AS TO THE ADMISSIBILITY OF

Application No. 15853/89
by J.G.
against Austria


The European Commission of Human Rights (First Chamber) sitting
in private on 19 February 1992, the following members being present:

MM.J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
SirBasil HALL
Mr.C.L. ROZAKIS
Mrs.J. LIDDY
Mr.M. PELLONPÄÄ

Mr.M. de SALVIA, Secretary to the First 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 9 August 1989 by
J.G. against Austria and registered on 1 December 1989 under file No.
15853/89;

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 applicant is an Austrian citizen, born in 1956 and at present
detained in prison in Krems.  He is represented by Mr. K. Bernhauser,
a lawyer in Vienna.

     It follows from the statements and documents submitted by the
applicant that on 17 August 1988 he was convicted by the Vienna
Regional Court (Landesgericht) of grievous bodily harm (absichtliche
schwere Körperverletzung) and sentenced to twelve years' imprisonment.

     According to the findings of the Court the applicant had on 31
October 1987 poured an inflammable liquid over his wife and then set
fire to her causing serious burns on 35% of her body.  The applicant
had defended himself by alleging that his wife had inadvertently spilt
the liquid herself and then caused the fire by lighting a cigarette.
Although the victim had made use of her right not to give evidence at
the trial the Court considered the applicant's defence to be disproven.
It referred to the report established by the police according to which
the applicant's wife had told a female police officer how the applicant
had treated her.  According to this report she had also told the
officer that she was afraid of giving evidence against the applicant
as he had threatened to kill her.  The officer had thereupon informed
her that as a relative she had a right to refuse to give evidence.

     The report in question was, as is stated in the judgment, read out
at the trial.  The Court considered that it could make use of the
report despite the fact that the victim later availed herself of the
right not to give evidence.

     The Court further relied on evidence given by an eye-witness,
namely the victim's son, born on 29 November 1982.  It is stated in the
judgment that the child was informed in an informal and adequate manner
that he did not have to give evidence against the applicant, his
step-father, and that he answered he wished to give evidence.  It
follows from a handwritten note in the minutes that the presiding judge
said to the boy: "You do not have to say anything as your daddy is
concerned" ("Du mußt aber nichts erzählen, es geht ja um deinen Papa").
The Court rejected the defendant's motion to ask the mother whether she
agreed on behalf of her son that he give evidence.  The Court stated
that only the witness personally had to decide whether or not to give
evidence.  It pointed out that otherwise evidence would be difficult
to obtain in cases of ill-treatment of children by their parents.

      The boy's evidence was considered to be trustworthy despite
certain contradictions which existed between his statements at the
trial and those made before the police and the investigating judge.

The Court found no indication that the boy had a tendency to lie
or had a personality default and was susceptible.  Therefore it
rejected the defendant's request to have the boy examined by a
psychiatrist.

     The Court also considered expert evidence submitted by a medical
doctor and a pyrotechnic expert.  Both experts had inter alia stated
that the victim's dress had been soaked with the inflammable liquid.
The pyrotechnic expert had further stated that it was most likely (hohe
Wahrscheinlichkeit) that the fire had been caused by an open flame and
could not have been caused by a glowing cigarette.  This statement was 
corroborated by the medical expert who pointed out that the
efore it
hands were uninjured while they would have been affected by the flames
had she herself spilled the liquid and then inadvertently caught fire
from a cigarette held in a hand.

The Court concluded that the statements made by the applicant's
stepson and the expert evidence at the trial, the result of the police
inquiries and the statements made by the applicant's wife before the
police clearly proved the applicant's guilt and refuted his version of
the event.

Insofar as the defence had produced a written declaration signed
by the applicant's wife before a public notary exonerating the
applicant, the Court stated that if the applicant's wife really
regretted to have him wrongly incriminated by her previous statements
before the police she could have given evidence to that effect at the
trial.  The fact that she preferred not to give evidence showed, in the
Court's opinion, that she had made her written declaration because she
was afraid of the applicant who had a criminal record of violent
aggressions.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) was
rejected by the Supreme Court (Oberster Gerichtshof) on 21 February
1989. The Court stated that it was for the trial court to determine
whether or not a child was apt to give evidence and it was for the
child and not his legal representative to decide whether or not to
avail himself of the right not to give evidence.  The Supreme Court
agreed with the trial court that there had been no reason to have the
child examined by an expert.

