CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 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. 22925/93                       by Johannes KÖNIG                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  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 3 November 1993 by Johannes KÖNIG against Austria and registered on 16 November 1993 under file No. 22925/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 11 April 1995 to communicate the      application without asking the parties for observations on the      admissibility and merits and to await the Court's judgment in the      case of Bulut v. Austria;   -    the judgment of the Court in the case of Bulut v. Austria      (Eur. Court H. R., Bulut judgment of 22 February 1996, Reports      1996);   -     the Government's letter of 24 April 1996 and the applicant's      letter of 17 May 1996;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case, as submitted by the applicant, may be summarised as follows.        The applicant, born in 1953, is an Austrian national resident in Lustenau. In the proceedings before the Commission he is represented by Mr. W. Weh, a lawyer practising in Bregenz.     A.    The particular circumstances of the case        On 30 March 1989, in the late afternoon, a fire broke out on the ground floor of a house belonging to the applicant, in which he was, however, not living. It was extinguished by the fire-brigade. Fire broke out a second time, again on the ground floor of the house, in the evening of the same day and was again put out by the fire-brigade. In the early hours of 2 April 1989 a fire, which had broken out in the bed-room of the first floor, destroyed the house completely.        Subsequently, investigations concerning the suspicion of arson were carried out by the Criminal Department of the Vorarlberg Regional Police (Landesgendarmeriekommando). According to the applicant, police officer F., when questioning his neighbours, told them that he, the applicant, had suspected them of having set fire to his house. Six months after the fire, the applicant, allegedly with the permission of the Criminal Department demolished the ruins of his house, assuming that there would be no criminal proceedings against him. On 19 December 1989 the applicant complained to the Vorarlberg Public Security Authority (Sicherheitsdirektion) that the Criminal Department had not informed the Public Prosecutor's Office (Staatsanwaltschaft) of the proceedings.        On 15 October 1991 the Feldkirch Regional Court (Landesgericht) convicted the applicant of arson (Brandstiftung) and attempted fraud and sentenced him to eighteen months imprisonment, of which twelve months were suspended on probation. In these and the following proceedings the applicant was represented by counsel.        On 3 March 1992 the Supreme Court (Oberster Gerichtshof) quashed this judgment and referred the case back for rehearing.        On 30 September 1992 the Feldkirch Regional Court, after having held the trial on 24 August, 23 and 30 September 1992, again convicted the applicant of arson and attempted fraud and sentenced him to eighteen months' imprisonment, of which twelve months were suspended on probation.        The Court found that the applicant had wilfully caused all three fires himself and had subsequently requested payment from his insurance company. He had spent the afternoon of 30 March 1989 in and around the house with his then seven-year-old son and four-year-old nephew. He had lit the fire in the kitchen on the ground-floor using petrol and had, at the time the fire was detected, been in front of the house. After the fire-brigade had extinguished the fire and ascertained that no glowing ashes were left, the applicant had remained in the house for a few minutes. He had again used petrol to set the kitchen on the ground floor afire. On 1 April 1989, in the evening, the applicant came to the house alone and set fire to the first floor. He had left between 8 and 8.30 p.m., while the fire had been discovered on 2 April 1989 around 1.30 a.m. On 4 April 1989 he had requested payment from his insurance company, stating that the fire had probably been caused by the children.        In establishing the facts the Regional Court referred in particular to the applicant's own statements and to the opinions of four fire experts. It dismissed the applicant's defence that the first fire had probably been caused by the children and the second fire had originated from the burning embers, as according to the expert opinions they had been lit with the help of petrol. As regards the third fire, it dismissed the applicant's defence that the fire could have been caused by a third person, e.g. a squatter. It found in particular that the applicant, according to his own statements, had been in the house on 1 April 1989 until 8 or 8.30 p.m. Moreover, the fire expert L., whose opinion had been ordered in the second set of proceedings, had convincingly explained the contradictions in the opinions of the other experts as regards the delay between the time when the applicant left the house and the time the fire broke out fully and was detected.        The Court further observed   that it had not taken into account the statements of the applicant's neighbours as regards his behaviour at the relevant time, as these did not tend to support any particular conclusion. Finally, the Court found that the statement, which the applicant's then eleven-year-old son had made as a witness at the trial on 30 September 1992, was not credible. He had made it more rapidly and accurately than could normally be expected more than three years after the incident at issue. Moreover, his statement differed from what he had said three years ago, when he had been heard by the investigating police officers. Thus, the alibi which he tried to provide for his father was in no way credible.        