria, Comm. Report 8.9.1994, pending before the European Court of Human Rights).   34.   The Commission therefore finds that the passing of submissions by the prosecution to the Court of Appeal in the present case was not compatible with the principle of equality of arms.        CONCLUSION   35.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the passing of a statement to the Court of Appeal by the Senior Public Prosecutor of which the applicant was not aware.   Secretary to the First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                          (C.L. ROZAKIS)