CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 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. 24154/94                       by Heinz RABENSEIFNER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 28 February 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. MARXER                  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 20 August 1993 by Heinz RABENSEIFNER against Austria and registered on 18 May 1994 under file No. 24154/94;        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 of the case as they have been submitted by the applicant, may be summarised as follows.        The applicant, born in 1948, is an Austrian national.   When lodging his application, he was detained in a prison at Hollabrunn.        In 1988 criminal investigations were started against the applicant on the suspicion of his having committed theft and fraud.        On 24 August 1989 the Vienna Public Prosecutor's Office (Staatsanwaltschaft) drew up the bill of indictment against the applicant charging him with thirty-three counts of theft, including twenty-seven counts of theft of cars, as well as of two counts of fraud.   The Prosecutor's Office, referring to the relevant provisions of the Penal Code (Strafgesetzbuch), considered that between January 1986 and April 1988 the applicant, as a member of a gang operating from Hungary, had been involved in the theft of further specified cars in Vienna.   Moreover, between June and December 1988 he had broken into cars and stolen various objects and also committed fraud.   The Prosecutor's Office stated that the applicant had admitted his guilt except for the charges relating to theft of cars.        In the criminal proceedings against him, the applicant was assisted by defence counsel.        On 8 February 1990 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) convicted the applicant of altogether seventeen counts of receiving stolen cars, of four counts of theft and of two counts of fraud and sentenced him to four years' imprisonment. The applicant was acquitted of the remainder of the charges.   The Court found that between March 1986 and May 1988 the applicant had driven seventeen stolen cars from Austria to Hungary and must have been aware of the possibility that these cars had been stolen.   The Court noted the applicant's defence according to which he had not stolen the cars himself and had thought that the cars had been lawfully acquired.   The Court considered that the applicant's defence according to which he had not stolen the cars himself could not be refuted.   However, taking into account the circumstances in which the various cars were handed over to the applicant, the Court was convinced that the applicant must have been aware of the possibility that the cars had been stolen.   The Court dismissed the applicant's requests for the hearing of further witnesses on the grounds that the applicant had admitted having transported seventeen cars to Hungary and that the witnesses could not give any evidence regarding the question whether or not he had known that the cars had been stolen.        On 17 May 1990 the Austrian Supreme Court (Oberster Gerichtshof), upon the applicant's plea of nullity (Nichtigkeitsbeschwerde), quashed his conviction of receiving stolen cars and his sentence and, to this extent, referred the case back to the Regional Criminal Court.   The remainder of the applicant's plea of nullity was dismissed.   The Supreme Court found that the Criminal Court had incorrectly refused the applicant's requests for the taking of further evidence.   The Supreme Court noted that the witnesses named by the defence were the applicant's alleged business partners and could possibly give evidence as to whether the applicant had known about the fact that the cars concerned had been stolen.        On 31 August 1990 the Vienna Regional Criminal Court, in proceedings separated from the main proceedings, fixed a sentence of two and a half months' imprisonment in respect of the applicant's conviction to the extent that it had been confirmed by the Supreme Court.        In the resumed main proceedings the Vienna Regional Court arranged for the hearing of a witness in Luxembourg in proceedings under letters rogatory.   The witness G., one of the Hungarian accomplices having received the cars concerned in Hungary, was questioned by an Investigating Judge in the presence of a sworn interpreter of Hungarian origin and also in the presence of a Public Prosecutor and the applicant.   According to the record of the questioning, the applicant put questions to the witness concerned.        On 10 November 1992, in the resumed main proceedings, the Vienna Regional Criminal Court convicted the applicant of seventeen counts of receiving stolen cars and, taking the sentence imposed on 31 August 1990 into account, sentenced him to a further eighteen months' imprisonment.        The Court found that between March 1986 and May 1988 the applicant had driven seventeen stolen cars from Austria to Hungary. However, it could not be established that the applicant had himself stolen these cars.   