FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42780/98 
by I.H., Me.H, R.H. and Mu.H. 
against Austria

The European Court of Human Rights (First Section), sitting on 6 May 2003 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr G. Bonello
 Mrs F. Tulkens
 Mrs S. Botoucharova
 Mr A. Kovler
 Mr V. Zagrebelsky, 
 Mrs E. Steiner, judges
and Mr S. Nielsen, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 23 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 23 October 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

 

THE FACTS

The applicants, four in all, are Austrian nationals of Turkish origin, born in 1978, 1959, 1959 and 1961 respectively, and are living in Lustenau (Austria). The second applicant is the first applicant’s father, the third applicant his mother and the fourth applicant his uncle. They are represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz (Austria).

A.  The circumstances of the case

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

On 21 March 1997 the Feldkirch Public Prosecutor filed a bill of indictment against the applicants charging them with rape under section 201 § 2 of the Penal Code, coercion and deprivation of liberty. The public prosecutor stated that since September 1995 the first applicant had been the fiancé of F.D. Their future marriage had been arranged by their respective fathers. After the death of F.D.’s father in May 1996, F.D. considered herself no longer bound by the promise of betrothal given by her father. She told this to the first applicant and his parents who, however, refused to accept her change of mind.

Ever since the death of F.D.’s father the second applicant regularly brought F.D. by car to her place of work and drove her home again after work. On 22 July 1996, around 5.00 a.m., the second applicant, accompanied by the first and third applicant, picked up F.D. and brought her to the home of the fourth applicant. The second applicant told her that she was going to have sexual intercourse with the first applicant. He also told her that if she resisted she would be held by the second and fourth applicants and that the third applicant would force her legs apart. She was accompanied to the bedroom. The first applicant attempted to have sexual intercourse with her, but this attempt failed because of F.D.’s resistance. Thereupon, the first applicant requested the third applicant to help him. The third applicant tied F.D.’s hands with adhesive tape and stuck a strip of adhesive tape over her mouth. She then held F.D.s arms while the first applicant had intercourse with F.D. Thereafter, F.D. was constrained to spend the rest of the day with the first applicant in the house.

 

The second and third applicants phoned her mother and told her that F.D. had been kidnapped by them and that she should not contact the police, otherwise F.D. would be killed. Nevertheless, F.D.’s mother informed the police about the incident. Around 8.00 p.m. F.D. was allowed to phone her mother. Soon afterwards police officers arrived at the house and arrested all four applicants.

On 23 May 1997 the applicants’ trial was held before the Feldkirch Regional Court. The applicants, assisted by counsel, Mr. Weh, protested their innocence and claimed that F.D. had accompanied them voluntarily in order to become closer acquainted with the first applicant’s uncle and that, on this occasion, she had had sexual intercourse with the first applicant of her own free will. No violence whatsoever had been used against her The court heard the applicants and several witnesses, including the victim, her mother and a doctor who had examined the victim at the hospital. F.D. repeated to the court the statements she made to the police and the investigating judge, but added that her family and the applicants’ family had meanwhile settled the matter and that she had received a payment of 50,000 ATS from the applicants’ family.

At the close of the hearing the applicants requested the court to hear further evidence from S.G., a neighbour of the fourth applicant, on the question of her hostility towards the fourth applicant, from T.S., the doctor of F.D.’s mother, on her state of health and her medical treatment, and from H.F., a lawyer, on the agreement reached between the families. The Regional Court dismissed these requests as irrelevant to the proceedings as, in its view, the requests were in part mere “fishing expeditions” and in part concerned issues not connected with the charge against the applicants.

On the same day the Regional Court convicted the applicants of rape under section 201 § 1 of the Penal Code and of deprivation of liberty. The first and second applicants were also convicted of aggravated coercion. The first applicant was sentenced to one year’s imprisonment, the second applicant to two years, the third applicant to twenty months and the fourth applicant to eighteen months. In its judgment, the court described the course of the events in the same terms as in the bill of indictment.

