CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 février 1992

.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. 16002/90   by A.K.   against Austria   The European Commission of Human Rights sitting in private on 18 February 1992, the following members being present:   MM.C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL F. ERMACORA G. SPERDUTI G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS Mrs.G. H. THUNE SirBasil HALL MM.C.L. ROZAKIS L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ   Mr. J. RAYMOND, Deputy 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 27 November 1989 by A.K. against Austria and registered on 17 January 1990 under file No. 16002/90;   Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   Having regard to:   -the observations submitted by the respondent Government on 26 February 1991 and the observations in reply submitted by the applicant on 22 April 1991;   -the parties' submissions at the oral hearing of 18 February 1992.   Having deliberated;   Decides as follows:               THE FACTS   The applicant is an Austrian citizen, born in 1952 and living in Linz.   He is represented by Mr. W. Moringer, a lawyer in Linz.   The facts agreed between the parties may be summarised as follows.   The applicant was accused of having bought between December 1988 and 18 January 1989 a total of 3gr. of heroin from a couple, M. and Ch. W., who were being prosecuted in separate proceedings.   The trial started on 19 April 1989 but was adjourned after the applicant had pleaded not guilty. He was then summoned to appear on 30 May 1989 to give evidence at the trial against M. and Ch. W. who stood charges of drug dealing in several cases.   At the hearing of 30 May 1989 M. W. denied having sold heroin to the applicant, while his wife admitted having done so.   Contrary to her initial confession she alleged, however, that the deal concerned 2gr. and not 3gr. of heroin.   Subsequently the applicant was heard as a witness.   He was informed of Section 153 of the Austrian Code on Criminal Procedure (Strafprozessordnung - StPO) according to which a witness could refuse to answer questions if the answer risked to expose him to criminal prosecution, but which also empowered the Court to decide otherwise.   The applicant replied that in view of the criminal proceedings pending against himself he was not prepared to give evidence. Thereupon the Court gave an order denying him leave to abstain from giving evidence.   This order was based on the reasoning that a serious offence was at issue while the applicant faced a charge of minor importance and it was likely that the proceedings against him would be discontinued.   The applicant nevertheless continued to refuse to answer the question put to him.   He was therefore fined 3,000 AS and eventually threatened with detention.   As he still persisted in refusing to give evidence, his detention for a period of five days was ordered and he was immediately arrested.   This decision was based on the ground that it was important to ascertain whether M.W. or Ch. W., or both, had sold heroin to the applicant.   An appeal (Beschwerde) was rejected by the Court of Appeal (Oberlandesgericht) in Linz on 2 June 1989 as being inadmissible.   The applicant's detention lasted from 14.25 hrs. on 30 May 1989 to 14.25 hrs. on 4 June 1989.   The fine was paid on 6 March 1990.   Meanwhile, the applicant had given evidence at a hearing on 25 January 1990 in the matter against M. and Ch. W.   He had stated that on two occasions he had bought heroin of less than 1gr. each time.   Following investigations in accordance with Sec. 17 of the Drug Act, showing that the applicant did not need medical treatment and care, the proceedings against him were provisionally discontinued on 20 December 1989 and a period of probation of two years was fixed.   At the suggestion of the Ministry of Justice, the Office of the General Public Prosecutor (Generalprokuratur) lodged a plea of nullity for the safeguarding of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) against the detention order of 30 May 1989. It was based on the following grounds:               - that the quantity of heroin sold to the applicant was unimportant while the total quantities in the remaining cases were sufficient to constitute an aggravating factor;           - that the applicant's evidence was not needed as in the investigation proceedings Ch. W. had confessed having sold 3gr. of heroin to the applicant and the trial court based its conviction on this confession and not on the statement eventually made by the applicant as a witness;         - that as regards the accused M.W. the decisive evidence had been the result of a secret telephone surveillance and not the evidence given by the applicant;         - that in view of all these circumstances the trial court had wrongly considered that the interests of justice prevailed over the applicant's interest not to give evidence.   On 19 December 1990 the Supreme Court (Oberster Gerichtshof) rejected the plea of nullity stating that the question of whether the applicant had correctly been obliged to give evidence could not be decided on the basis of the result of the trial; it had to be decided on the basis of the situation at the moment when the trial court took the decision of 30 May 1989.   At that moment it was not yet certain whether Ch. W.'s confession sufficed to convict her.   Furthermore the applicant's evidence appeared to be of relevance for determining whether Ch. W.'s husband was involved in the deal.   Therefore the trial court had not exceeded its discretionary power.   RELEVANT DOMESTIC LAW [Translation]   The relevant provisions of the Drug Act read:   Section 17:   "(1) Where charges have been laid against a person for the only reason that he or she has illegally acquired or possessed for personal use an important amount of drugs, the Public Prosecutor may, under the following conditions, drop the charges provisionally for a period of probation of two years.   (2) ...   (3) The dropping of the charge is possible under the condition that:   1. information from the Ministry of Health and Environment is obtained under Sec. 25, and     2. observations of the local health authorities are submitted on the question whether   a. the person charged needs medical treatment or supervision as to his/her state of health,   b. the necessary treatment or supervision is in the given circumstances possible and not clearly without any chances of success.         (5) ...   (6) Before dropping the charges the local authorities and the suspect have to be informed.   The latter has at the same time to be instructed about the importance and legal effects of the provisional discontinuance. The period of probation is not taken into account in calculating the period concerning the statute of limitations."   Section 19   (1st sentence) "Where an indictment has already been filed, Sections 17 and 18 apply accordingly for the purpose of a discontinuance of the proceedings by the court."   The relevant provisions of the Code on Criminal Procedure (StPO) read as follows:   Section 57   "(1) The court competent under Sec. 56 to deal with several connected criminal matters may order the separation of proceedings against an individual accused, if this appears to be indicated in order to avoid delays or complications in the proceedings or to shorten detention on remand of a suspect."   