AS TO THE ADMISSIBILITY OF
Application No. 26999/95
by R. W.-L.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 14 January 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 22 March 1995 by
R. W.-L. against Austria and registered on 7 April 1995 under file
No. 26999/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
8 January 1997 and the observations in reply submitted by the
applicant on 10 March 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1953, is an Austrian national, residing
in Vienna. In the proceedings before the Commission, he is represented
by Mr. M. Gnesda, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
Since 1974 the applicant was working as a civil servant in the
technical services department of the Vienna Municipality. Since 1980
he was deployed to the Vienna Transport Authority (Verkehrsamt Wien)
where he served as an examiner for the drivers test.
In 1993 the Vienna Regional Criminal Court (Landesgericht für
Strafsachen) opened criminal proceedings against the applicant on the
suspicion of abuse of authority (Amtsmißbrauch) and of accepting
presents as a civil servant (Geschenkannahme durch Beamte). He was
accused, together with others, of having received money for allowing
the driving instructors of two driving schools to manipulate the exam
papers for the drivers test in a way which allowed their candidates to
obtain the questions which they had chosen beforehand. Further, he was
accused of having taken money and other presents for drivers tests
which had been carried out correctly. In these and the following
proceedings the applicant was represented by counsel.
On 22 February 1993 the Public Prosecutor's Office
(Staatsanwaltschaft) filed the indictment charging the applicant with
abuse of authority by having carried out manipulated drivers tests
between early 1991 and 15 January 1993 and of having received presents
as a civil servant during the same period of time. The total sum of
money received in relation to these charges was estimated at
ATS 96,000.
On 19 January 1994 the Vienna Regional Criminal Court, sitting
as a court of two professional and two lay judges (Schöffengericht),
opened the trial against the applicant.
At the beginning of the hearing the applicant admitted that he
had received money from driving instructors after having carried out
drivers tests. However, upon being questioned by the presiding judge,
he denied that the amount received was as high as he had previously
admitted. Thereupon, the presiding judge informed him that a confession
was an important mitigating circumstance and that the sentence in case
of a conviction could be so severe that it would entail his removal
from office (Amtsverlust). The applicant maintained his statement.
According to the minutes, the presiding judge thereupon stated
that, thus, the applicant risked to be removed from office.
According to the applicant, the presiding judge stated "In that
case, you will have to go polish shoes" ("Dann werden Sie Schuhe putzen
gehen müssen"). The Government refer to the formulation in the Regional
Court's decision of 30 May 1994 on the applicant's request for a
rectification of the minutes (see below), namely that "the presiding
judge had stated, that the applicant risked 'to go polish shoes'".
However no such remark was entered in the minutes.
Immediately after the above statement, the applicant's counsel
challenged the presiding judge for bias. After having discussed the
matter in private for a few minutes, the court dismissed this motion
finding that the presiding judge was not biased.
In the further course of the hearing the applicant's counsel
requested the taking of evidence, inter alia in order to show that the
applicant, when serving as an examiner at the Vienna Transport
Authority, had to be considered as an independent technical expert and
not as a civil servant or, in the alternative, that he was not aware
that he was acting as a civil servant and had, thus, not acted
intentionally. The court dismissed these requests.
On 18 March 1994 the applicant filed a request for rectification
of the minutes. He claimed in particular that the presiding judge, in
the context of the retraction of his full confession, had told him that
he risked a sentence which was so severe that he would be removed from
office and that "in that case, he will have to go polish shoes".
However, the minutes did not record this statement.
On 21 March 1994 the Regional Court held a further hearing.
Towards the end of the hearing the applicant's counsel repeated his
requests for the taking of evidence and also requested the hearing of
one further witness.
In this context, the presiding judge stated that he was
"increasingly gaining the impression that defence counsel had not
understood the indictment". According to the minutes, the applicant's
counsel requested that the respective statement be recorded and
challenged the presiding judge for bias on the ground that such a
statement was contrary to an impartial way of conducting the
proceedings.
After having deliberated in private for five minutes the court
dismissed this motion finding that there was no appearance that the
presiding judge was biased. Further, it dismissed the applicant's
requests for the taking of evidence.
