CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 13468/87                       by B.                       against Austria           The European Commission of Human Rights sitting in private on 10 July 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 21 October 1987 by B. against Austria and registered on 9 December 1987 under file No. 13468/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to :        -   the Commission's decision of 15 July 1988 to bring         the application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government on         17 November 1988 and the observations in reply submitted         by the applicant on 19 April 1989;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is an Austrian citizen born in 1939 who resides at Hadres, Lower Austria.   He is represented by Dr. Werner Sporn, a lawyer practising in Vienna.           The facts as submitted by the parties may be summarised as follows:           The applicant has introduced a previous application concerning criminal proceedings (No. 11170/84) which the Commission declared admissible on 14 July 1987.   In that application the applicant complained of a conviction of adulteration (Verfälschung) of wine by dilution with water under Section 45 para. 1 (a) of the Wine Act 1961. The judgment pronounced by the District Court (Bezirksgericht) of Haugsdorf on 14 February 1984 was confirmed on appeal by a judgment of the Regional Court (Kreisgericht) of Korneuburg on 7 May 1984.           Two further criminal proceedings were subsequently instituted against the applicant.   One of those proceedings concerned a charge of calumny (Verleumdung) under Section 297 of the Penal Code, based on the allegation that the applicant had wrongly accused the Federal Cellar Inspector (Bundeskellereiinspektor) of having followed an irregular procedure when drawing the first wine samples on 16 May 1983.   On that date, three types of samples had been taken from the applicant's wine tanks which had then been officially seized (Beschlagnahme) and sealed.           The calumny proceedings were instituted against the applicant (and also his wife and two sons) following a request of the Public Prosecutor of 20 August 1984.   He submitted that in the first criminal proceedings under the Wine Act the applicant and his family had wrongly accused the Federal Cellar Inspector.   Before the police and at the trial they had stated that the Cellar Inspector had used a dirty bucket for drawing the samples from the applicant's wine tanks, and that some water had been in the bottles into which the samples had been filled.   After objections by the applicant, the Cellar Inspector had allegedly emptied the remaining bottles.   The Cellar Inspector and his assistant had denied these allegations when heard as witnesses at the applicant's trial in the case under the Wine Act.   By making these false allegations against the Cellar Inspector the applicant was said to have exposed the latter to the danger of disciplinary proceedings and to have thus committed the offence of calumny.           On 29 October 1984 the Regional Court of Korneuburg convicted the applicant as charged.   It accepted that he had raised objections because of a residue of liquid in the bottles, but observed that the Cellar Inspector had explained to him that this was wine and he had also emptied the bottles as requested by the applicant.   The applicant, therefore, knowingly made an incorrect statement when declaring before the police and the Court that there had been a residue of water in these bottles.   Likewise, he had wrongly stated that a dirty bucket had been used.   The Federal Cellar Inspector and his assistanct had again confirmed their earlier statements in this respect.   The Court fixed a conditional prison sentence of three months.           The applicant's appeal against this judgment was rejected by the Vienna Court of Appeal (Oberlandesgericht) on 23 April 1985. The applicant states that he later found out that the Court of Appeal's judgment reproduced almost literally the observations (the so-called "Croquis") which had been submitted to this Court on 29 March 1985 in a non-public procedure by the Senior Public Prosecutor (Oberstaats- anwalt) of Vienna.   This document had not been communicated to the applicant who at the relevant time had no knowledge of its existence. The Government submit that the applicant's lawyer should have known the practice of the Court of Appeal to send the file to the Senior Public Prosecutor who may then submit written observations to the Court.   He could have asked for access to the file, in which case the said observations would have been disclosed to him.   The applicant submits that this procedure is not sufficient to secure equality of arms within the meaning of Article 6 para. 1 of the Convention and he contests that the practice of the Court of Appeal is in fact as described by the Government.   He submits that access to the file would not have included the Senior Public Prosecutor's observations.           In its judgment, the Court of Appeal held that Section 297 of the Penal Code applied to the incriminated statements of the applicant, which were wrong allegations likely to expose the Cellar Inspector to a danger of disciplinary proceedings.   It also found that there was no tacit renunciation of a prosecution by the public prosecutor who had not immediately reacted at the applicant's first trial.   Furthermore, the evaluation of the evidence by the Regional Court showed no procedural defects.   Finally, the Regional Court had imposed an adequate sentence.           Subsequently, upon the applicant's request, the Attorney General (Generalprokuratur) lodged a plea of nullity for safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes).   He submitted that the Court of Appeal had been wrongly composed.   The Supreme Court (Oberster Gerichtshof) allowed the plea of nullity on 28 January 1987, quashing the Court of Appeal's judgment and referring the case back to that Court.           At the new hearing before the Court of Appeal on 24 March 1987 the defence submitted that one of the judges had participated in the earlier appeal hearing and was therefore disqualified.   The hearing was adjourned until 28 April 1987, when the Court was composed according to the law.   It again rejected the applicant's appeal, confirming the reasons of its judgment of 23 April 1985.           The applicant again applied to the Attorney General to file a plea of nullity for safeguarding the law, but this application was rejected.   