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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> WINDISCH v. AUSTRIA - 12489/86 [1990] ECHR 23 (27 September 1990)
URL: http://www.bailii.org/eu/cases/ECHR/1990/23.html
Cite as: 13 EHRR 281, (1991) 13 EHRR 281, [1990] ECHR 23
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In the Windisch case*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of the Rules of Court**, as a Chamber
composed of the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr F. Matscher,
Mr R. Macdonald,
Mr R. Bernhardt,
Mr J. De Meyer,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 April and 28 August
1990,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 25/1989/185/245. The first number is
the case's position on the list of cases referred to the
Court in the relevant year (second number). The last two
numbers indicate the case's position on the list of cases
referred to the Court since its creation and on the list of
the corresponding originating applications to the
Commission.
** The amendments to the Rules of Court which entered into
force on 1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 October 1989,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 12489/86) against the Republic of Austria
lodged with the Commission under Article 25 (art. 25) by an
Austrian citizen, Mr Harald Windisch, in October 1986.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as
to whether or not the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 (art. 6) of
the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30). The applicant, who was
referred to as "W" in the proceedings before the Commission,
subsequently agreed to the disclosure of his identity.
3. The Chamber to be constituted included ex officio Mr F.
Matscher, the elected judge of Austrian nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)). On 25 November 1989 the
President drew by lot, in the presence of the Registrar, the
names of the other five members, namely Mr J. Pinheiro Farinha,
Mr R. Macdonald, Mr R. Bernhardt, Mrs E. Palm and Mr I. Foighel
(Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43). Subsequently, Mr J. Cremona and Mr J. De Meyer,
substitute judges, replaced Mr Pinheiro Farinha and Mrs Palm, who
were unable to take part in the consideration of the case
(Rule 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Austrian Government ("the Government"), the Delegate of
the Commission and the applicant's lawyer on the need for a
written procedure (Rule 37 para. 1). In accordance with the
orders made in consequence, the registry received, on 19 February
and 8 March 1990 respectively, the Government's memorial and the
applicant's claims under Article 50 (art. 50). On 28 November
1989 the President had granted the applicant leave to use the
German language (Rule 27 para. 3).
In a letter of 15 March 1990 the Secretary to the Commission
informed the Registrar that the Delegate would submit his
observations at the hearing. Subsequently, the Secretary
produced a number of documents requested by the Registrar on the
President's instructions.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 18 January
1990 that the oral proceedings should open on 23 April 1990
(Rule 38).
6. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr H. Türk, Ambassador, Ministry of Foreign Affairs, Agent,
Mr W. Okresek, Federal Chancellery,
Mr S. Benner, Staatsanwalt, Advisers;
(b) for the Commission
Mr F. Ermacora, Delegate;
(c) for the applicant
Mrs W. Walch, Rechtsanwalt, Counsel.
The Court heard their addressess and their replies to its
questions.
7. On 3 May 1990 counsel for the applicant filed a document
setting out in detail the latter's claims for costs and expenses.
The Government's comments thereon were received at the registry
on 22 May.
AS TO THE FACTS
A. The particular circumstances of the case
8. The applicant, a pensioner of Austrian nationality, is at
present residing in Innsbruck.
9. On the night of 20 to 21 May 1985 a burglary was committed
in a café at Stams, in the Tyrol. From footprints found at the
scene of the crime, the police inferred that at least two persons
had taken part in the burglary.
10. On the following day two women, a mother and a daughter,
came to the police station. After having received the assurance
that their anonymity would be respected, they reported to the
officers in charge that, on the previous evening, they had seen
two men in a minibus in the vicinity of the place where the crime
had been committed. One of the men had passed them in the
street, under a street lamp, at approximately 10.00 p.m., his
face partly covered by a handkerchief. The suspicious appearance
of the men led the two witnesses to take down the licence number
of the minibus.
The police arrested the owner of the minibus, who denied
having had anything whatsoever to do with the burglary. As to
the second man referred to by the anonymous witnesses, suspicion
first fell on a former waiter at the café, but he had an alibi
for the evening in question. The investigations then
concentrated on his acquaintances, including the applicant.