The Court proceeded on the basis of the applicant's statements according to which he had transported seventeen cars from Vienna to Hungary.   As regards his defence that he had believed that these cars were lawfully acquired and not stolen, the Court noted that G., one of the accomplices having received the cars concerned in Hungary, had stated that they had never raised the issue of the origin of the cars in their conversations.   Nevertheless, having regard to the rather doubtful circumstances of the trips, the Court came to the conclusion that the applicant must have been aware of the possibility that the cars concerned had been stolen.        In its judgment, the Court dismissed the applicant's request to produce the Hungarian files concerning criminal proceedings against an accomplice prosecuted in Hungary which could, according to the applicant, disclose further members of the gang as possible witnesses on the question of whether the origin of the cars concerned had been disguised by the persons involved in the events.   In this respect, the Court noted that the facts to be proven had already been established on the basis of the applicant's statements and the testimony of the witness heard in proceedings under letters rogatory.   The applicant's similar request to produce the criminal files concerning a person involved in the above activities of the gang was dismissed for the same reasons.   The applicant's request to investigate with a view to hear as a witness a Hungarian accomplice was dismissed on the ground that the applicant's statements on this witness were too vague to enable his identity and whereabouts to be established.    The applicant's request to hear the Hungarian accomplice L. was dismissed on the ground that L. had absconded in order to evade prosecution and his whereabouts were unknown.   The applicant's request to hear G. again as a witness was dismissed on the ground that there were no indications to support the applicant's allegations of procedural shortcomings on the occasion of G.'s hearing in proceedings under letters rogatory.   As regards the applicant's request to produce L.'s Hungarian criminal file in order to prove that L. had often made false statements incriminating others, the Court noted that translations of the relevant parts of the files concerned were already available and that its judgment was not based on any of L.'s statements incriminating the applicant.        On 27 May 1993 the Supreme Court dismissed the applicant's plea of nullity.   The Supreme Court found in particular that the Regional Criminal Court's decisions to dismiss the applicant's various requests for the taking of further evidence or for further investigation had not violated his defence rights.   As regards the witnesses I.M. and L. the Supreme Court noted that both were out of reach and that any attempt to hear them was therefore bound to fail.   As regards the request to produce the L.'s criminal files, the Supreme Court considered that the applicant's conviction was not based on L.'s incriminating statements, and that the question of L.'s credibility was therefore irrelevant. The Supreme Court also confirmed the Regional Criminal Court's reasoning that the applicant must have been aware of the possibility that the cars concerned had been stolen.        On 22 July 1993 the Vienna Court of Appeal dismissed the applicant's appeal against sentence (Berufung).   COMPLAINTS        The applicant complains about his conviction and the alleged unfairness of the criminal proceedings against him.   He considers in particular that the Austrian courts wrongly found him guilty of receiving stolen cars.   Moreover, in the bill of indictment, he had been charged with theft - rather than with receiving stolen cars - and he had, therefore, not been able properly to prepare his defence against those charges.   Furthermore, he complains about the taking and assessment of evidence, in particular that he had not been able to put any questions to L.   He relies on Article 6 paras. 1 and 3 (a) and (d) of the Convention.   THE LAW   1.    The applicant complains about his conviction and the alleged unfairness of the criminal proceedings against him.   He relies on Article 6 paras. 1 and   3 (a) and (d) (Art. 6-1, 6-3-a, 6-3-d) of the Convention.        Article 6 (Art. 6) of the Convention, 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 an      independent and impartial tribunal established by law. ...      ...      3.     Everyone charged with a criminal offence has the following      minimum rights:              a.     to be informed promptly, in a language which he      understands and in detail, of the nature and cause of the      accusation against him;      ...            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.      ..."        With regard to the judicial decision 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 to 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, p. 81; 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 has lodged various complaints about the proceedings.   