CASE OF FEY v. AUSTRIA
No violation of Art. 6-1
John Freeland
6. The applicant, a German national residing at Geeste in Germany, is a pensioner. 7. From 17 to 27 January 1988 he rented a room in Mayrhofen in Austria from a Mrs Rosa Kröll. During this period he told her that his wife was very ill and was undergoing treatment in an Innsbruck hospital. He also claimed that he was expecting to receive payments under a pension scheme in Germany. As a result Mrs Kröll handed over to him 2,500 schillings and waived the rent of 1,500 schillings. Purportedly in the expectation of receiving the above-mentioned payments, the applicant opened an account at a bank in Mayrhofen on 19 January 1988 and, on 22 January, Mrs Kröll gave him a further 600 schillings. 8. On 27 January 1988, Mrs Kröll reported the matter to the police. The Innsbruck Public Prosecutor’s Office (Staatsanwaltschaft) asked, on 8 February 1988, the investigating judge of the Innsbruck Regional Court (Landesgericht) to institute a preliminary investigation concerning the applicant on suspicion of fraud as a recidivist offender. In addition, the prosecutor requested the judge to order his detention on remand on the ground that there was a risk of his absconding. The judge granted these requests on 9 February 1988. Prior to this, the applicant had been detained since 4 February, pending extradition to Germany. On 10 February he was questioned by the investigating judge. 9. The latter sent, on 12 February 1988, a rogatory letter (Rechtshilfeersuchen) to the Zell am Ziller District Court (Bezirksgericht) asking it to put some specific questions to Mrs Kröll as a witness. District Court Judge, Mrs Andrea Kohlegger, did so on 25 February. 10. On 1 March 1988, the Innsbruck Public Prosecutor’s Office dropped one of the fraud charges against the applicant. As a result, the Regional Court no longer had jurisdiction. Accordingly, the prosecutor asked to have the case, which now concerned only the alleged fraud against Mrs Kröll, transmitted to the District Court which had jurisdiction to deal with offences of lesser gravity, that is, according to Article 9 of the Code of Criminal Procedure (Strafprozeßordnung), offences punishable by a fine or a term of imprisonment not exceeding six months. Moreover, on the same date, the prosecutor, in pursuance of Article 451 (1) of the Code, called for the applicant’s conviction on charges of fraud. 11. At the time when the case was referred to the District Court the case-file contained mainly the following items: - criminal information to the Mayrhofen police; - the applicant’s criminal record in Germany; - the order made by the Regional Court’s investigating judge for the applicant’s detention on remand; - a record of the investigating judge’s interrogation of the applicant; - a record of District Court Judge, Mrs Kohlegger’s interrogation of witness, Mrs Kröll; - letters from the applicant to the prosecution, asking it to drop the charges, and to the Regional Court, complaining about his detention on remand; - a note to the effect that the applicant had withdrawn his complaint against detention. 12. During the ensuing period, Judge Kohlegger took the following steps in the applicant’s case: In a letter to the Osnabrück Execution of Sentence Chamber (Strafvollstreckungskammer) in Germany, she enquired why a prison sentence imposed on the applicant had been partly suspended. She received a reply on 1 April 1988. She sent the case-file to the Innsbruck District Court together with a rogatory letter asking it to question the applicant in order to establish whether his expectations as regards the pension payments allegedly due in January 1988, had been justified and to obtain details of his pension or any other revenue from insurance policies. On 17 March 1988, she telephoned the Mayrhofen bank to establish whether any payments had been entered on the account opened by the applicant (see paragraph 7 above); by letter of the same date the bank replied that no payment had so far been recorded. In addition, she telephoned the Provincial Insurance Companies of Hannover and of Oldenburg-Bremen (Germany) in order to find out whether the applicant had ever applied for or received a pension. According to a note in the case-file, prepared by Judge Kohlegger on 18 March 1988, the first of these companies had replied that, under the reference number which the applicant had indicated, a pension had never been requested by him and that no pension benefits had been paid to him; the other company had stated that he had not been granted a pension. On 18 March 1988, she set down the trial hearing for 24 March (Article 451 (4) of the Code of Criminal Procedure). 