As regards the assessment of evidence, the court followed the statements of F.D. given at the trial, which, in its view, were corroborated by other evidence such as her mother’s statements, statements of police officers who had carried out the investigations, a medical report, items found at the scene of the crime, such as used adhesive tape, and reports on the examination of textiles and tissues found in the bedroom.

As regards the classification of the offence in law, the court found that from the facts established it was apparent that F.D. had been exposed to and has been threatened with acts of serious violence. It therefore had to convict the applicants of rape under Section 201 § 1 of the Penal Code.

On an unspecified date after the end of the trial and before the written version of the judgment was served on the parties, F.D. visited the judge who had presided at the trial and asked him to accept a note dated 18 June 1997 and signed by her. According to that note, she had married the first applicant on 18 June 1997 and did not wish that any member of her husband’s family should go to prison because of the incident. The note stated that she would avail herself in the future of her right as a spouse not to give evidence and that she relied on this right retroactively. The presiding judge refused to accept the note.

On 24 July 1997 the applicants filed pleas of nullity (Nichtigkeits-beschwerde) and appeals against sentence (Berufung). They complained that the Regional Court had failed to take evidence requested by them. They also complained that the presiding judge had been biased because he had refused to accept F.D.’s note of 18 June 1997 and relied in this respect on section 281 § 1 (1) of the Code of Criminal Procedure. The applicants also complained that their conviction for rape had gone beyond the terms of the indictment (Anklageüberschreitung) as they were convicted of rape under section 201 § 1 of the Penal Code while the bill of indictment had charged them with rape under section 201 § 2 of the Penal Code. In the applicants’ submission, if the Regional Court had been of the opinion that the public prosecutor’s indictment had not corresponded to all the elements of the case it should have given the public prosecutor the opportunity to amend the indictment. This would at the same time have given the applicants the opportunity to react to the amendment and to dispute the existence of any aggravating circumstances.

On 2 December 1997 the Supreme Court rejected the applicants’ appeal under section 285d § 1 of the Code of Criminal Procedure without holding a hearing. As regards the complaint that the presiding judge had been biased, the court found that there were no indications of this. In any event, bias could not constitute a ground of nullity under section 281 § 1 (1) of the Code of Criminal Procedure. 

The Supreme Court also found that the Regional Court had acted correctly when it dismissed the applicants’ request for the taking of further evidence. As regards the request to hear S.G. as a witness, this request was based on the premise that S.G. was hostile towards the fourth applicant. However, this point had not been argued in the proceedings. As regards the hearing of T.S., the Supreme Court found that the applicants’ request to have this witness heard had not been correctly formulated as they had failed to indicate the facts which could be proved by his testimony. The same was true of their request to hear H.F. as a witness.

As regards the complaint that the judgment had exceeded the terms of the indictment with respect to the charge of rape, the Supreme Court found that a ground of nullity could only be made out if the applicants had been found guilty of an offence which had not been the subject matter of the indictment. The subject matter of an indictment was a specific act or event which, in the eyes of the public prosecutor, had brought about a punishable result. If, on the basis of the evidence taken, the event which formed the basis of the indictment had, in certain details, occurred in a manner different from that assumed by the prosecution, the court had to apply the correct law to the established facts even if the result was that the legal qualification then applied differed from the one made by the public prosecutor. It was only where the taking of evidence showed a course of events which was entirely different from the events described in the indictment such that it could no longer be considered covered by the terms of the indictment, that a conviction would pre-suppose the prior amendment of the indictment. In the present case, the act with which the applicants were charged was identical to the established facts as set out in the judgment. The trial court had merely come to a different legal qualification on the facts. However, this did not exceed the terms of the indictment (Anklageüberschreitung). Moreover, the different legal qualification given to the offence was not in breach of the Convention. It was the main purpose of Article 6 § 3 (d) of the Convention to achieve equality of arms between the prosecution and the defence. However, it could not be considered that a legal qualification in the judgment which differed from the one in the indictment infringed this or any other provision of the Convention. The Supreme Court remitted the applicants’ appeal against sentence to the Innsbruck Court of Appeal.