Subsequently, the police informants were shown various
photographs of the applicant and they recognised him as being the
man who had passed them in the street.
11. Mr Windisch was arrested on 24 June 1985. On the following
day the police arranged for a "covert confrontation" of the
applicant with the two witnesses. It took place in Stams at
noon: they were sitting in a car some seven to ten metres from
the suspect and could not be seen by him; he was holding a
handkerchief in front of his face. They had no hesitation in
identifying him as one of the men they had seen. The applicant
denied having been at Stams, claiming that he had been in
Innsbruck throughout the night in question.
On 24 July 1985 he and the owner of the minibus were charged
with burglary (schwerer Diebstahl durch Einbruch).
12. The Innsbruck Regional Court (Landesgericht) held a hearing
on 6 November 1985 during which two police officers gave evidence
concerning the statements made by the two witnesses mentioned
above. Their identity was not, however, disclosed in the court
proceedings.
The applicant's requests to have those witnesses summoned to
appear and to be confronted with them were rejected by the
Regional Court. It noted that the police officers concerned had
promised not to reveal the names of the witnesses, who feared
retaliation, and that the Tyrol Police Department
(Landesgendarmeriekommando) had not released the officers from
their duty of secrecy in this respect. The court also considered
that the police officers' testimony established sufficiently what
the two women had seen and that they were reliable. The decision
not to disclose their identity was therefore justified.
13. On 20 November 1985 the Regional Court, after hearing
evidence from several witnesses, including another police
officer, convicted the applicant and his co-accused of burglary
and indicated orally the principal grounds for its decision. Mr
Windisch was sentenced to three years' imprisonment, from which
the periods of detention on remand were to be deducted. He
stated immediately that he intended to lodge an application for a
declaration of nullity (Nichtigkeitsbeschwerde) and an appeal
against sentence (Berufung).
14. The written judgment of the Innsbruck Regional Court was
served on the applicant on 10 December 1985. Extensive reference
was made therein to the statements of the two unidentified
witnesses to the police. In relation to the question of their
anonymity, the court stated:
"The names of these two women are not known to the court.
The Tyrol Police Department had not released the
investigating officers from their duty of secrecy, and they
could not therefore disclose the identity of the two women.
The court is bound by this decision ... . In this
connection it should be stated that the police are under
instructions to co-operate with the public in investigating
crime. The two women asked the investigating officers not
to disclose their names, because they are afraid of
reprisals. The two women are simple but trustworthy
persons. The investigating officers of the criminal
investigation department can be relied upon for this kind of
assessment. It is therefore entirely acceptable that the
two persons should remain anonymous."
The Regional Court also took into consideration that another
witness had provided the applicant, at his request, with certain
details concerning the victim and his financial situation, and
that the two defendants had been seen in Innsbruck, leaving a bar
together, shortly before the events in question. Furthermore,
the court found that the evidence given by the sixteen witnesses
called on Mr Windisch's behalf had failed to establish an alibi.
It concluded that Mr Windisch, together with his co-accused, had
committed the crime.
15. On 20 March 1986 the Supreme Court (Oberster Gerichtshof)
rejected Mr Windisch's application for a declaration of nullity.
In its view, his request to have the anonymous witnesses summoned
and examined could serve no purpose since it had not been
specified how their identity would be established and because the
police had refused to answer enquiries in this respect. It would
have been possible to identify the two witnesses by taking
evidence from X, whom, according to their statement, they had met
on the evening in question. However, the applicant had not
submitted any request to this effect.
The applicant's appeal against sentence was dismissed on
24 April 1986.
16. By a letter of 25 July 1990 the Government informed the
Registrar that the Attorney-General had recently brought before
the Supreme Court a plea of nullity for the preservation of the
law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes - Article 33
of the Code of Criminal Procedure) against the judgment
of 20 November 1985.
B. The relevant domestic law
17. The taking of evidence at a trial is governed by Articles
246 to 254 of the Code of Criminal Procedure
(Strafprozessordnung).
Article 247 para. 1 provides that "witnesses and experts
shall be called separately and heard in the presence of the
accused". The presiding judge and the other members of the
court, the public prosecutor, the accused, the party seeking
damages and their representatives may question them (Article
249). However, in certain exceptional circumstances, their
previous statements may be read out at the hearing (Article 252).