At the close of the hearing, the Vienna Regional Criminal Court
found the applicant guilty of the above charges and convicted him of
abuse of authority and of having accepted presents as a civil servant
and sentenced him to fourteen months' imprisonment, of which eleven
months were suspended on probation. Further, it noted that the
applicant had received altogether ATS 65,000 in the context of these
offences but - for reasons of equity - found that the imposition of a
fine of ATS 50,000 was sufficient.
The court found that a civil servant within the meaning of the
Criminal Code (Strafgesetzbuch) was anyone, who was appointed as an
organ of the State and had to carry out acts of State jurisdiction. The
carrying out of drivers tests was such an act. The applicant, when
serving as an examiner, had to decide whether a candidate had shown the
required faculties for being granted a drivers licence. He had abused
his authority in that he had allowed driving instructors of two driving
schools to manipulate the exam papers in a way that their candidates
obtained questions they had chosen beforehand. Moreover, he had also
accepted money and other presents for drivers tests which had been
carried out correctly. When fixing the sentence, the court considered
as a mitigating circumstance the applicant's confession before the
police. However, it noted that no particular weight was to be attached
to this confession as the applicant had retracted it at the trial and
had constantly held the view that he had not received money for
manipulating exams but only because he was a lenient and fair examiner.
As he thereby displayed a lack of consciousness of guilt, only part of
the sentence was suspended on probation.
On 30 May 1994 the Regional Court dismissed the applicant's
request for rectification of the minutes. It noted that the minutes
were not a verbatim record of the statements made but only had to
reflect their contents. It was correct that the presiding judge had
stated that the applicant risked "to have to go polish shoes", however,
this colloquial explanation had been meant to make it clear to the
applicant in a graphic manner what kind of a sentence he risked in case
of his conviction without the mitigating circumstance of a full
confession.
On 29 June 1994 the applicant lodged a plea of nullity and an
appeal (Nichtigkeitsbeschwerde und Berufung) against the above
judgment. He claimed in particular that the presiding judge had been
biased. He had, on 19 January 1994, at the very beginning of the trial,
when the applicant had repeated his earlier confession as regards the
fact of having received money, but had retracted it as regards the
amounts received, told the applicant that he would have to polish
shoes, meaning that without the mitigating circumstance of a full
confession he risked a sentence which would entail his removal from
office. In these circumstances the statement was not only lacking
objectiveness, but was likely to intimidate the applicant. On
21 March 1994 the presiding judge had, after the applicant's counsel
had made a request for the taking of evidence, stated that he
increasingly had the impression that the latter had not understood the
indictment. Moreover, the applicant complained that the court had
dismissed his motions challenging the presiding judge for bias without
giving reasons. Further, the applicant complained that the court had
dismissed his requests for the taking of evidence.
On 22 September 1994 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's plea of nullity and his appeal.
It found that the refusal of the applicant's motions challenging
the presiding judge for bias did not necessitate lengthy explanations.
The contested statements were not suited to cast doubt on the presiding
judge's impartiality. The caution that the retraction of a confession
removed an important mitigating circumstance and might lead to a
severer sentence was as such legitimate, although the graphic wording
was contrary to S. 52 para. 2 of the Rules of Procedure for the Courts
of First and Second Instance (Geschäftsordnung der Gerichte erster und
zweiter Instanz - hereinafter Courts' Rules of Procedure). The
statement directed towards the applicant's counsel had been impolite
and was also contrary to the said provision, but did not warrant the
conclusion that the presiding judge was biased.
As regards the refusal of the applicant's requests for the taking
of evidence, the Supreme Court found that they had concerned questions
of law, namely the question whether he was a civil servant, which had
to be decided by the court. As far as the applicant had wanted to prove
that he was not aware of being a civil servant and had thus not acted
intentionally, the request was irrelevant. For acting intentionally,
it was sufficient that the applicant was aware that the granting of
drivers licences was an act of State jurisdiction and that he as an
examiner held an official function. The Regional Court's findings of
fact supported the conclusion that the applicant had acted
intentionally.
On 26 September 1994 the Vienna Municipality, referring to
S. 27 para. 1 of the Criminal Code (Strafgesetzbuch), took a
declaratory decision stating that the applicant had been removed from
office as of 22 September 1994. It noted that the applicant had been
convicted and sentenced to fourteen months' imprisonment and that the
judgment had become final on 22 September 1994.