Section 150   "In principle everyone summoned as a witness has the obligation to appear and to give evidence on those circumstances known to him and relating to the matter under investigation."   Section 153   "(1) If giving evidence or replying to a certain question implies ... the danger of criminal prosecution ..., and the witness therefore refuses statements he can be obliged to give evidence if this is necessary in view of the particular importance of his statement."   Section 160   "If the witness refuses to give evidence without statutory reasons ... a coercive penalty (Beugestrafe) of up to 10,000 AS may be imposed and, if he then persists, a coercive detention of up to six weeks may be ordered in important cases ..."   The relevant provisions of the Austrian Criminal Code (Strafgesetzbuch - StGB) read as follows:   Section 288   "(1) Everyone who as a witness ... gives false evidence in court ... is punishable with imprisonment of up to three years."             Section 290   "(1) He who gives false evidence (Sections 288, 289) ... in order to avoid criminal prosecution against himself ... is not punishable, if he had a right not to give evidence or could have requested to be granted leave not to give evidence and if   1. he did not know this,   2. he did not invoke the right not to give evidence fearing that this alone would already cause the consequences referred to above,   3. he was wrongly ordered to give evidence ...   (3) The perpetrator is punishable even if the requirements set out in para. (1) are given, provided that the false evidence risks to cause serious disadvantages to a third person and he could reasonably havebeen expected to tell the truth."     COMPLAINTS   The applicant considers that the obligation to give evidence in respect of events in connection with which criminal charges had been laid against him violates the principle of a fair trial within the meaning of Article 6 para. 1 of the Convention.   The applicant further alleges a violation of his right to liberty as guaranteed by Article 5 para. 1 of the Convention. In addition he invokes Article 5 para. 4 on the grounds that there had been no possibility of obtaining a judicial review of the detention order.   PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 27 November 1989 and registered on 17 January 1990.   On 8 June 1990 the Commission decided to communicate the application to the respondent Government for observations on its admissibility and merits.   After extension of the time-limit the respondent Government's observations were submited on 26 February 1991. The applicant replied on 22 April 1991.   On 17 October 1991 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   At the hearing which was held on 18 February 1992 the parties were represented as follows:   -    for the applicant:   RechtsanwaltCounsel Dr. Wolfgang MORINGER Linz   -    for the respondent Government:   Dr. Wolf OKRESEKAgent Head of Department Federal Chancellery         Dr. Susanna BOIGNERAdviser Federal Ministry for Foreign Affairs   Dr. Irene GARTNERAdviser Federal Ministry of Justice     THE LAW   1.The applicant first complains that his right to a fair trial as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention was violated because he had been obliged to give evidence in a criminal matter in which he was involved and, although in separate proceedings, even indicted, and thereby to incriminate himself if he told the truth or to be punished for giving false evidence if he had concealed his involvement in the matter.   He also considers that by deciding his coercive detention and by imposing a coercive fine the Austrian court determined a criminal charge against him.   The Commission considers that the case also falls to be examined under Article 10 (Art. 10) of the Convention as the applicant alleges that he was obliged against his will to disclose information incriminating himself. The Austrian Government point out that the applicant first argued in his submissions of 22 April 1991 that the coercive measures taken against him were criminal sanctions, while the final decision was given by the Vienna Court of Appeal on 2 June 1989 which is more than six months before.   Consequently this complaint was lodged out of time under Article 26 (Art. 26) of the Convention.   They further argue that the guarantees of Article 6 (Art. 6) of the Convention protected the applicant only in the criminal proceedings against himself, not however in the separate proceedings against M. and Ch. W. where he was heard as a witness.   The Government further submit that, in any event, the coercive measures in question neither constituted a punishment nor had any preventive purpose.   Finally the Government deny a violation of Article 10 (Art. 10). They consider that if this provision should apply, the measures in question would be justified under paragraph 2 as being necessary in a democratic society for the prevention of crime.   The Commission considers that this complaint raises complex issues of law under the Convention and in particular under Articles 6 and/or 10 (Art. 6, 10), the determination of which must be reserved to an examination of the merits.   This part of the application cannot therefore be rejected as manifestly ill-founded.   2.The applicant further alleges a violation of his right to liberty as guaranteed by Article 5 para. 1 (Art. 5-1) of the Convention.   He argues that subparagraph 1 (b) of this provision, which allows the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure fulfilment of any obligation prescribed by law, was not applicable in his case because he had no obligation to give evidence as he had to be considered as an accused and not as a witness in the criminal proceedings brought against him and his drug suppliers, M. and Ch. W.   He again contends that the measures in question had the character of a punishment.   In addition he invokes Article 5 para. 4 (Art. 5-4) on the grounds that there had been no possibility of obtaining a judicial review of the detention order.   The respondent Government submit that the applicant's detention was ordered in compliance with Austrian law.   It was for the Austrian courts to balance the applicant's interest to remain silent against the interest of the public to have the important charges against the couple M. and Ch. W. determined.   In striking this balance the courts had not acted arbitrarily.   Therefore the detention was justified under Article 5 para. 1 (b) (Art. 5-1-b).   Furthermore there was no necessity of judicial control as the detention had been ordered by a court and had been limited to a very short period.   The Commission finds that these complaints likewise raise complex issues of law under the Convention the determination of which must be reserved to an examination on the merits.   The remaining part of the application cannot therefore be rejected as manifestly ill-founded.   No other grounds for admissibility have been established.     For these reasons, the Commission by a majority     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.     Deputy Secretary to the Commission           President of the Commission                  (J. RAYMOND)                             (C.A. NØRGAARD)