CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 juin 1990

.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. 16156/90                       by Karl BLECHA                       against Austria             The European Commission of Human Rights sitting in private on 7 June 1990, 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              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                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 19 January 1990 by Karl BLECHA against Austria and registered on 13 February 1990 under file No. 16156/90;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is an Austrian citizen born in 1933.   He is a market researcher and was Minister of the Interior from May 1983 until February 1989.   He is represented before the Commission by Mr.   H. Wildmoser, lawyer, of Linz.   The facts of the application, as submitted by the applicant's representative, may be summarised as follows.           On 7 March 1985 the Ministry of the Interior issued to Noricum Ges.mbH ("NORICUM"), a wholly owned subsidiary of the State-owned VOEST-Alpine Ag ("VOEST"), an export licence for the export of specified arms and munitions to Libya.   Rumours that the arms and munitions were not in fact bound for Libya but for Iran, at the time at war with Iraq, led to an internal investigation which did not produce any material which could justify a prosecution or revocation of the licence.   The State Prosecution Service declined to take up criminal proceedings instituted by private parties against managers of VOEST and NORICUM.           On 2 March 1989 criminal proceedings were instituted against 18 managers of NORICUM and VOEST, alleging jeopardising Austrian neutrality (Neutralitätsgefährdung), contrary to Article 320 para. 3 of the Criminal Code (Art. 320 Z13 StGB).   Amongst other applications, the State Prosecution Service requested that the applicant be heard as a witness.           On 10 July 1989 criminal proceedings were instituted, on the request of a private party, against the applicant, the then Federal Chancellor and the then Minister for Foreign Affairs, alleging suspicion of misuse of official authority and jeopardising Austrian neutrality (Verdacht des Missbrauches der Amtsgewalt und Neutralitätsgefährdung) contrary to Articles 302 and 320 para. 3 of the Criminal Code.   The applicant was alleged to have known of and condoned the export of the arms and munitions to Iran.           Further proceedings were instituted by a private party (L.) against V.   and against the national leadership of a political party (P.) alleging defamation and a failure to rectify adequately (üble Nachrede and Nichtveröffentlichung einer Entgegung oder einer nachträglichen Mitteilung) contrary to Article 111 of the Criminal Code and Section 14 (1) of the Media Act (Mediengesetz).           By notice (Verständigung) of 24 August 1989 the applicant was informed that he should be prepared to appear as witness in the proceedings against 18 managers of NORICUM and VOEST, but that the date and subject-matter of his appearance could not yet be fixed.   The applicant's request of 2 November 1989 that the notice be withdrawn was refused by the Linz Regional Court (Landesgericht) on 13 November 1989.   The applicant had argued that he had to be considered as a "co-accused" (Mitbeschuldigter) in the proceedings against the 18 managers because the cases had the same factual basis.   The applicant contended that although technically the proceedings against him were separate, these in fact related to the same complex of events.   The court did not accept these arguments.   It found that the proceedings against the applicant involved allegations of abuse of official authority, and for this reason alone could not be considered as identical with the proceedings against the 18 managers.   Moreover, the proceedings against the applicant had only been instituted after the 18 managers had been accused.   The court accepted that it was not permissable that a person should take part both as witness and defendant in a trial, but this was not the case.   The court found that Article 153 of the Code of Criminal Procedure (see below) relates only to specific questions, and requires the court to consider the conflicting interests - it was clear that in order to balance the conflicting interests the person concerned had to be present.   The court concluded that the applicant would have to be present at the trial, and would then have to decide whether to invoke Article 153.           On 29 September 1989 and 3 October 1989 the applicant was summoned by the Vienna Regional Court (Landesgericht) to appear on 10 October 1989 as a witness at the trial of V. and P.           On 10 October 1989 the applicant was asked whether he had spoken with L. about the rumours concerning VOEST's and NORICUM's business in Iran.   He was also asked for L.'s comments.   He declined to reply, invoking Article 153 of the Code of Criminal Procedure.   The event considered Article 153, paragraph one of which reads, as far as relevant, as follows:   (Original)   "§153. (1) Wenn die Ablegung des Zeugnisses oder die Beantwortung einer Frage für den Zeugen ...   