B. Relevant domestic law
Criminal Code (Strafgesetzbuch)
S. 27 para. 1 provides that the pronouncement by a domestic court
of a sentence of imprisonment of more than one year for having
intentionally committed one or several offences shall, in the case of
a civil servant, entail his removal from office.
Rules of Procedure for the Courts of First and Second Instance
(Geschäftsordnung der Gerichte erster and zweiter Instanz)
S. 52 para. 2 states that parties shall be dealt with in a
strictly impartial way, unless controversies shall be terminated by
reference to the tasks incumbent upon the court. The judge is not
supposed to enter into any arguments with the parties and their
representatives, to issue reprimands which are unrelated to procedural
behaviour, nor to express value judgments or make mocking remarks. It
is prohibited to make any statements about the possible outcome of a
case outside the hearings. During the hearing the judge shall refrain
from making remarks about the prospective contents of the decision; the
legal opinion of the judge and his view about the evidence may
transpire from the way of formulating questions, from suggestions to
reach a settlement; in such case, however, it must always be
perceivable that the judge is prepared to rectify his opinion in the
light of what turns out in the further course of the hearing.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
he did not have a fair trial by an impartial tribunal. He submits in
particular that the presiding judge at the Vienna Regional Criminal
Court told him at the beginning of the trial on 19 January 1994 that
he would have to go polish shoes, if he did not fully uphold his
confession, meaning that without the mitigating circumstance of a full
confession he risked a sentence which would entail his removal from
office. This statement was likely to intimidate an accused and created
the impression that the result of the proceedings had already been
determined. The presiding judge's statement directed to his counsel at
the hearing of 21 March 1994, namely that he had the impression that
the latter had not understood the indictment, also raised doubts as to
his impartiality. The applicant also claims that these statements were
in conflict with the presumption of innocence. Further, the applicant
complains that the Vienna Regional Criminal Court and the Supreme Court
failed to give reasons as regards the refusal of his motions
challenging the presiding judge for bias. Finally, he complains about
the refusal of his requests for the taking of evidence and that he has,
thus, been unable to show that he had not acted as a civil servant.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 March 1995 and registered
on 7 April 1995.
On 16 October 1996 the Commission decided to communicate the
applicant's complaint concerning the alleged lack of the presiding
judge's impartiality and his related complaint about a violation of the
presumption of innocence by certain statements made by the presiding
judge to the respondent Government.
The Government's written observations were submitted on
8 January 1997. The applicant replied on 10 March 1997.
THE LAW
1. The applicant raises a number of complaints under Article 6
(Art. 6) of the Convention relating to the criminal proceedings against
him. Firstly, he complains that the presiding judge made statements
which cast doubt on his impartiality and violated the presumption of
innocence. Further, he submits that the courts failed to give reasons
as regards the refusal of his motions challenging the presiding judge
for bias. Finally, he complains about the refusal of his requests for
the taking of evidence.
Article 6 (Art. 6), so far as relevant, reads 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 ...
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law. "
2. As to the applicant's complaint about the alleged lack of the
presiding judge's impartiality, the Government submit that the impugned
statements were not suited to raise doubts as to the complete
impartiality of the presiding judge. As to the first statement, the
Government argue that the judge only discharged his duties when
cautioning the applicant that the withdrawal of a confession would
remove a mitigating circumstance and might thus lead to a sentence
which would entail his removal from office. They submit that the
graphic wording chosen, though inappropriate and in breach of
S. 52 para. 2 of the Courts' Rules of Procedure, was only intended to
make the applicant vividly aware of this possibility. As to the second
statement, directed against counsel for the defence, the Government
again concede that it was impolite and contrary to the Courts' Rules
of Procedure, but argue that it has to be seen in the context of the
justified refusal of counsel's requests for the taking of evidence. In
conclusion, the Government, referring to case-law of the Convention
organs, argue that a derogatory remark or a statement anticipating the
outcome of the proceedings does not constitute a violation of Article 6
(Art. 6) as long as the accused is not prevented from conducting his
defence. They argue that the applicant, despite the graphic warning,
pleaded not guilty and defence counsel was able to carry out his
defence unimpeded. Moreover, the presiding judge did nothing in the
proceedings which would justify the conclusion that he had already
determined the result of the proceedings beforehand.
