THIRD SECTION

PARTIAL DECISIONNote

AS TO THE ADMISSIBILITY OF

Application no. 33382/96 
by Josef FISCHERNote 
against AustriaNote

The European Court of Human Rights (Third Section) sitting on 6 January 2000 as a Chamber composed of

Sir Nicolas Bratza, President
 Mr P. Kūris, 
 Mrs F. Tulkens, 
 Mr W. Fuhrmann, 
 Mr K. Jungwiert, 
 Mr K. Traja, 
 Mr M. Ugrekhelidze, judges
 

and Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 May 1996 by Josef Fischer against Austria and registered on 7 October 1996 under file no. 33382/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant is an Austrian citizen, born in 1939 and living in Vienna. He is represented before the Court by Mr A. Adam, a lawyer practising in Vienna.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 12 May 1995 the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen) convicted the applicant, under Section 164 of the Penal Code (Strafgesetzbuch), on numerous counts of handling stolen goods (Hehlerei) and, under Sections 37 and 38 of the Code of Fiscal Offences (Finanzstrafgesetz), of handling goods which had not been properly declared to the custom authorities (Abgabenhehlerei). It sentenced the applicant to three years’ imprisonment. The Regional Court found that the applicant, who dealt with antiques, had bought, between 1986 and 1988, antiques which had been stolen in the north of Italy from a Mrs H. The Regional Court observed that the applicant had known Mrs H since 1971. He had repeatedly visited her at her house in Italy and passed his holidays with her. Mrs H. had been convicted on several occasions by Italian courts of handling stolen antiques, and had spent substantial periods of time in detention both after conviction and on remand. On two occasions the criminal investigations against her extended to the applicant. Since 1986 Mrs H. had sold religious antiques to the applicant. These antiques had been brought to Austria by Mrs H. in her car in black plastic bags under the bonnet of her car, the motor being covered with blankets made of asbestos. They had been handed over to the applicant at parking places on the motorway from Innsbruck to Italy. In the light of these circumstances, as well as telephone conversations between the applicant and Mrs H. which had been recorded by the Italian police, the Regional Court concluded that the applicant had known that the antiques had been stolen and had been smuggled into Austria.

At the trial the applicant, represented by counsel, made various requests for the taking of evidence. He requested, inter alia, that six antique dealers be heard as witnesses, and give evidence as to how antiques were handed over in the trade. He considered that Mrs H. and her husband should be heard on the question whether the applicant had known that the antiques sold by Mrs H. had been stolen. The Regional Court dismissed these requests. It found that Mrs H. was unavailable as her address was unknown. As regards Mr H., the applicant had not substantiated that this person could make any relevant statement. As regards the request to hear the antique dealers, the Regional Court observed that it was not unusual that antique dealers accepted goods outside their shops. The particular circumstances of the applicant’s transactions with Mrs H. were of importance, and the witnesses in question could not say anything on that issue since they had not been present. It was not necessary to hear a further expert as the report of the court appointed expert had been clear.

On 14 September 1995 the applicant filed a plea of nullity and an appeal against sentence with the Supreme Court (Oberster Gerichtshof). He complained in particular that the Regional Court had refused to take the evidence requested by him and that it had wrongly assessed the evidence before it.

On 12 October 1995 the Procurator General (Generalprokurator) submitted the following comments on the applicant's plea of nullity:

"In the view of the Procurator General, the plea of nullity of the accused Josef Fischer can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested."

On 21 November 1995 the Supreme Court dismissed the applicant’s plea of nullity. It found that the Regional Court had acted correctly when it dismissed the applicant’s requests for evidence. As regards the request for a further expert opinion on the value of the objects purchased by the applicant, the Supreme Court noted that the applicant had failed to substantiate in what respects the report of the court appointed expert had been unclear or defective. As regards the request for the hearing of the antique dealers, the Supreme Court found that the Regional Court had conceded that it was not in itself unusual that antique dealers hand over or receive antiques outside their shops. It had therefore not been necessary to hear the persons requested as to how they transacted business. As regards the hearing of Mr and Mrs H., the Supreme Court noted that Mrs H. was of unknown abode and that the Regional Court therefore could not have summoned her. Furthermore, the applicant had requested these witnesses in order to prove that he had not known that the objects of the transactions had been stolen. Since the requested evidence related to the state of his mind, i.e. whether he had known certain things or not, he should have specified in his request why it was likely that the evidence of these witnesses could successfully establish his contentions.

On 23 January 1996 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal.

B. Relevant domestic law

Under Section 285 (d) § 1 of the Code of Criminal Procedure (Strafprozessordnung), a plea of nullity may be rejected by the Supreme Court after deliberations in private if the Supreme Court unanimously finds that the complaint should be dismissed as manifestly ill-founded without any need for further deliberation.