Subsequently, the applicant filed a plea of nullity (Nichtig- keitsbeschwerde) and an appeal against sentence (Berufung) with the Supreme Court.        In his plea of nullity under S. 281 para. 1 (4) of the Code of Criminal Procedure (Strafprozeßordnung) he submitted in particular that the rejection of his requests for the taking of evidence, which he had made at the trial, had violated his defence rights. He referred inter alia to his request that his son be heard by a child psychologist. He argued that the latter would have proved the credibility of his son's statement. Under S. 281 para. 1 (5) of the Code of Criminal Procedure, he alleged that some findings of the Regional Court could not be based on the evidence in the file and that the Regional Court's judgment did not contain sufficient reasons for its conclusion that he had lit the third fire. He also pointed out that the expert opinions were contradictory as regards the way in which the third fire was caused. Under S. 281 para. 1 (5a) he referred to the entirety of his submissions made under subparagraph (5). In addition he referred inter alia to the statements, which several neighbours had made at the trial, i.e. that they had been told by police officer F. that the applicant suspected them of having set fire to his house. In view of this fact it was not surprising that they had found that his conduct at the relevant time was suspicious.        On 6 April 1993 the Supreme Court, sitting in private, dismissed the applicant's plea of nullity.        As regards the applicant's complaint under S. 281 para. 1 (4) of the Code of Criminal Procedure, relating to the rejection of his numerous requests for the taking of evidence, the Supreme Court found that they were an attempt to challenge the assessment of the evidence made by the judges of fact and were as such inadmissible. In particular his request for an expert opinion of a child psychologist failed to recognize that the assessment of the evidence was for the judges of fact. They would only order such an expert opinion if they considered it necessary in view of the particular personality of the child, e.g. if he was mentally retarded. Further, as regards the applicant's complaint under S. 281 para. 1 (5) of the Code of Criminal Procedure, the Court found that he had failed to show that the establishment of the facts was contrary to the file. He had mostly claimed that the evidence referred to did not support the conclusions drawn by the judges and had thus, again tried to challenge the assessment of the evidence. However, the Regional Court had rejected his defence in a convincing manner, taking all the evidence before it into account. Finally the Supreme Court noted with regard to the applicant's complaint under S. 281 para. 1 (5a), that there was no indication in the file that the findings of fact on which the Regional Court had based his conviction were wrong.        Finally, the Supreme Court remitted the question of the applicant's appeal against sentence to the Innsbruck Court of Appeal (Oberlandesgericht).        On 19 April 1993 the Review Chamber (Ratskammer) at the Feldkirch Regional Court dismissed the applicant's request to open preliminary investigations against police officer F. The applicant had filed a criminal information with the Feldkirch Public Prosecutor's Office, alleging that police officer F. had made a false statement in court. He had quoted statements made by several of his neighbours as witnesses in court to the effect that, according to police officer F., the applicant had suspected them of having committed the arson at issue. However, F. had denied that he had done so.        On 9 June 1993 the Innsbruck Court of Appeal dismissed the applicant's appeal.     B.    Relevant domestic law        Section 281 para. 1 of the Code of Criminal Procedure (Strafprozeßordung) lays down the specific circumstances in which a plea of nullity may be made. These include, so far as relevant:        " ...        4.     if during the trial no decision is given on an application      by the appellant, or, in an interlocutory decision rejecting an      application or objection by him, the court disregards or      incorrectly applies laws or rules of procedure with which      compliance is required by the very nature of a procedure which      affords safeguards to the prosecution and the defence;        5.     if the judgment of the trial court in respect of decisive      facts is unclear, incomplete or self-contradictory ...;        5a.    if considerable doubts on the correctness of the decisive      facts on which the decision on the question of guilt is based,      arise from the file".        Section 285a para. 2 of the Code of Criminal Procedure provides:        "The Court of first instance at which a plea of nullity against      the final judgment has been lodged must reject this plea:        2.     if on the giving of notice of the plea of nullity or its      presentation one of the grounds of nullity as mentioned in      Section 281 para. 1 (1 to 11) has not been indicated clearly, in      particular if the circumstances to which the ground of nullity      relates are not referred to expressly or at least by a clear      indication."        Section 285d para. 1 of the Code of Criminal Procedure provides:        "During the private deliberations, a plea of nullity may be      rejected immediately:        1.     if it ought to have been rejected by the court at first      instance, pursuant to Article 285a ...        2.     