As to the alleged violation of the presumption of innocence, the
Government submit that Article 6 para. 2 (Art. 6-2) relates to the
attitude in which judges carry out their task. In particular, they
should not approach their task with the assumption that the accused
actually committed the crime he is charged with. In the present case,
they argue, that there is no indication that the presiding judge
nourished such an assumption. Despite its graphic wording, the
statement relating to the possible consequence of removal from office
has to be understood as a conditional clause, i.e. that in case of a
conviction, the determination of the sentence would be influenced by
the fact whether the confession had been maintained or retracted.
Moreover, the Government point out that the judgment evaluated the
evidence, including the applicant's confession and its partial
retraction, in an impartial manner.
The applicant contests the Government's view as regards the
question of the presiding judge's impartiality. He emphasizes that the
first statement was made immediately after he had admitted to having
received money in the context of drivers tests but had retracted his
confession as regards the amounts. He considers that the announcement
that in that case he would have to go polish shoes, had nothing to do
with a correct caution of an accused by the judge but was an outright
threat that if he did not fully uphold his confession including the
exact sum of money received, he would with certainty receive a sentence
which would entail his removal from office. The applicant also points
out that the sum finally established in the judgment was considerably
lower than in the indictment and that he nevertheless received a
sentence which resulted in his removal from office. This confirmed his
impression which had been created by the presiding judge's first
statement, namely that the result of the proceedings had already been
determined at their very beginning. He also claims that this statement
in fact put severe pressure on him and impeded his defence throughout
the whole trial.
The applicant equally contests the Government's view as regards
the alleged violation of the presumption of innocence, arguing that it
is meant to protect the accused inter alia against a judge's
partiality. He argues that the presiding judge's remark not only showed
contempt for him but contained the threat that, in case he did not
maintain his full confession, he would receive a sentence which would
entail his removal from office. Thus, it showed that the presiding
judge was convinced of his guilt from the very beginning of the
proceedings and, therefore, was contrary to the presumption of
innocence.
The Commission considers, in the light of the parties'
submissions, that this part of the case raises complex issues of law
and of fact under the Convention, the determination of which should
depend on an examination of the merits. The Commission concludes,
therefore, that this part of the application is not manifestly ill-
founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
3. The applicant further complains that the courts failed to give
reasons for their rejection of his motion challenging the presiding
judge for bias.
The Commission recalls that while Article 6 para. 1 (Art. 6-1)
obliges the courts to give reason for their judgments, it cannot be
understood as requiring a detailed answer to every argument adduced
(Eur. Court HR, Helle v. Finland judgment of 19 December 1997, para.
55, to be published in Reports 1997; No. 10938/84, Dec. 9.12.86, D.R.
50, p. 98 at p. 114; No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106 at
p. 150).
In the present case, the Regional Court upon rejecting the
applicant's motions, only stated that it found no appearance of bias
on part of the presiding judge. However, the Supreme Court, dealing
with each of the two impugned statements separately, briefly stated
reasons for its opinion that neither of these statements supported the
conclusion that the presiding judge was biased. In these circumstances
the Commission finds that the courts gave sufficient reasons for
rejecting the applicant's motions of bias.
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.
4. Finally, the applicant complains about the refusal of certain
requests for the taking of evidence.
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,
whereas it is for the Convention organs to ascertain whether the
proceedings considered as a whole, including the way in which the
evidence was submitted, were fair (Eur. Court HR, Lüdi v. Switzerland
judgment of 15 June 1992, Series A no. 238, p. 20, para. 43).
The Commission notes that the applicant's requests for the taking
of evidence were aimed at showing that he, when serving as an examiner
for the drivers test had not acted as a civil servant. They were
rejected on the ground that they concerned questions of law. There is
not indication that the applicant, assisted by counsel, could not duly
forward evidence in his defence or that the proceedings were otherwise
unfair.
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 ADMISSIBLE, without prejudging the merits, the
applicant's complaints that the presiding judge made statements
which cast doubt on his impartiality and violated the presumption
of innocence;
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
R.W.-L. v. AUSTRIA