CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 janvier 1996

.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. 22342/93                       by Erol DÜR                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 16 January 1996, 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. 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 17 June 1993 by Erol DÜR against Austria and registered on 26 July 1993 under file No. 22342/93;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 23 January 1995 and the observations in reply submitted by the applicant on 17 March 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Turkish national born in 1964 and residing in Vienna.   Before the Commission he is represented by Mr. H. Pochieser, a lawyer practising in Vienna.         The facts, as they have been submitted by the parties, may be summarised as follows.   A.     Particular circumstances of the case         On 21 November 1991 the chief of the Deutsch Wagram Police Station (Postenkommandant) laid a criminal information against the applicant and his brother I. with the Korneuburg Public Prosecutor's Office (Staatsanwaltschaft).   According to the criminal information, on 21 November 1991, at 5.20 hours, the applicant's brother had tried to resist his arrest, which had been ordered with a view to his deportation to Turkey, by hitting and kicking the police officers concerned.   The applicant had also resisted public authority in that he too had attacked the police officers.   The applicant and his brother had finally been arrested.   The applicant's brother had then been brought to the airport and at 9.30 hours had been handed over to the airport police for deportation.   At about 11.30 hours the detention order (Schubhaftbescheid) had been served on counsel for the applicant's brother. The deportation had taken place at 13.15 hours. The applicant himself had been released at 11.30 hours.   The Public Prosecutor, who had been informed of the events by telephone, had made no objections to the deportation of the applicant's brother, as he found that any possible criminal prosecution could be taken over by the Turkish authorities.         On 26 November 1991 the Korneuburg Public Prosecutor filed a bill of indictment against the applicant charging him with attempted resistance to public authority (versuchter Widerstand gegen die Staatsgewalt).   The Public Prosecutor requested that the five police officers concerned and the applicant's brother be heard as witnesses at the trial.         On 17 January 1992 the applicant, who was then assisted by counsel, requested that his brother and A.T., who had been present at the events on 21 November 1991, be heard as witnesses.         On 23 March 1992 the trial (Hauptverhandlung) of the applicant took place before the Korneuburg Regional Court (Kreisgericht).   In the course of the trial the Regional Court heard the five police officers and A. T. as witnesses.   As regards the events in the morning of 21 November 1991, A.T. stated that after the police officers had arrived he had left to make a telephone call. On his return he had told the applicant, who had a heated discussion with the police officers, to calm down and had then started to prepare breakfast.   He had not paid attention to what was going on around him.   The applicant's counsel requested again that the applicant's brother be heard as a witness.   This request was refused by the Regional Court, which found that, since he had been deported to Turkey, he had to be considered as an unavailable means of proof.         On the same day the Regional Court convicted the applicant of attempted resistance to public authority and sentenced him to four months' imprisonment suspended for a probationary period of three years.   The Regional Court, having regard to the evidence taken, found that the applicant had hit and kicked the police officers who carried out his brother's and his own arrest.   The arrest had initially been carried out by two police officers, who, in view of the resistance, had called for reinforcement.   Subsequently three more police officers had arrived and it had taken three police officers to break the applicant's resistance and to carry out his arrest.         On 24 June 1992 the applicant introduced an appeal with the Court of Appeal.   He submitted that the Regional Court had wrongly refused to hear his brother as a witness for the defence.   He submitted further that in the meantime his brother had introduced a complaint with the Independent Administrative Panel (Unabhängiger Verwaltungssenat) complaining that his arrest and deportation to Turkey had been unlawful.         On 29 June 1992 the Lower Austrian Independent Administrative Panel, upon the complaint by the applicant's brother about his arrest, subsequent detention and deportation to Turkey, decided that the applicant's brother's arrest on 21 November 1991 at 5.30 hours and his detention until 11.30 hours, when the detention order was served on the lawyer, had been unlawful and dismissed the remainder of the complaint. The Administrative Panel found that, at the time of the arrest of the applicant's brother, the order for detention with a view to his deportation had not yet been served on the lawyer of the applicant's brother.   