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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ASCH v. AUSTRIA - 12398/86 [1991] ECHR 28 (26 April 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/28.html
Cite as: 15 EHRR 597, (1993) 15 EHRR 597, [1991] ECHR 28
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In the Asch 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 F. Matscher,
Sir Vincent Evans,
Mr R. Macdonald,
Mr C. Russo,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr J. De Meyer,
Mr N. Valticos,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 November 1990 and 20 March 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 30/1990/221/283. 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.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
*** The amendments to the Rules of Court which came 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 21 May 1990 and then by the
Austrian Government ("the Government") on 20 July, within the
three-month period laid down by Article 32 par. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 12398/86) against the Republic of Austria lodged with
the Commission under Article 25 (art. 25) by an Austrian national,
Mr Johann Asch, on 22 August 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
Government's application referred to Article 48 (art. 48). The object
of the request and of the application was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 6 paras. 1 and 3 (d) (art. 6-1,
art. 6-3-d).
2. In response to the enquiry made in accordance with Rule 33
par. 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).
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 par. 3 (b)). On 24 May 1990, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Sir Vincent Evans, Mr R.Macdonald, Mr C. Russo,
Mr R. Bernhardt, Mr A. Spielmann, Mr J. De Meyer and Mr N. Valticos
(Article 43 in fine of the Convention and Rule 21 par. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 par. 5) and, through the Registrar, consulted the Agent of the
Government, the Delegate of the Commission and the lawyer for the
applicant on the need for a written procedure (Rule 37 par. 1). In
accordance with the order made in consequence, the Registrar received
the applicant's memorial on 3 October; the latter had been authorised
by the President to use the German language (Rule 27 par. 3). On the
same day the Government indicated that they did not wish to submit a
memorial.
5. In a letter of 5 November 1990 the Deputy Secretary to the
Commission informed the Registrar that the Delegate would submit his
observations at the hearing. The Commission produced various documents
which, on the instructions of the President, the Registrar had
requested from it.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 27 July 1990 that
the oral proceedings should open on 19 November 1990 (Rule 38).
7. 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 W. Okresek, Federal Chancellery, Agent,
Mr F. Haug, Ministry of Foreign Affairs,
Mrs I. Gartner, Ministry of Justice, Advisers;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicant
Mr S. Gloss, Rechtsanwalt, Counsel.
The Court heard addresses by the above-mentioned representatives.
AS TO THE FACTS
I. The particular circumstances of the case
8. Mr Johann Asch, an Austrian national, resides at Laaben in
Austria.
9. In the night of 5 to 6 July 1985 a dispute broke out between
him and the woman he lived with, Mrs J.L. She left the house and took
refuge at her mother's home.
The following morning she consulted a doctor. He sent her the
same day to the St Pölten hospital then transmitted to that
establishment a certificate dated 9 July attesting that she was
suffering from multiple bruising and headaches. A report drawn up by
the hospital, dated 11 July, stated that she claimed to have been
struck with a belt and that she had several bruises on her body and one
on her head.
10. In the evening of 6 July Mrs J.L. reported the incident to the
Brand-Laaben police (Gendarmerie). She alleged that the applicant had
threatened to use violence on her if she did not get out immediately.
As she had refused to obey, he had hit her with a belt on her back, on
her arms and on her legs. Seeing him seize a rifle, she had tried to
reason with him and then taken advantage of a moment of calm to escape.
11. The police officer who had taken down this statement,
Officer B., informed the public prosecutor's office of St Pölten by
telephone the same evening; he was instructed by that office to file
a report (anzeigen) concerning Mr Asch, but not to arrest him.
12. On the morning of 10 July Mrs J.L. went back to the
Brand-Laaben police station to inform the relevant officers that she
and the applicant had been reconciled and that she had returned to live
with him on 7 July. She expressed her wish to withdraw her complaint.
13. Questioned at the police station in the evening, the applicant
denied that he had ill-treated Mrs J.L. or threatened her with a rifle.
She had, he claimed, only a scratch on her back; in addition, she had
explained to him that she had lodged a complaint because she had been
furious with him.