On 11 February 1998 the Court of Appeal dismissed the applicants’ appeal and confirmed the sentences fixed by the Regional Court.

B.  Relevant domestic law

Section 201 of the Penal Code (Strafgesetzbuch) reads as follows:

“1. Anyone who compels another person, by use of serious violence or threats of immediate serious danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of one to ten years. Rendering unconscious also qualifies as use of serious violence.

2. Anyone who, except for the case under paragraph 1, compels another person, by use of violence, deprivation of liberty or threats of danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of six months to five years.

3. If the violence resulted in serious bodily harm to the victim, or if the victim has endured great pain for a prolonged period or has been particularly humiliated, the perpetrator of the offence shall be punished by imprisonment of five to fifteen years in the case of paragraph 1 and by imprisonment of one to ten years in the case of paragraph 2. If the violence resulted in the death of the victim the perpetrator of the offence shall be punished by imprisonment of ten to twenty years in the case of paragraph 1 and by imprisonment of five to fifteen years in the case of paragraph 2.”

Under the Code of Criminal Procedure the remedies against a judgment by a chamber of a Regional Court are, on the one hand, a plea of nullity (Nichtigkeitsbeschwerde) and, on the other, an appeal against sentence (Berufung). A plea of nullity has to be addressed to the Supreme Court while an appeal against sentence has to be addressed to the Court of Appeal. Section 281 enumerates exhaustively the various grounds for nullity which can be invoked in a plea of nullity. They comprise such elements as participation of an excluded judge (S. 281 § 1 (1)), lack of proper assistance by a defence counsel (S. 281 § 1 (1a)) or breach of a provision of the Code of Criminal Procedure for which the sanction of nullity is expressly provided for (S. 281 § 1 (3). Moreover, it is a ground for nullity if, due to incorrect interpretation, an inapplicable legal provision has been applied to the act underlying a judgment (s. 281 § 1 (10)). In a plea of nullity the assessment of evidence by the Regional Court cannot be challenged unless in the judgment the assessment of evidence is not set out, or if it is unclear, illogic, or in contradiction to the case file (S. 281 § 1 (5) and (5a).

COMPLAINTS

The applicants complain under Article 6 of the Convention about their conviction and maintain that their trial was unfair. They submit that their conviction was based on incorrect facts; that the Regional Court refused to hear witnesses requested by them; that the presiding judge at the trial was biased because he had refused to accept F.D.’s note of 18 June 1997; and that the re-qualification of the offence by the trial court from rape under section 201 § 2 of the Penal Code to rape under section 201 § 1 without any prior change to the indictment prevented them from exercising their defence rights properly.

THE LAW

1. The applicants complain under Article 6 of the Convention about their conviction and maintain that their trial was unfair. 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 ...

3.  Everyone charged with a criminal offence has the following minimum rights: ...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(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 the Convention. 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 (Garcia Ruiz v. Spain judgment of 21 January 1999, Reports of Judgments and Decisions 1999-I, § 28; Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, ECHR 2000-I).

The Court observes that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1. For this reason, it considers it appropriate to examine the following complaints under the two provisions taken together (Artner v. Austria judgment of 28 August 1992, Series A no. 242-A, p. 10, § 19; Pullar v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, § 45).

a. The applicants submit that the Regional Court refused to hear further witnesses.

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), in principle, leaves to them the assessment whether it is appropriate to call witnesses. The Convention does not require the attendance and examination of every witness on the accused’s behalf (Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33).

The Court observes that the Regional Court rejected the applicants’ 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 reason to conclude that the refusal to take the evidence requested by the applicants was incompatible with Article 6. Having regard to the reasons given by the applicant’s for their requests for taking of evidence and the decision given by the Regional Court on their requests and the reasons given by the Supreme Court when deciding on this  
point in its decision on the applicants’ plea of nullity, the Court observes in particular that the evidence requested had no connection to the question whether or not the offence the applicants had been charged with involved particular violence.

b. The applicants submit further that the presiding judge at the trial was biased because he had refused to accept F.D.’s note of 18 June 1997

The Court recalls that the existence of impartiality for the purpose of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 28; Tierce and Others v. San Marino, nos. 24954/94, 24971/94, 00024972/94, §75, 25 July 2000).