Therefore the arrest and the detention until 11.30 hours had been unlawful.   The subsequent detention and the deportation to Turkey, however, had been based on a lawful and enforceable detention order and on an enforceable residence prohibition.         On 25 August 1992 a hearing took place before the Court of Appeal on the applicant's appeal, in the presence of the applicant and his counsel.   The applicant filed the decision of the Administrative Panel of 29 June 1992.         On the same day the Court of Appeal dismissed the applicant's appeal against his conviction but replaced the prison sentence by a fine of 100 daily rates of 100 AS each.         The Court of Appeal found that the Regional Court had acted correctly when refusing to hear the applicant's brother as a witness. His brother was not a means of evidence available to the court as he was in Turkey and a residence prohibition in Austria had been imposed on him. Furthermore it noted that the public prosecutor had agreed to the applicant's brother's deportation because he had found that any possible criminal prosecution could be taken over by the Turkish authorities.         The Court of Appeal had no doubts as to the Regional Court's assessment of evidence, which it found sufficient in that, based on the personal impression the witnesses had made on the Regional Court, it had provided the main reasons for considering the witnesses credible, and was in accordance with the principles of logic and the contents of the file.         The Court of Appeal further found that the Administrative Panel's decision of 29 June 1992 had no effect on the lawfulness of the applicant's own arrest, which was not based on the detention order.   B.     Relevant domestic law         Section 6 para. 1 of the Aliens Police Act (Fremdenpolizei- gesetz), as in force at the relevant time, provides as follows:   [Translation]         "An alien on whom a residence prohibition has been imposed must       leave the area to which the prohibition applies within a week       after the decision has become legally effective.   While the       prohibition is in force, he must not return to the area without       official permission."   [German]         "Der Fremde, gegen den ein Aufenthaltsverbot erlassen worden ist,       hat das Gebiet, in dem ihm der Aufenthalt verboten ist, innerhalb       einer Woche nach Rechtskraft des Bescheides zu verlassen.   Er       darf dieses Gebiet während der Geltungsdauer des       Aufenthaltsverbotes ohne Bewilligung nicht wieder betreten."   COMPLAINTS   1.     The applicant complains under Article 6 para. 1 and para. 3 (d) of the Convention that the criminal proceedings conducted against him were unfair.   He submits that the Public Prosecutor had agreed to the removal of his brother to Turkey, although he was the only important witness for the defence.   He was thus deprived of the most important exonerating evidence because the Regional Court and the Court of Appeal subsequently refused to summon this witness for the defence.   2.     He further complains under Article 13 of the Convention that Austrian law does not provide for a review by the Constitutional Court of judgments of criminal courts as to their compliance with the provisions of the Convention.   3.     The applicant also complains under Article 2 of Protocol No. 7 to the Convention that the Court of Appeal did not repeat the taking of evidence but simply confirmed the findings of the Regional Court.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 17 June 1993 and registered on 26 July 1993.         On 12 October 1994 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 23 January 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 17 March 1995.   THE LAW   1.     The applicant complains under Article 6 para. 1 and para. 3 (d) (Art. 6-1) of the Convention that the criminal proceedings conducted against him were unfair because the Austrian courts refused to summon his brother, who was able to provide the most important exonerating evidence, as witness for the defence.         Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, insofar as relevant, read as follows:         "1.   In the determination of ... of any criminal charge against       him, everyone is entitled to a fair ... hearing   ... by an       independent and impartial tribunal established by law.   ...         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 ..."         The Government submit that according to the Convention organs' case-law Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does not grant an unlimited right to question or summon defence witnesses.   The trial court can refuse to hear witnesses if it finds that the statements   expected are not relevant to the establishment of the truth.   In the present case the Regional Court heard six witnesses, including A.T., who had been called as witness for the defence.   Not even A.T. supported the applicant's defence according to which he had not resisted the police officers and had remained calm throughout the events.   Rather, A.T. stated that at a certain moment he had told the applicant to calm down.   