if it is based on the grounds of nullity enumerated in      Article 281 para. 1 (1 to 8 and 11) and if the Supreme Court      unanimously finds that the complaint should be dismissed as      manifestly ill-founded without any need for further      deliberation."   COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention that the criminal proceedings against him were unfair in several respects.   a.    He submits in particular that the Criminal Department of the Vorarlberg Regional Police did not conduct the investigations properly and did not inform the Public Prosecutor's Office of the proceedings. Further he alleges that police officer F. unduly influenced some witnesses, i.e. the neighbours by telling them that he, the applicant, had suspected them of having set his house afire.   b.    The applicant further complains that the Feldkirch Regional Court rejected his request that his then eleven-year-old son be heard by a child psychologist.   c.    Finally, he complains that the Feldkirch Regional Court dismissed his son's statement as not being credible without proper reasoning and that the Supreme Court dismissed his plea of nullity, in particular the complaints raised under S. 281 para. 1 (5a), without adequate reasoning.   2.    The applicant also complains under Article 6 para. 1 that the Supreme Court did not hold an oral hearing on his plea of nullity, although, under S. 281 para. 1 (5a) of the Code of Criminal Procedure, it raised various questions of fact.        The applicant argues that the Austrian reservation to Article 6 of the Convention does not cover S. 281 para. 1 (5a) of the Code of Criminal Procedure, as this provision was not in force at the time the reservation was made. Eventually, he argues, that the said reservation is incompatible with Article 64 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 3 November 1993 and registered on 16 November 1993.        On 11 April 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. At this stage the Commission did not request the parties to comment on the admissibility and merits of the application as it decided to await the outcome of the case of Bulut v. Austria then pending before the European Court of Human Rights.        On 22 February 1996 the European Court of Human Rights gave its judgment in the case of Bulut v. Austria.        On 26 March 1996 the Commission invited the parties to submit any comments they wished to make in the light of the above judgment of the European Court of Human Rights.        On 24 April 1996 the Government informed the Commission that it did not intend to make any submission. On 17 May 1996, after an extension of the time-limit, the applicant informed the Commission that he wished to pursue the application.   THE LAW   1.    The applicant complains under Article 6 (Art. 6) of the Convention that the criminal proceedings against him were unfair in several respects.        Article 6 (Art. 6), so far as relevant, reads as follows:        "In the determination of ... any criminal charge against him,      everyone is entitled to a fair and public hearing ..."        The Commission recalls that the Convention organs' task is to ascertain whether the proceedings, considered as a whole, were fair (Eur. Court H.R. Lüdi judgment of 15 June 1992, Series A no. 238, p. 20, para. 43).   a.    As regards the applicant's complaint that the Criminal Department of the Vorarlberg Regional Police did not conduct the investigations properly, the Commission finds that the applicant, insofar as he has raised these complaints before the domestic authorities, has failed to substantiate in what respect the alleged shortcomings have affected his defence rights. As regards the applicant's allegation that police officer F. unduly influenced some witnesses, the Commission notes in particular that the Feldkirch Regional Court, in its judgment of 30 September 1992, explicitly observed that it had not taken the neighbours' statements into account. The Commission, therefore, finds that the alleged conduct of police officer F. was not decisive for the fairness of the proceedings as a whole.   b.    As regards the applicant's further complaints that the Feldkirch Regional Court rejected his request that his son be heard by a child psychologist and dismissed his son's statement as not being credible without proper reasoning, the Commission recalls that the admissibility of evidence is primarily governed by the rules of domestic law, and as a general rule it is for the national courts to assess the evidence before them (Lüdi judgment, loc. cit.)        In the present case, the Feldkirch Regional Court, on 30 September 1992, heard the applicant's then eleven-year-old son as a witness. The Supreme Court dismissed the applicant's complaint about the Regional Court's refusal to order an expert opinion on the credibility of his son's statement, arguing that the judges of fact, when assessing the evidence before them, are not obliged to consult an expert unless they find particular reasons to do so. In these circumstances, the Commission finds that the applicant failed to show that the taking or assessment of evidence as regards his son's statement were arbitrary and therefore contrary to the requirements of a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   c.    Moreover, the applicant complains that the Feldkirch Regional Court dismissed his son's statement as not being credible without proper reasoning and that the Supreme Court dismissed his plea of nullity, in particular the complaints raised under S. 281 para. 1 (5a), without adequate reasoning.        