It was allegedly in connection with these latter proceedings that the applicant learnt of the Senior Public Prosecutor's submissions in the first appeal proceedings, and of the fact that the Court of Appeal's judgments of 23 April 1985 and 28 April 1987 adopted these submissions. COMPLAINTS           The applicant now complains           -   that the Regional Court violated his rights of defence (Article 6 para. 3 (c) of the Convention) by sentencing him for statements which he had made as a defendant   in earlier criminal proceedings;           -   that the principles of a "fair trial" and in particular the principle of "equality of arms" enshrined in Article 6 para. 1 were violated in that the Court of Appeal relied on submissions by the Senior Public Prosecutor which had not before been communicated to the defence.   PROCEEDINGS           The application was introduced on 21 October and registered on 5 December 1987.           On 15 July 1988 the Commission decided, pursuant to Rule 42 para. 2 (b) of the Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit before 10 November 1988 their observations in writing on the admissibility and merits of the application.   At the Government's request, the time-limit was subsequently extended until 15 November 1988.           The Government submitted their observations on 17 November 1988 and the applicant was invited to submit observations in reply before 2 January 1989.   On 30 December 1988 he requested an extension of this time-limit until 31 March 1989.   On 6 January 1989 the President of the Commission granted the extension only until 6 March 1989.   On 3 March 1989 the applicant again applied for an extension until 31 March 1989, however this was refused by the President on 8 March 1989. The applicant submitted observations in reply to the Government's observations after the expiration of the time-limit, on 19 April 1989.           On 16 December 1988 the Commission granted free legal aid to the applicant.   THE LAW   1.       The applicant's first complaint refers to criminal proceedings taken against him under the Wine Act 1961.   The Commission has examined those proceedings in Application No. 11170/84, which it declared admissible on 14 July 1987.   The applicant now complains that, by punishing him in subsequent proceedings for statements which he had made in defence against the criminal charge against him in the above proceedings, the courts have violated his rights of defence as guaranteed in particular by Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, which reads as follows:           "Everyone charged with a criminal offence has the         following minimum rights:         ...           (c)   to defend himself in person ..."           The Commission notes that the applicant's present complaint is based on new proceedings which were brought after his conviction in the above case.           The Government submit that, in principle, Austrian law does not allow prosecution on account of statements made in defence to a criminal accusation even if these statements involve the allegation that a witness has given false evidence.   The accused is not obliged to tell the truth, but he is not free, in his defence, knowingly to make false allegations against third persons.   In the Government's view the applicant's statements in the present case went beyond what was necessary for his defence in the case under the Wine Act; he did not merely deny his guilt and contest the correctness of the cellar inspector's statements, but accused the latter of improper manipulations when drawing the wine samples.   The courts were convinced that he knowingly made this false statement and his conviction was therefore justified and did not improperly interfere with his rights of defence in the earlier case.   The applicant claims that his allegations against the Cellar Inspector in the proceedings under the Wine Act were legitimate defence arguments in the circumstances.           The Commission has considered these arguments and finds that the applicant's complaint cannot be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   It raises complex issues of law and fact regarding the application of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention which require a determination on the merits.   2.       The applicant further complains that in the calumny proceedings there has been a violation of Article 6 para. 1 (Art. 6-1) of the   Convention which, insofar as relevant, reads as follows:   "In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ..."           The applicant complains that, in the appeal proceedings, the Vienna Court of Appeal relied on submissions by the Senior Public Prosecutor which had not been communicated to the defence.   He claims that this infringed the "equality of arms" which, according to the case-law of the Convention organs, is enshrined in the notion of a "fair hearing".           It is not contested that in the present case the Senior Public Prosecutor submitted written observations to the Court of Appeal and that these were not communicated to the defence.   The Government observe, however, that this practice should have been known to the applicant's defence counsel who could have consulted the file. Referring to the Commission's decision on the admissibility of Application No. 8289/78 (Peschke v. Austria, Dec. 5.3.1980, D.R. 18 p. 160) where a similar practice before the Supreme Court was found to be compatible with Article 6 para. 1 (Art. 6-1) of the Convention, the Government contest a violation of this provision in the present case. The applicant claims that the practice concerning access to the file is not as described by the Government; he also invokes the Commission's case-law and submits that in any event a possibility of consulting the file is not sufficient under Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission has considered these arguments and finds that the applicant's complaint cannot be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   It raises complex issues of law and fact under Article 6 para. 1 (Art. 6-1) of the Convention which require a determination on the merits.   3.       The Commission finally notes the close link between the present case and Application No. 11170/84 pending before the Commission.   The Commission considers it appropriate to join the present case to Application No. 11170/84.           For these reasons, the Commission   1.       DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case;   2.       Decides to join the present application to         Application No. 11170/84.       Secretary to the Commission                President of the Commission              (H.C. KRÜGER)                              (C.A. NØRGAARD)