In these circumstances the Austrian courts could reasonably have concluded that the statements of the applicant's brother would have been irrelevant to the case.         Furthermore the Austrian courts had found correctly that the applicant's brother did not offer an available means of evidence.   The courts could have asked the Turkish authorities to question the applicant's brother under letters rogatory, but since the courts would not have got a direct impression of the witness and such proceedings were very lengthy this would not have been a very effective means of gathering evidence.   Moreover, the Austrian courts were unable to summon the applicant's brother to appear at the trial because a residence prohibition had been imposed on him.   The courts were not competent to lift the residence prohibition nor could they formally request the competent administrative authorities to issue a permission under Section 6 para. 1 in fine of the Aliens Police Act to the applicant's brother allowing him to re-enter Austria.         The applicant submits that the Regional Court heard as witnesses only several police officers and A.T., who, according to his statement, did not himself see the events or could not remember them.   Therefore his brother was the only eye witness who could have exonerated him. The Regional Court also did not consider the statements of his brother to be irrelevant for the proceedings.   It only found that this witness was unobtainable, which, however, was not correct.         For the reasons given by the Government it would not have been very helpful to have his brother questioned in Turkey under letters rogatory.   However the Austrian courts could have summoned his brother to appear at the trial.   In this respect the Government's description of the legal situation under Section 6 para. 1 of the Aliens Police Act is misleading.   It is true that the courts themselves could not have granted permission to the applicant's brother to return to Austria nor could they have requested the administrative authorities to issue a permission under Section 6 para. 1 of the Aliens Police Act to the applicant's brother.   However, if the Austrian courts had summoned the applicant's brother, he could have requested the administrative authorities to grant him a permission to re-enter Austria under Section 6 para. 1 of the Aliens Police Act.   According to this provision a person on whom a residence prohibition has been imposed may be allowed to re-enter Austria for a short stay if this is necessary in the private or public interest.   According to case-law of the Administrative Court the necessity to appear before a court is a valid reason for applying for a permission under Section 6 para. 1 of the Aliens Police Act.         The Commission finds that this complaint involves serious issues of fact and law under the Convention, the determination of which must be reserved to an examination of the merits.   This part of the application cannot therefore be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, no other ground for declaring it inadmissible having been established.   2.     The applicant complains under Article 13 (Art. 13) of the Convention that Austrian law does not provide for a review by the Constitutional Court of judgments of criminal courts as to their compliance with the provisions of the Convention.         The Commission notes that Austrian law provides a remedy in criminal proceedings, namely a right of appeal to the Court of Appeal, which the applicant pursued in the present case. In these circumstances the Commission considers that Article 13 (Art. 13) cannot be interpreted as requiring the provision of a further remedy by way of review by the Constitutional Court.         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.   3.     The applicant finally complains that the Court of Appeal did not repeat the taking of evidence but simply confirmed the findings of the Regional Court.   He relies on Article 2 of Protocol No. 7 (P7-2), which, insofar as relevant, reads as follows:         "1.   Everyone convicted of a criminal offence by a tribunal       shall have the right to have his conviction or sentence reviewed       by a higher tribunal.   The exercise of this right, including the       grounds on which it may be exercised, shall be governed by law."         The Commission observes, however, that the Court of Appeal, after a public hearing, dismissed the applicant's appeal as regards his conviction, but amended the sentence.   The Court of Appeal did not take any further evidence, which in fact it could have done, because it had no doubts as to the Regional Court's assessment of evidence.         In such circumstances the Commission finds that there is no appearance of a violation of the applicant's right to review of his conviction or sentence by a higher tribunal as guaranteed by Article 2 of Protocol No. 7 (P7-2).         It follows that also 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 ADMISSIBLE, without prejudging the merits, the       applicant's complaint about the alleged unfairness of the       criminal proceedings conducted against him;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                       (C.L. ROZAKIS)