No provision deals expressly with statements made by
anonymous witnesses and hearsay evidence.
18. The assessment of evidence by the trial court is provided
for in Article 258, which reads as follows:
"(1) In passing judgment the court shall only have regard
to what has occurred at the trial ...
(2) The court has to examine the evidence carefully and
conscientiously with regard to its trustworthiness and
conclusiveness separately and in its entirety. The judges
do not decide upon the question whether or not a particular
fact has been proven according to formal rules of evidence,
but only according to their own conclusions drawn on the
basis of their careful examination of all evidence before
them."
PROCEEDINGS BEFORE THE COMMISSION
19. In his application (no. 12489/86) lodged with the Commission
on 2 October 1986, Mr Windisch alleged a breach of Article 6
para. 3 (d) (art. 6-3-d) of the Convention on the ground that he
had been convicted solely on the basis of evidence given by two
anonymous witnesses, who had not been heard by the Regional Court
and whom he had had no opportunity to examine.
20. The Commission declared the application admissible on
14 December 1988. In its report of 12 July 1989 (Article 31)
(art. 31), the Commission expressed the unanimous opinion that
there had been a violation of paragraph 1, read in conjunction
with paragraph 3 (d), of Article 6 (art. 6-1, art. 6-3-d). The
full text of the Commission's opinion is reproduced as an annex
to this judgment.*
_______________
* Note by the Registrar: For practical reasons this annex
will appear only with the printed version of the judgment
(volume 186 of Series A of the Publications of the Court),
but a copy of the Commission's report is obtainable from the
registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
21. At the hearing on 23 April 1990, counsel for Mr Windisch
requested the Court to find that the applicant's rights under
paragraph 1 of Article 6 of the Convention, taken together with
paragraph 3 (d) (art. 6-1, art. 6-3-d), had been infringed and to
grant him the compensation claimed.
The Agent of the Government, for his part, asked the Court
to conclude that "there has been no violation of the ...
Convention ... in the criminal proceedings underlying the
application".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6)
22. Mr Windisch complained that he had been convicted by the
Innsbruck Regional Court on the basis of statements made by two
anonymous witnesses, which were of decisive importance for the
assessment of the other evidence. He alleged a violation of the
following provisions of Article 6 (art. 6) of the Convention:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal ...
2. ...
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."
This allegation was accepted by the Commission, but
contested by the Government.
23. The guarantees in paragraph 3 of Article 6 (art. 6-3) being
specific aspects of the right to a fair trial set forth in
paragraph 1 (art. 6-1), the Court will consider the applicant's
complaint under paragraphs 3(d) and 1 (art. 6-3-d, art. 6-1)
taken together (see, amongst various authorities, the Kostovski
judgment of 20 November 1989, Series A no. 166, p. 19, para. 39).
Although the two unidentified persons did not give direct
evidence in court, they are to be regarded for the purposes of
Article 6 para. 3(d) (art. 6-3-d) as witnesses - a term to be
given an autonomous interpretation (see the Bönisch judgment of
6 May 1985, Series A no. 92, p. 15, paras. 31-32) - since their
statements, as reported by the police officers, were in fact
before the Regional Court, which took them into consideration
(see paragraphs 12-14 above).
24. The Government attached crucial importance to the question
whether the applicant's conviction was based "mainly" on the two
anonymous witnesses' statements to the police; they concluded
that a number of additional and weighty items of evidence had had
to be evaluated. The Commission considered, on the contrary,
that there was no other independent incriminating evidence.
25. In this respect, the Court recalls at the outset that the
admissibility of evidence is primarily a matter for regulation by
national law, and that, as a rule, it is for the national courts
to assess the evidence before them (see, as the most recent
authority, the above-mentioned Kostovski judgment, Series A
no. 166, p. 19, para. 39). Accordingly, its task under the
Convention is to ascertain whether the proceedings considered as
a whole, including the way in which evidence was taken, were fair
(ibid.).