Schande oder die Gefahr strafgerichtlicher Verfolgung ... mit sich brächte, und er deshalb das Zeugnis verweigert, so soll er nur zum Zeugnis verhalten werden, wenn dies wegen der besonderen Bedeutung seiner Aussage unerlässlich ist."   (Translation)   "If giving evidence or replying to a question would harm the witness's ... reputation or entail a risk of criminal proceedings against [him], ... and if he refuses to give evidence for this reason, he shall only be compelled to give evidence if the special importance of his testimony makes this essential."           In balancing the conflicting interests, the court found of particular relevance the importance of the case in the public sphere and the likelihood that the applicant, and he alone, would be able to shed light on it.   Moreover, the court found that it could reasonably expect the applicant to answer the questions as he was a former Minister of the Interior and could be expected to behave particularly responsibly.           The court also stated that, if it granted his request not to be compelled to give evidence now, he would perhaps never give evidence, as even if the proceedings against him were not continued with, there was always the possibility that they would be re-opened.           The court fined the applicant AS 8.000 for refusing to give evidence (Article 160 of the Code of Criminal Procedure).           The applicant's appeal (Beschwerde) to the Vienna Court of Appeal (Oberlandesgericht) was rejected as no appeal lay in such circumstances.   COMPLAINTS           The applicant alleges violation of Article 6 paras. 1 and 3 of the Convention.           He complains that he is required to give evidence in proceedings which were formally against third parties, but in fact concern the same events as those at the basis of proceedings against him.   In such a situation he is required to run the risk either of incriminating himself or of perjuring himself.           In particular, the applicant alleges that, as the documents in his case were contained in the files of the case involving the 18 managers of NORICUM and VOEST, it is clear that the proceedings against him are identical with those against the managers.   He points to the inadequate position of a person who is a co-accused or a de facto co-accused (materiell Mitbeschuldigter) in Austrian law.           The applicant considers that, because he has no remedy in respect either of the notice to attend in the case against the 18 managers or in respect of the fine in the case against V. and P., he must be regarded as having exhausted domestic remedies.   THE LAW           The applicant alleges violation of Article 6 paras. 1 (Art. 6-1) and 3 (Art. 6-3) of the Convention which provide, as far as relevant, as follows:   "1.    In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.   ... 3.    Everyone charged with a criminal offence has the following minimum rights:   ...      (b) to have adequate time and facilities for the preparation of his defence;"           To the extent that the applicant complains about the proceedings against him for refusal to give evidence in L.'s private prosecution against V. and P., and the attendant fine, and even assuming such proceedings relate to the determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).   Accordingly, the applicant may not complain as to the result of those proceedings, and he makes no specific procedural complaints.           This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           To the extent that the applicant's complaint relates to the imposition of a fine in a context of proceedings in which he is involved, the Commission notes that the proceedings in question must be either the proceedings against him or, if his contentions concerning his status as "de facto co-accused" (materiell Mitbeschuldigter) are accepted, the proceedings by L. against V. and P. and the proceedings against the 18 managers of NORICUM and VOEST. The Commission notes that all three sets of proceedings are still pending, and recalls that it can only assess the fairness of criminal proceedings when it is able to consider them in their entirety (cf. No. 9000/80, Dec. 11.3.82, D.R. 27 p. 127, with further references). Moreover, an acquittal will normally be regarded as rectifying procedural errors alleged to have violated the Convention (cf.   No. 5572/72, Dec. 8.7.73, D.R. 1 p. 44; No. 8083/77, Dec. 13.3.80, D.R. 14 p. 223).   Until the relevant proceedings have finished, with the exhaustion of domestic remedies as required by Article 26 (Art. 26) of the Convention, it is not possible to consider whether, either in respect of the proceedings formally against the applicant, or in respect of the complex of proceedings involving the applicant, Article 6 (Art. 6) has been complied with in this respect, or whether any alleged violations that may have taken place have been remedied by a subsequent acquittal.           This part of the application is therefore premature and must be rejected as manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission             President of the Commission         (H.C. KRÜGER)                            (C.A. NØRGAARD)