14. On 16 July 1985 the Brand-Laaben police sent a report on
Mr Asch to the Neulengbach District Court. They substantially repeated
the allegations made by Mrs J.L. and produced the medical certificate
of 9 July, the hospital report of 11 July and the records of the
statements of the applicant and his woman friend, of 6 and 10 July
(see paragraphs 9-10 and 13 above).
15. On 7 August 1985 the St Pölten public prosecutor's office
committed the applicant for trial before the Regional Court
(Kreisgericht) of that town on charges of intimidation (Nötigung,
Article 105 of the Criminal Code) and causing actual bodily harm
(Körperverletzung, Article 83). At the hearing on 15 November 1985
Mr Asch protested his innocence; according to him, Mrs J.L. had hurt
herself in the night of 5 to 6 July when she struck the end of the bed.
However, he admitted having attacked her and having pushed her away
from him.
16. When questioned by the court, Mrs J.L. availed herself of her
right to refuse to give evidence (see paragraph 20 below).
Subsequently Officer B. testified; he recounted the statements that she
had made before him on 6 July 1985 and told the court that she had
appeared to him to have been scared. She had shown to him the bruises
on her arm and the bandage which covered a part of her back. No
further applications being made by the parties, the judge ordered the
report of 16 July, the interview record of 6 July 1985 (see paragraphs
10-11 and 14 above) and an extract from Mr Asch's criminal record to
be read out.
17. On 15 November 1985 the court convicted Mr Asch of intimidation
and causing actual bodily harm and sentenced him to a fine of
80 schillings per day for 180 days. On the basis of the statements
made at the hearing by the accused and by Officer B., the police
investigation and the other evidence before it, the court found the
facts to be established as described by Mrs J.L. on 6 July. According
to the judgment, they were corroborated by the doctor's diagnosis.
Moreover the evidence revealed Mr Asch's irascible and unpredictable
personality and thus made the version given by Mrs J.L. plausible. The
court did not find credible the accused's claims that she had
deliberately falsely accused him.
18. The applicant appealed. He complained inter alia that the
first-instance court had had the record of Mrs J.L.'s statements (see
paragraphs 10-11 above) read out at the hearing, without having asked
him to comment on this document or having questioned him or Mrs J.L.
He also asked the appeal court to order an expert medical opinion and
to effect a search of the premises, as, he contended, the
first-instance court ought to have done. In his view, the fact that
Mrs J.L. had withdrawn her complaint had deprived the prosecution
brought against him of its legal basis.
19. On 19 March 1986 the Court of Appeal (Oberlandesgericht) of
Vienna upheld the contested judgment. It ruled inter alia that,
according to well-established case-law, Article 252 par. 2 of the Code
of Criminal Procedure (see paragraph 21 below) required the court
before which the proceedings were pending to have the statements made
outside court by witnesses who had refused to appear in court read out
at the hearing, when such statements related to important points. The
Court of Appeal also held that Mr Asch had failed to give sufficient
reasons for his request for an expert opinion, since he had provided
no evidence casting doubt on the cause of the victim's injuries.
II. The relevant domestic law
20. Under Article 152 par. 1, sub-paragraph 1, of the Code of
Criminal Procedure, the members of the accused's family as referred to
in Article 72 of the Criminal Code are exempted from giving evidence;
they include cohabitees.
21. Paragraphs 2 and 3 of Article 252 of the Code of Criminal
Procedure are worded as follows:
"2. The records of on-the-spot inspections and police reports, as well
as the accused's criminal record and any other material documents or
written evidence, shall be read out at the hearing, unless both parties
agree to dispense with this proceeding.
3. After each such document has been read out, the accused shall be
asked if he wishes to make any comments thereon."
PROCEEDINGS BEFORE THE COMMISSION
22. In his application (no. 12398/86) lodged with the Commission
on 22 August 1986, Mr Asch complained that he had been convicted solely
on the basis of the statements of Mrs J.L., who had not given evidence
before the Regional Court; he relied on Article 6 paras. 1 and 3 (d)
(art. 6-1, art. 6-3-d) of the Convention.