The Court observes that on 25 May 1997 the applicants were convicted by the Regional Court and that the court’s judgment was pronounced orally in open court. Subsequently F.D. appeared in the office of the presiding judge and requested him to accept a declaration according to which she would avail herself in the future of her right as a spouse not to give evidence and that she relied on this right retroactively.

The Court cannot find that the mere fact that the presiding judge refused to take this note to the file after the trial had terminated and the judgment had been pronounced can give rise to doubts as to the presiding judge’s impartiality. Moreover, it fails to see how a judgment which has been pronounced publicly can be changed by other means than review by higher courts. The applicants’ fear that the presiding judge lacked impartiality can, therefore, not be regarded as objectively justified.

It follows that this part of the application is to be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicants complain that that the re-qualification of the offence by the trial court from rape under section 201 § 2 of the Penal Code to rape under section 201 § 1 without any prior change to the indictment prevented them from exercising their defence rights properly.

The Government submit that it flows from the “principle of prosecution” which governs criminal procedures in Austria that that the prosecution must bring a charge by filing a bill of indictment. Under the relevant law the subject matters of an indictment are essentially elements of fact. Although a bill of indictment must also include the legal definition of the offence the accused is charged with, the courts are not bound by the legal qualification given by the prosecution. Criminal courts cannot convict an accused of an offence which was neither included in the bill of indictment itself nor to which the indictment was extended in the course of the trial, but this limitation only relates to the events which form the basis of the charges, not to the legal qualification.

 

In the present case the trial court had based its finding of guilt on established facts which are described in exactly the same manner as in the bill of indictment. Thus, the trial court did not go beyond the terms of the indictment, but merely found that the requirements of the offence of rape under Section 201 § 1 of the Criminal Code - instead of Section 201 § 2 - were fulfilled by the incriminated act. Since the trial court, in doing so, did not rely on any additional element, the applicants could not have been hindered in preparing their defence. The applicants, who had been assisted by counsel throughout the proceedings, must have been well aware of the possibility that the trial court might adopt a different legal qualification than the prosecution as regards the element of violence involved.

Moreover already the court of first instance convicted the applicants of the offence under Section 201 § 1 of the Criminal Code. Instead of merely arguing in their pleas of nullity that the Regional Court had exceeded the bill of indictment, the applicants could have explained why they believed that the established facts ought to be subsumed under Section 201 § 2 of the Criminal Code. This would have enabled the Supreme Court to deal with the matter and decide on the merits. The applicants had sufficient time at their disposal to bring such arguments.

This is disputed by the applicants. They submit that the possibility of a conviction under Section 201 § 1 of the Criminal Code was neither raised by the public prosecutor at any stage of the trial nor were the applicants warned of this possibility by the presiding judge and invited to comment thereon. The modification of the offence was therefore a complete surprise for them. Without any warning the Regional Court convicted the applicant of an offence which carried the double maximum penalty than the offence contained in the bill of indictment.

In the applicants’ view it cannot be decisive whether there was the theoretical possibility of a different qualification of the offence by the prosecution and the trial court which the defence should have anticipated. Rather, the concrete situation in the criminal proceedings at issue and the conduct of all parties involved must be taken into account. If an experienced public prosecutor submits a precise bill of indictment and the possibility of an extension of the indictment is not even alluded to at the trial the defence cannot be compelled to take into account alternative possibilities.

The applicants also refute the Government’s argument that in the proceedings on the plea of nullity shortcomings of the first instance proceedings could have been remedied, as the Supreme Court had only a very limited possibility of review of the first instance proceedings.

 

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court

by a majority

Declares admissible, without prejudging the merits, the applicants’ complaint that the re-qualification of the offence by the trial court from rape under section 201 § 2 of the Penal Code to rape under section 201 § 1 prevented them from exercising their defence rights properly;

unanimously

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Deputy Registrar President

I.H. and Others v. AUSTRIA DECISION


I.H. and Others v. AUSTRIA DECISION