The Commission finds appropriate it to examine these submissions from the angle of paragraph 1 (Art. 6-1) taken together with the principles inherent in paragraph 3 of Article 6 (Art. 6-3), as the guarantees in paragraph 3 are specific aspects of the general concept of a fair trial set forth in paragraph 1 (Art. 6-1) (Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).        As regards the applicant's complaint that he had not been duly informed about the charge of receiving stolen goods, the Commission recalls that Article 6 para. 3 (a) (Art. 6-3-a) gives an accused person the right to be adequately informed of the cause and the nature of the accusation in order to enable him to prepare his defence accordingly (Eur. Court H.R., Brozicek judgment of 19 December 1989, Series A no. 167, pp. 18-19, paras. 38-42; No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106).        The Commission notes that, in the bill of indictment of 1989, the applicant was charged with, inter alia, having stolen numerous cars in Austria which he had later driven to Hungary.   Following the first set of trial proceedings, the Vienna Regional Criminal Court, in its judgment of 1990, found that there was no sufficient proof in respect of the charge that he had stolen the cars concerned.   However, according to the findings of the Court, the facts that he had transported the stolen cars to Hungary and must have been aware of the possibility that they had been stolen, constituted the offence of receiving stolen cars.   The Supreme Court quashed this conviction on the ground that the applicant's requests to take evidence on the question of whether he had known of the unlawful origin of the cars had been unduly dismissed. In the second set of proceedings following the applicant's successful plea of nullity, the charges of numerous counts of theft remained the principal charges against the applicant. However, the subsidiary question of whether he had committed receiving stolen cars was, in the light of the Supreme Court judgment, also pursued in these proceedings, and in particular in the applicant's defence.        The Commission considers that the bill of indictment, to the extent that it addressed the factual elements constituting the offence of receiving stolen goods merely as part of the principal charge of theft, might not be regarded as adequate information within the meaning of Article 6 para. 3 (a) (Art. 6-3-a).   However, already in the course of the first set of trial proceedings, the applicant's defence covered not only the principal charges of theft, but also the subsidiary offence of receiving stolen cars.   Following his successful plea of nullity against his conviction of receiving stolen cars in 1990, the applicant pursued his defence against the subsidiary charge of receiving.   There is no indication that the applicant, assisted by defence counsel, had not been informed adequately about the nature and cause of the accusations against him to the extent necessary to prepare his defence and exercise his defence rights.        With regard to the applicant's complaints about the Regional Criminal Court's taking and assessment of evidence, 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).   However, it is the task of the Convention organs to ascertain whether the taking and assessment of evidence rendered the proceedings as a whole unfair.   In this respect, the Commission also recalls that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument (cf. Eur. Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10, paras. 26-27).        In the present case, the applicant submits in particular that he could not put questions to the witness L.   However, the Commission notes that the Regional Criminal Court dismissed the applicant's request to hear the Hungarian accomplice L. on the ground that L. had absconded in order to evade prosecution and his whereabouts were unknown.   Furthermore, his request to produce the Hungarian criminal file regarding L. in order to prove that L. had often made wrong statements incriminating others, was dismissed on the grounds that translations of the relevant parts of the files concerned were already available and that the Regional Criminal Court's judgment was not based on any of L.'s statements incriminating the applicant.   The Supreme Court confirmed that the applicant's defence rights had not been disregarded, considering in particular that two witnesses L. were out of reach and that the applicant's conviction was not based on L.'s incriminating statements.        Having regard to all material before it, the Commission finds no sufficient grounds to conclude that the failure to hear further witnesses or to investigate further with a view to identify further witnesses was incompatible with Article 6 (Art. 6).        In sum, taken individually none of the matters complained of by the applicant discloses any appearance of a violation of the rights of the defence under Article 6 (Art. 6) of the Convention.   Furthermore, the Commission finds that, taken cumulatively, the alleged procedural deficiencies did not result in rendering unfair, for the purposes of Article 6 (Art. 6), the criminal proceedings considered as a whole.        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, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)