Insofar as the applicant had alleged that documentary evidence
relied on in the trial court's judgment had not been read out at the
trial, the Supreme Court found that this allegation contradicted by the
minutes of the trial which contained handwritten corrections made by
the trial court's presiding judge stating that the report in question
was read out.  The applicant's complaint on this point was therefore
rejected as being unsubstantiated (aktenwidrig - nicht gesetzmässig
ausgeführt).

The applicant's appeal (Berufung) was likewise to no avail
whereas the Vienna Court of Appeal (Oberlandesgericht) on 10 April 1989
increased his sentence to fourteen years' imprisonment following the
appeal of the public prosecution.


COMPLAINTS

The applicant maintains that, contrary to the handwritten notes
in the minutes, the police report was not read out at his trial. He
considers that Article 6 para. 1 of the Convention was thereby
violated.  Furthermore he argues that this provision was also violated
in that the principal witness against him was not in a position to
grasp the meaning and importance of his right to refuse to give
evidence.  Therefore his legal representative should have decided on
the witness' behalf whether or not this right should be invoked by the
witness.



THE LAW

1.   The applicant has mainly complained that his conviction of having
caused grievous bodily harm to his wife is principally based on the
evidence given by his step-son, a boy who was at the time five years
old.  He invokes the right to a fair hearing under Article 6 para. 1
(Art. 6-1) of the Convention and argues that the legal representative
of the boy, namely his mother, should have had to decide whether or not
the boy ought to have made use of his right as a relative of the
accused not to give evidence against him.

     The Commission first observes that the admissibility of evidence
is primarily a matter for regulation by national law.  The Commission's
task is therefore not to express a view as to whether the statements
in question were correctly admitted and assessed but rather to
ascertain whether the proceedings considered as a whole, including the
way in which evidence was taken, were fair (Eur. Court H.R., Kostovski
judgment of 20 November 1989, Series A no. 166, para. 39).

     The Commission notes that in the present case the trial court and
the Supreme Court carefully examined the legal problem of whether a
child, being called as witness in criminal proceedings against a
parent, could be left to decide himself whether or not to make use of
his right not to give evidence.  The Austrian courts considered that
the right in question was of a very personal nature (höchstpersönliches
Recht) and that therefore the child himself and not his legal
representative was entitled to decide whether or not to make use of it.
The Commission cannot find this reasoning to be incompatible with the
notion of a fair hearing.  It further notes that the trial court's
presiding judge informed the boy that he did not have to make any
statements as his step-father was concerned.  The boy replied that he
wished to make a statement and he then gave evidence in the presence
of the applicant and his defence counsel.  The trial court carefully
examined the question whether the witness was reliable.  It based its
findings of the applicant's guilt not only on the boy's statements but
also on further evidence, in particular expert evidence.

     It is true that the trial court also based its findings on
declarations made by the applicant's wife before the police while at
the trial she refused to give evidence.  However, the use of statements
obtained at the pre-trial stage is not in itself inconsistent with
paragraphs 3 (d) and 1 of Article 6 (Art. 6), provided that the rights
of the defence have been respected, particularly by giving the
defendant adequate and proper opportunities to challenge the evidence
in question.  (Eur. Court H.R., Asch judgment of 26 April 1991, Series
A, No. 203, page 10, paras. 27-31).

     In the present case the applicant was given the opportunity to
discuss his wife's version of the events and to put his own.  However,
in the light of the expert evidence, the result of the police
inquiries, the statements made by the applicant's wife before the
police and the statements of his step-son at the trial, the applicant's
version was found to be clearly refuted.

     In these particular circumstances it cannot be found that the
proceedings in question disclose any appearance of a violation of
Article 6 (Art. 6) of the Convention on account of the hearing of a
five-year-old witness.

2.   The applicant has further complained that a police report on which
the trial court's judgment also relied was, contrary to the statements
in the minutes, not read out at the trial.  However, the Supreme Court
rejected this complaint as being contradicted by the minutes and the
applicant has not produced any evidence proving his allegation either
before the Supreme Court or before the Commission. The Commission
further observes that the use as evidence of statements obtained at the
pre-trial stage is not in itself inconsistent with Article 6 (Art. 6)
(see judgment cited before, para. 41).  In the present case the trial
court relied on various evidence and not exclusively on the report in
question.  There is consequently again no appearance of a violation of
Article 6 (Art. 6).

3.   It follows that 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 THE APPLICATION INADMISSIBLE.


Secretary to thePresident of the
  First Chamber    First Chamber



       (M. DE SALVIA)      (J. A. FROWEIN)