The Commission recalls that Article 6 para. 1 (Art. 6-1) obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument (Eur. Court H.R., Ruiz Torija judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29; Hiro Balani judgment of 9 December 1994, Series A no. 303-B, p. 29, para. 27). Moreover, the Convention organs are not called upon to examine whether arguments are adequately met (see Eur. Court H. R., Van de Hurk judgment of 19 April 1994, Series A no. 288, p. 20, para. 61).        In the present case, the Feldkirch Regional Court, in its judgment of 30 September 1992, found that the statement of the applicant's son was not credible on the grounds that it differed from what he had said earlier, and that he had made it very rapidly and precisely, although more than three years had elapsed since the events at issue. The Supreme Court, when dismissing the applicant's complaints under S. 281 para. 1 (5a) of the Code of Criminal Procedure limited its reasoning to the finding that there was no indication in the file that the trial court's findings of fact were wrong. The Commission observes that, under this heading, the applicant had referred to the entirety of his submissions under S. 281 para. 1 (5), which the Supreme Court had dismissed as an inadmissible attempt to challenge the trial court's assessment of evidence. Further, he had complained with regard to his neighbours' statements, which however, had not been taken into account by the trial court.        In these circumstances, there is no indication that the Regional Court or the Supreme Court failed to fulfil their obligation to state reasons for their decisions.        In conclusion, the Commission finds that there is nothing in the file to indicate that the applicant, represented by counsel, could not duly present his defence or that the proceedings were otherwise unfair.        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.   2.    The applicant complains under Article 6 para. 1 (Art. 6-1) that the Supreme Court did not hold an oral hearing on his plea of nullity. He submits in particular that, under S. 281 para. 1 (5a) of the Code of Criminal Procedure, it raised various questions of fact.        The applicant argues that the Austrian reservation to Article 6 (Art. 6) of the Convention does not cover S. 281 para. 1 (5a) of the Code of Criminal Procedure, as this provision was not in force at the time the reservation was made. Eventually, he argues, that the said reservation is incompatible with Article 64 (Art. 64) of the Convention.        The Commission is not required to determine the questions raised by the applicant concerning the Austrian reservation in respect of Article 6 of (Art. 6) the Convention, as the above part of the application is inadmissible for the following reasons.        The Commission recalls that the manner of application of Article 6 (Art. 6) to proceedings before appellate courts depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (Eur. Court H.R., Kerojärvi, judgment of 19 July 1995, para. 40, Series A no. 322, with further references). Provided that there has been a public hearing at first instance, the absence of "public hearings" at a second or third instance may be justified by the special features of the proceedings at issue. Thus proceedings for leave to appeal or proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of being heard in person by the appeal or cassation court (Eur. Court H.R., Monell and Morris judgment of 2 March 1987, Series A no. 115, p. 22, para. 58).        In the present case, a public hearing was held at first instance, namely before the Feldkirch Regional Court. The applicant filed a plea of nullity with the Supreme Court, which was based on S. 285 para. 1 (4), (5) and (5a) of the Code of Criminal Procedure. The Supreme Court rejected his plea of nullity, sitting in private, which according to S. 285 (d) para. 1 subparas. 1 and 2 of the Code of Criminal Procedure is permissible if the plea of nullity already ought to have been rejected by the court of first instance or if the Supreme Court unanimously finds that a plea of nullity is manifestly ill-founded without any need for further deliberation.        In the case of Bulut v. Austria, which also concerned the rejection of a plea of nullity by the Supreme Court in proceedings under Section 285d para. 1 of the Code of Criminal Procedure, the European Court of Human Rights has found as follows:        "In the instant case, the Court notes that a public hearing was      held at first instance.   It further notes that the Supreme Court      rejected Mr. Bulut's appeal pursuant to Article 285d para. 1 of      the Code of Criminal Procedure ... Under this provision the      Supreme Court, in summary proceedings, may refuse further      consideration of an appeal which it unanimously regards as      manifestly lacking any merit.   The nature of the review can      therefore be compared to that of proceedings for leave to appeal.      Moreover, the Court is not satisfied that the grounds of nullity      under Article 281 para. 1 (4) and (5) if the Code of Criminal      Procedure, as formulated by the applicant ..., raised questions      of fact bearing on the assessment of the applicant's guilt or      innocence that would have necessitated a hearing.   They      essentially challenged the trial court's assessment of the      available evidence, a challenge which the Supreme Court      considered inadmissible" (Eur. Court H.R., Bulut judgment of      22 February 1996, para. 42, Reports 1996).        The Commission finds that the above reasoning also applies to the present case. Therefore, there is no appearance of a violation of the applicant's rights under Article 6 para. 1 (Art. 6-1) of the Convention because of the lack of a hearing before the Supreme Court.        It follows that this part of the application is also 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)