23. The Commission declared the application admissible on
10 July 1989. In its report of 3 April 1990 (Article 31) (art. 31),
it expressed the opinion by twelve votes to five that there had been
a violation of paragraph 1 of Article 6, taken together with
paragraph 3 (d) (art. 6-1, art. 6-3-d) thereof. The full text
of its 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 203 of Series A
of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 6 (art. 6)
24. The applicant complained of a breach 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 [a] ...
tribunal ... .
... .
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;
... ."
According to the applicant, his conviction by the St Pölten Regional
Court was based solely on the statements of Mrs J.L. to the police,
which were read out at the hearing notwithstanding that she had
withdrawn her complaint and refused to give evidence in court. He
claimed that at no stage of the proceedings had he had the opportunity
to examine her or to have her examined. By rejecting his application
for an expert medical opinion, the Vienna Court of Appeal had moreover
deprived him of the sole means of contesting effectively at least some
of Mrs J.L.'s allegations, namely those accusing him of causing actual
bodily harm.
The Commission accepted in substance the applicant's views; the
Government disputed them. They considered that Mrs J.L.'s statements
constituted only one item of evidence amongst others. They regarded
it as decisive that before the first-instance court Mr Asch had not
questioned the police officer, had failed to call any witnesses and had
not submitted any other application. On this basis they concluded that
the applicant could not claim that the rights of the defence had been
infringed.
25. As the guarantees in paragraph 3 of Article 6 (art. 6-3) are
specific aspects of the right to a fair trial set forth in
paragraph 1 (art. 6-1), the Court will consider the complaint under the
two provisions taken together (see, among other authorities, the Isgrò
judgment of 19 February 1991, Series A no 194-A, p. 12, par. 31).
Although Mrs J.L. refused to testify at the hearing she should, for the
purposes of Article 6 par. 3 (d) (art. 6-3-d), be regarded as a witness
- a term to be given an autonomous interpretation (ibid., p. 12,
par. 33) - because her statements, as taken down in writing by
Officer B. and then related orally by him at the hearing, were in fact
before the court, which took account of them.
26. The admissibility of evidence is primarily a matter for
regulation by national law and, as a rule, it is for the national
courts to assess the evidence before them. The Court's task is to
ascertain whether the proceedings considered as a whole, including the
way in which evidence was taken, were fair (ibid., p. 11, par. 31).
27. All the evidence must normally be produced in the presence of
the accused at a public hearing with a view to adversarial argument.
This does not mean, however, that the statement of a witness must
always be made in court and in public if it is to be admitted in
evidence; in particular, this may prove impossible in certain cases.
The use in this way of statements obtained at the pre-trial stage is
not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6
(art. 6-1, art. 6-3-d), provided that 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 statements or at a
later stage of the proceedings (ibid., p. 12, par. 34).
28. In this instance, before the trial court only Officer B.
recounted the facts of the case, as Mrs J.L. had described them to him
on the very day of the incident. It would clearly have been preferable
if it had been possible to hear her in person, but the right on which
she relied in order to avoid giving evidence cannot be allowed to block
the prosecution, the appropriateness of which it is moreover not for
the European Court to determine. Subject to the rights of the defence
being respected, it was therefore open to the national court to have
regard to this statement, in particular in view of the fact that it
could consider it to be corroborated by other evidence before it,
including the two medical certificates attesting to the injuries of
which Mrs J.L. had complained (see paragraph 9 above).
29. Furthermore, Mr Asch had the opportunity to discuss Mrs J.L.'s
version of events and to put his own, first to the police and later to
the court. However, on each occasion he gave a different version,
which tended to undermine his credibility (see paragraphs 13, 15 and
17 above).
Moreover, the applicant chose not to question Officer B. on, in
particular, the latter's own findings (see paragraph 16 above) or to
call other witnesses (see paragraph 9 above).