26. All the evidence must in principle be produced in the
presence of the accused at a public hearing with a view to
adversarial argument. However, the use as evidence of statements
obtained at the pre-trial stage is not always in itself
inconsistent with paragraphs 3(d) and 1 of Article 6 (art. 6-3-d,
art. 6-1), provided the rights of the defence have been
respected. As a rule, these rights require that the defendant be
given an adequate and proper opportunity to challenge and
question a witness against him, either when he was making his
statement or at a later stage of the proceedings (see the
above-mentioned Kostovski judgment, Series A no. 166, p. 20,
para. 41).
27. In the instant case, the two persons in question had only
been heard, at the investigation stage, by the police officers in
charge of the case, who later gave evidence in court concerning
their statements; they were neither examined by the trial court
itself, nor questioned by any examining magistrate (see
paragraphs 10-13 above). Likewise, their identification of the
applicant had taken place in special circumstances, during a
"covert confrontation" of which he was not aware (see
paragraph 11 above).
As a result, neither the applicant nor his counsel - in
spite of their repeated requests (see paragraph 12 above) - ever
had an opportunity to examine witnesses whose evidence had been
taken in their absence, was later reported by third persons
during the hearings and was, as appears from the judgment of
20 November 1985 (see paragraph 14 above), taken into account by
the trial court.
28. At the hearings on 6 and 20 November 1985 the defence was
admittedly able to question, in relation to the two women's
statements, three of the police officers connected with the
investigation. Furthermore, according to the Government, the
applicant could have put written questions to the women, had he
so requested at the trial. These possibilities cannot, however,
replace the right to examine directly prosecution witnesses
before the trial court. In particular, the nature and scope of
the questions that could be put in either of these ways were, in
the circumstances of the case, considerably restricted by reason
of the decision to preserve the anonymity of these two persons
(see paragraphs 12 and 14 above; see also the above-mentioned
Kostovski judgment, Series A no. 166, p. 20, para. 42).
Being unaware of their identity, the defence was confronted
with an almost insurmountable handicap: it was deprived of the
necessary information permitting it to test the witnesses'
reliability or cast doubt on their credibility (ibid.).
29. In addition, the trial court, which was also unaware of the
two women's identity, was prevented from observing their
demeanour under questioning and thus forming its own impression
of their reliability (see the above-mentioned Kostovski judgment,
Series A no. 166, p. 20, para. 43). The police officers'
evidence on this point at the hearings cannot be regarded as a
proper substitute for direct observation.
30. The Government referred to the legitimate interest of the
two women in keeping their identity secret. In its judgment the
Regional Court stated that they were trustworthy persons and were
afraid of reprisals on the part of the suspects. It added that
the police depended on the co-operation of the population in
investigating crimes (see paragraph 14 above).
The collaboration of the public is undoubtedly of great
importance for the police in their struggle against crime. In
this connection the Court notes that the Convention does not
preclude reliance, at the investigation stage, on sources such as
anonymous informants. However, the subsequent use of their
statements by the trial court to found a conviction is another
matter (see, mutatis mutandis, the above-mentioned Kostovski
judgment, Series A no. 166, p. 21, para. 44). The right to a
fair administration of justice holds so prominent a place in a
democratic society that it cannot be sacrificed (ibid.).
31. It must be stressed, as was done by the applicant, that in
this case no one had observed the actual commission of the
offence; the information given and the identification made by the
two anonymous witnesses were the only evidence indicating the
applicant's presence on the scene of the crime, which question
was the central issue during the investigation and at the
hearings (see paragraphs 10 and 12 above). In convicting the
applicant the trial court relied to a large extent on this
evidence (see paragraph 14 above).
In these circumstances, the use of this evidence involved
such limitations on the rights of the defence that Mr Windisch
cannot be said to have received a fair trial.
32. There has thus been a violation of paragraph 3 (d), taken
together with paragraph 1, of Article 6 (art. 6-3-d, art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
33. According to Article 50 (art. 50) of the Convention:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial
reparation to be made for the consequences of this decision
or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
Mr Windisch sought compensation for pecuniary and
non-pecuniary damage, as well as the reimbursement of costs and
expenses.