Section 35 § 2 of the Code of Criminal Procedure, as in force at the relevant time, reads as follows:

"If the public prosecutor at an appellate court submits observations on an appeal on grounds of nullity ..., the appellate court shall communicate those observations to the accused (person concerned), advising him that he may submit comments on them within a reasonable period of time that it shall determine.  Such communication may be dispensed with if the prosecutor confines himself to opposing the appeal without adducing any argument, if he merely supports the accused or if the accused's appeal is upheld."

Since the 1996 Criminal Law Amendment Act (Strafrechtsänderungsgesetz) the last sentence of Section 35 § 2 reads as follows:

“Such communication may be dispensed with if the prosecutor merely supports the accused or if the accused's appeal is upheld."

 

COMPLAINTS

1. The applicant complains under Article 6 of the Convention about his conviction and the alleged unfairness of the proceedings leading thereto. In the latter respect he raises the following complaints:

a. He submits that on 21 November 1995 the Supreme Court decided in camera on his plea of nullity after having obtained submissions from the Procurator General without informing him of these submissions or giving him an opportunity to react to them.

b. He submits that the Regional Court refused to take the evidence requested by him and wrongly interpreted transcripts made by the Italian authorities of the surveillance of Mrs H.’s telephone.

c. He submits that the Austrian courts infringed the principle of presumption of innocence in that they convicted him without having sufficient proof of his guilt.

2. Lastly, the applicant complains under Article 7 of the Convention that he was convicted under Section 35 of the Code of Fiscal Offences of smuggling, although he had never been charged with that offence.

THE LAW

1. The applicant complains under Article 6 of the Convention that on 21 November 1995 the Supreme Court decided in camera on his plea of nullity after having obtained submissions from the Procurator General without informing him of these submissions or giving him an opportunity to react to them.

The Court considers that it cannot at the present stage, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains under Article 6 of the Convention about his conviction and the alleged unfairness of the proceedings leading thereto.

Article 6 of the Convention, insofar as relevant reads as follows:

“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair ...hearing ...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to 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 Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in Reports of Judgments and Decisions 1999). 

It seems, in the Court’s view, appropriate to look at the applicant’s complaints about the alleged unfairness of the criminal proceedings from the point of view of paragraphs 1 and 3 of Article 6 taken together, especially as the guarantees of paragraph 3 represent aspects of the concept of a fair trial contained in paragraph 1 (see the Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 14, § 29).

The applicant submits in particular that the Regional Court refused to hear witnesses and to take certain evidence requested by him.

The Court recalls, however, 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 defendant seeks to adduce. More specifically, Article 6 § 3 (d) leaves it to them, in principle, the assessment 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 (see the Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89, and the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention (Bricmont v. Belgium judgment, loc.cit).

The Court observes that the Regional Court rejected the applicant’s requests for evidence, explaining why such evidence was either irrelevant, unnecessary or unavailable. The Supreme Court carefully examined the explanations and found that the Regional Court had acted correctly in its refusal.

The Court finds no indication that the refusal to take all the evidence requested by the applicant was incompatible with Article 6, or that thereby the applicant’s rights of the defence were unduly restricted or the proceedings unfair.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. The applicant further complains that the Austrian courts infringed the principle of the presumption of innocence in that they allegedly convicted him without having had sufficient proof of his guilt.

The Court recalls that the presumption of innocence will be violated if, without the accused having previously been proved guilty according to law, a judicial decision concerning him reflects an opinion that he is guilty (see the Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 67 et seq.).

In the present case, it does not appear from the material before the Court that during the proceedings, and in particular the trial, the Austrian courts took decisions or showed attitudes reflecting such an opinion.

It follows that there is no appearance of a violation of the applicant’s rights under Article 6 § 2 of the Convention and that this part of the application is also to be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

4. Lastly the applicant complains under Article 7 of the Convention that he was convicted under Section 35 of the Code of Fiscal Offences of smuggling, although he had never been charged with that offence.

Article 7 § 1 of the Convention reads as follows:

“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court observes that the applicant was convicted of handling goods which had not been properly declared to the custom authorities (Abgabenhehlerei) under Sections 37 and 38 of the Code of Fiscal Offences. In other words, the applicant has not been convicted of smuggling but of handling goods which had been smuggled by other persons. The applicant does not submit that he was not charged with that offence.

Accordingly, the Court finds that the complaint is wholly unsubstantiated and discloses no appearance of a violation of the applicant’s rights under Article 7 of the Convention.

It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint concerning the failure of the Supreme Court to communicate to the applicant the comments of the Procurator General on the plea of nullity;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza 
 Registrar President

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