On the question of the expert medical opinion concerning the alleged
injuries, Mr Asch only sought such a measure on appeal, at a time when
it could reasonably have been supposed that the marks caused by the
blows had disappeared. In any event, the Court of Appeal found the
reasons stated in his application to be insufficient (see paragraph 19
above).
30. Above all it is clear from the file that Mrs J.L.'s statements,
as related by Officer B., did not constitute the only item of evidence
on which the first-instance court based its decision. It also had
regard to the personal assessment made by that officer as a result of
his interviews with Mrs J.L. and the applicant, to the two concurring
medical certificates, to the police investigation and to the other
evidence appearing in Mr Asch's file (see paragraphs 16-17 above).
In this respect, the present case is distinguishable from the
Unterpertinger case (judgment of 24 November 1986, Series A no. 110)
and the Delta case (judgment of 19 December 1990, Series A no. 191-A).
31. The fact that it was impossible to question Mrs J.L. at the
hearing did not therefore, in the circumstances of the case, violate
the rights of the defence; it did not deprive the accused of a fair
trial. Accordingly, there has been no breach of paragraphs 1 and 3 (d)
of Article 6 (art. 6-1, art. 6-3-d), taken together.
FOR THESE REASONS, THE COURT
Holds by seven votes to two that there has been no violation of
paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d) taken
together.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 26 April 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 par. 2 (art. 51-2) of the Convention and
Rule 53 par. 2 of the Rules of Court, the joint dissenting opinion
of Sir Vincent Evans and Mr Bernhardt is annexed to the present
judgment.
Initialled: R. R.
Initialled: M.-A. E.
JOINT DISSENTING OPINION OF JUDGES SIR VINCENT EVANS AND BERNHARDT
1. We are unable to share the view of the majority of the Court
that there was no violation of Article 6 (art. 6) of the Convention in
this case.
2. The St Pölten Regional Court found Mr Asch guilty of two
offences against Mrs J.L. - intimidation, in particular by threatening
her with a rifle, and causing her actual bodily harm. In reaching its
findings the court had regard to the statement made at the trial by
Officer B., the contents of the police report and the applicant's
answers to the charges against him. Nevertheless, it was on Mrs J.L.'s
statement to the police, which she refused to confirm at the hearing
before the court, that Mr Asch's convictions on both counts were
essentially based. It is true that there was corroborative evidence
that in the course of their quarrel she had suffered injuries, but he
contended that they were the result of an accident and he denied the
allegation that he had threatened her with a rifle. Because Mrs J.L.
availed herself of the right to refuse to give evidence at the trial
there was no opportunity at any stage of the proceedings for the
applicant or his lawyer "to examine" her as a witness against him in
accordance with paragraph 3 (d) of Article 6 (art. 6-3-d).
3. While we concur with the approach of the European Court to the
interpretation of the relevant provisions of Article 6 (art. 6) as
stated in paragraphs 25-27 of the Court's judgment, the question
remains whether the rights of the defence were duly respected in this
case.
4. It is pertinent to note that Mrs J.L.'s statement to the police
was made several hours after the alleged attack. In the circumstances
the possibility could by no means be excluded that her version of
events was incorrect in material respects. There was further reason
to question its veracity when she decided to withdraw her complaint and
refused to confirm her statement at the hearing before the St Pölten
Regional Court. In a case of this kind the need to establish the true
facts beyond reasonable doubt is, of course, relevant not only to the
question whether the accused was guilty of the offences charged but
also, in the event of conviction, to the fixing of the sentence to be
imposed.
5. We in no way call into question the compatibility with the
Convention of the right under Austrian law of Mrs J.L. to refuse to
give evidence at the hearing. In consequence of the exercise by her
of this right, however, we are of the view that Mr Asch was, as in the
case of Mr Unterpertinger (see the Court's judgment of 24 November
1986, Series A no. 110), convicted on the basis of testimony in respect
of which his defence rights were restricted to an extent that he did
not have a fair trial.
6. For these reasons we conclude that there was a breach of
paragraph 1, taken in conjunction with paragraph 3 (d), of Article 6
(art. 6-1, art. 6-3-d) of the Convention.