A. Damage
34. The applicant claimed 1,080,000 Austrian schillings for loss
of earnings and unjust imprisonment, on the ground that he would
not have been convicted by the Regional Court had it not been for
the statements of the two anonymous witnesses.
The Delegate of the Commission did not submit any comments
on this point.
In the Government's contention, there was no causal link
between the damage alleged and any violation found by the Court,
since the judgment in issue was not based "mainly" on the
statements made by the two anonymous persons. Although they
acknowledged that those depositions had played an important role,
the Government drew attention to a number of other elements which
lay at the basis of that judgment.
35. The Court is unable to accept this argument. The
applicant's detention after his conviction was the direct
consequence of the establishment of his guilt, which was effected
in a manner that did not comply with some of the requirements of
Article 6 (art. 6) (see, mutatis mutandis, the above-mentioned
Kostovski judgment, Series A no. 166, p. 22, para. 48).
However, at the hearing of 23 April 1990, counsel for the
Government referred to the possibility of the applicant's case
being reopened if the Attorney General decided - as has in fact
since happened (see paragraph 16 above) - to lodge a plea of
nullity for the preservation of the law. He mentioned, as an
example, the Unterpertinger case (judgment of 24 November 1986,
Series A no. 110), where the criminal proceedings involved had
been reopened as a result of the Court's judgment.
In consequence, the Court considers that the issue
concerning the granting of damages under Article 50 (art. 50) is
not yet ready for decision. It is therefore necessary to reserve
the matter, taking due account of the possibility of an agreement
between the respondent State and the applicant (Rule 54 paras. 1
and 4 of the Rules of Court).
B. Costs and expenses
36. Mr Windisch itemised his costs and expenses as follows:
(a) 93,720 schillings for the proceedings before the
Austrian courts;
(b) 86,526 schillings for the proceedings before the
Commission and the Court.
The Court will examine these claims in the light of the
criteria emerging from its case-law as regards both the purpose
of the costs allegedly incurred and the requirements that they be
actually incurred, necessarily incurred and reasonable as to
quantum (see, inter alia, the Campbell and Fell judgment
of 28 June 1984, Series A no. 80, pp. 55-56, para. 143).
37. The Government argued that the claim for costs allegedly
incurred in Austria was not justified, since the applicant had
been granted legal aid in the proceedings before the Innsbruck
Regional Court.
The Court notes that at the relevant time the applicant's
lawyer agreed to act on the basis that he would receive only the
fees payable by the competent Austrian authorities under the
national legal aid scheme. In these circumstances the applicant
must be considered as not having incurred a liability to pay any
additional fees (see, mutatis mutandis, the Luedicke, Belkacem
and Koç judgment of 10 March 1980, Series A no. 36, p. 8,
para. 15). Accordingly the Court cannot make any award under
this head.
38. Mr Windisch was also granted legal aid for the purposes of
the proceedings before the Commission and the Court. The
Government, for their part, did not contest that he had incurred
additional liabilities over and above the amounts so received,
but maintained that the fees claimed for the filing of the
application form on 20 October 1986 were not reasonable as to
quantum.
The Court, however, considers that the amounts claimed
satisfy the criteria laid down in its case-law. It therefore
awards to the applicant, for his costs and expenses in
Strasbourg, 86,526 schillings, less 5,290 French francs already
paid by way of legal aid.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of paragraph 3 (d),
taken together with paragraph 1, of Article 6 (art. 6-3-d,
art. 6-1) of the Convention;
2. Holds that the question of the application of Article 50
(art. 50), as regards an award of damages, is not ready for
decision;
accordingly,
(a) reserves this part of the said question;
(b) invites the Government and the applicant to submit,
within the coming three months, their written comments
thereon and, in particular, to notify the Court of any
agreement reached between them;
(c) reserves the further procedure and delegates to the
President of the Court power to fix the same if need be;
3. Holds that Austria is to pay to the applicant, in respect
of costs and expenses, the sum of 86,526 (eighty-six
thousand five hundred and twenty-six) Austrian schillings,
less 5,290 (five thousand two hundred and ninety) French
francs already paid by way of legal aid;
4. Rejects the remainder of the claim for costs and expenses.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
27 September 1990.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar