K. v. AUSTRIA



Application No. 17380/90

by S.K.

against Austria

The European Commission of Human Rights sitting in private on

29 June 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. K. ROGGE, Deputy to the 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 7 August 1990 by

S.K. against Austria and registered on 30 October 1990 under file No.

17380/90;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1955. He is

represented before the Commission by Mr. E. Kininger, a lawyer

practising at Innsbruck.

On 28 March 1988 the Kufstein District Court (Bezirksgericht)

convicted the applicant, a railwayman, of causing injury on 14 July

1987 by striking a person with a heavy lamp. He had denied the

offence.

On 14 October 1988 the applicant was questioned as a witness

in proceedings against R.E., one of the colleagues who, it was alleged,

had been with him on 14 July 1987. He denied that either he or his

colleague had a lamp.

Proceedings for perjury in connection with this evidence were

brought against the applicant, who was convicted on 19 September 1989

by the Innsbruck Regional Court (Landesgericht). The Regional Court

found that the applicant had said "neither of us had a lamp", even

though he had been reminded of his obligation to tell the truth. He

had been aware that the statement was incorrect. The Regional Court

refused an application for a trade unionist to be called to give

evidence that the applicant only acted under the pressure of a duty of

solidarity to his colleagues. The applicant was fined AS 30,000.

The conviction and sentence were confirmed by the Innsbruck

Court of Appeal (Oberlandesgericht) on 1 February 1990. The judgment

was served on the applicant's lawyer on 16 February 1990. The Court

of Appeal noted that the Regional Court had not given the applicant the

chance to remain silent as provided for in Article 153 of the Code of

Criminal Procedure (Strafprozessordnung), and indeed had assumed that

he had no such right. However, as the applicant had already been

convicted of causing injury with a lamp, he could not have suffered any

further prejudice if he had admitted this fact in the proceedings

against R.E..

The Court of Appeal further found that the Regional Court had

properly assessed the evidence, commenting that it was impossible that

the applicant had made a mistake as to whether he and R.E. had lamps;

the applicant was therefore not telling the truth.

COMPLAINTS

The applicant alleges a violation of Article 6 of the

Convention. He considers it unjust that as a convicted person who had

consistently maintained his innocence he should have been required on

pain of fine to "confess". He further considers that he should have

been informed of his right under Article 153 of the Code of Criminal

Procedure not to give evidence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 August 1990 and registered

on 31 October 1990.

On 11 July 1991 the Commission decided to bring the application

to the notice of the respondent Government and to request written

observations on its admissibility and merits.

On 23 August 1991 the Agent of the respondent Government informed

the Commission that, pursuant to a plea of nullity for safeguarding the

law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), the applicant

had been acquitted of the charge of perjury against him. This

information was communicated to the applicant's representative on

9 September 1991, with a request to state, by 7 October 1991, whether

the applicant wished to pursue the complaint before the Commission.

A copy of the letter was sent to the applicant on 14 November 1991.

On 15 November 1991 the Agent of the respondent Government, further to

his letter of 23 August 1991, recalled that in its judgment of 6 June

1991 the Supreme Court had agreed with the substance of the applicant's

complaint concerning Article 153 of the Code of Criminal Procedure.

On 2 December 1991 the Agent of the respondent Government informed the

Commission that the fine imposed on the applicant had been reimbursed

by the Regional Court at Innsbruck on 6 August 1991, and that the

applicant had received AS 5,000 compensation for his costs in the

domestic proceedings. Copies of the Government's letters of 15

November and 2 December 1991 were submitted to the applicant, but no

reply has been received.

REASONS FOR THE DECISION

The applicant complains of his conviction for perjury in

connection with evidence given by him in proceedings against a third

party.

The Commission notes that the applicant's conviction has been

quashed, his fine has been reimbursed and he has received AS 5,000

compensation for his costs in the domestic proceedings. Moreover,

neither the applicant nor his representative have made any comment

whatsoever on the submissions of the respondent Government.

The Commission concludes that this matter has been resolved,

within the meaning of Article 30 para. 1 (b) of the Convention. It

further finds that respect for human rights as defined in the

Convention does not require a continuation of its examination.

For these reasons, the Commission unanimously

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

Deputy to the Secretary to the Commission President of the Commission

(K. ROGGE) (C. A. NØRGAARD)