13. On the latter date a hearing was held by the Zell am Ziller District Court, with Judge Kohlegger sitting as a single judge. The District Prosecutor (Bezirksanwalt) was present, but the applicant’s lawyer at the time did not appear although he had been summoned. The court heard the applicant first, who claimed that he was innocent. It then heard Mrs Kröll as a witness and a police officer replacing a colleague who had visited her house after the applicant’s arrest. Various documents were exhibited (dargetan), including: - the complaint to the police; - the results of the police investigations in the case; - the applicant’s criminal record; - the case-file of the Regional Court (see paragraph 11 above); - the information provided by the Mayrhofen bank and the two German insurance companies and a letter from a third such company. After the court had finished taking evidence, the prosecutor invited it to find the applicant guilty. The applicant asked the court to ascertain that, on 9 April 1987, he had applied to a German insurance company for a pension. The court dismissed this request, finding that the facts in the case were sufficiently clear. 14. By judgment of 24 March 1988, the District Court acquitted the applicant of the fraud charge concerning the 600 schillings which he had received from Mrs Kröll on 22 January 1988 but convicted him of having fraudulently induced her to hand over 2,500 schillings to him and to waive the rent of 1,500 schillings; it sentenced him to three months’ imprisonment and ordered him to pay Mrs Kröll 4,000 schillings. The periods of detention pending extradition and the trial were deducted from the sentence. The judgment, which was signed by Judge Kohlegger, was founded inter alia on Mrs Kröll’s testimony as well as the information obtained from the bank and the insurance companies. 15. The applicant appealed against his conviction and sentence to the Regional Court. He complained, inter alia, that in the proceedings before the District Court, the case had been investigated and tried by the same person. 16. On 20 April 1988 the Review Chamber (Ratskammer) of the Regional Court dismissed several requests for release submitted by the applicant on 6, 12 and 15 March. 17. In a judgment of 13 May 1988, the Regional Court, composed of three members who had previously taken the above-mentioned decision of 20 April 1988, dismissed the appeal. As to his complaint described in paragraph 15 above, the judgment stated: "As a reply thereto, reference should be made to the prevailing legal opinion derived from Articles 451 and 452 of the Code of Criminal Procedure, according to which the trial judge in District Court proceedings may also undertake preliminary inquiries and a judge who has carried out such inquiries will therefore not be excluded from the trial ... . Equally, if a judge acts in a criminal case as a judge ... under a rogatory letter, this will not prevent him from participating at the trial ... . It is not necessary for the [Regional Court] in the present case to make a thorough examination of the extent to which this legal opinion, which is generally applied, corresponds to Article 6 (art. 6) of the Convention ..., since the accused, who became aware of the (alleged) ground of nullity at the latest at the beginning of the trial, did not ... immediately raise this ground before the Zell am Ziller District Court." 18. In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a complaint, the public prosecutor may have preliminary inquiries (Vorerhebungen) carried out by the investigating judge, the District Courts and the police authorities (Article 88 (1) of the Code of Criminal Procedure). Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he shall either apply for the institution of a preliminary investigation (Voruntersuchung) or file a formal accusation (Anklageschrift, Article 90 (1)). However, in District Court proceedings there is no formal process of investigation and no special procedure of committal for trial: all that is required is a written or oral application from the District Prosecutor seeking the imposition of a penalty on the person concerned (Antrag auf gesetzliche Bestrafung, Article 451 (1)). 19. Pursuant to Article 451 (1) and (4), taken together, the District Court may carry out preliminary inquiries, but not formal preliminary investigations like the Regional Court. When undertaking preliminary inquiries a District Court judge must in principle observe the same rules as those that apply to an investigating judge of the Regional Court during preliminary investigations. However, according to Article 452, which sets out exceptions to this principle, the District Court judge has narrower powers with respect to such matters as pre-trial detention, arrest and search for documentary evidence. Under Article 194 (1) of the Code of Criminal Procedure, the District Court judge may order the release of a person held on remand, subject to agreement with the District Prosecutor that the grounds for detention have ceased to exist. The District Court judge shall set a date for the hearing after such preliminary inquiries as may be necessary have been made (Article 451 (4)). 20. Article 68 (2) of the Code of Criminal Procedure, which provides that an investigating judge may not participate in the trial of the case, does not apply to District Court proceedings. In such proceedings, preliminary inquiries are, according to established court practice, carried out by the trial judge. 21. A judge who has acted under a rogatory letter in a case, but not as an investigating judge, is not thereby excluded from trying the same case (see the collection of Supreme Court decisions SSt 30/50).