VIEHBOCK v. AUSTRIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
The applicant, Mr Peter Viehböck, is an Austrian national who was born in 1968 and lives in St Georgen. He was represented before the Court by Mr A. Piermayr, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was in the area of Fügen, Tyrol, from 16 to 17 December 1995. He went to a discotheque in the evening and said he had left between 1.30 a.m. and 2 a.m. When he left the discotheque, an unknown person hit him in the face and he fell to the ground. The applicant took a taxi and went back to his hotel, where he was sharing a room with two friends. On 17 December 1995 Mr P reported to the police that at about 5 a.m. an unknown person had had an argument with him and kicked his car, which was parked in front of the discotheque, and damaged it. The following day the applicant returned to Upper Austria by train. He was apprehended by the police, on account of his visible injuries, on suspicion of having participated in a fight. The police took two photographs of him. The applicant explained to the police what had happened to him but did not want to file an official complaint against the person who had hit him, as he thought it would not be possible to find the person. On 22 December 1995 T, a barkeeper in the discotheque and a friend of P, was heard as a witness to the incident in which P’s car had been damaged. He stated that he had not witnessed the incident but remembered seeing a young man and had been told by P that it was that young man who had kicked the car. On 16 January 1996 T was shown the photos of the applicant taken by the police. He said it was the person who had had the argument with P. On 27 January 1996 P was also shown the same photos and stated that the applicant was the person who had kicked his car. On 9 February 1996 an official notice of a criminal act, apparently together with a sheet of the applicant’s personal data, was sent to the District Public Prosecutor, who filed an indictment (Antrag auf Bestrafung) on 16 February 1996. On 19 April 1996 a provisional penal order (Strafverfügung) was issued by the Zell am Ziller District Court (“the District Court”). The applicant was considered guilty of having wilfully damaged a car on 17 December 1995. He was sentenced to a fine totalling 2,500 Austrian schillings (approximately 180 euros (EUR)), suspended on probation. According to the law, a provisional penal order had to be served personally on the addressee. The first attempt to serve the provisional penal order on the applicant failed. Although the applicant had a registered address in N between 3 October 1995 and 3 October 1996, the provisional penal order was returned to the District Court with a note that the applicant no longer lived at the address in N and had left a post office box address to which his mail should be forwarded. On 9 May 1996 the District Court found that service of the provisional penal order at a post office box address was not lawful service and decided to adjourn the proceedings and asked the police to locate the applicant. The District Court received a letter from the local police station saying that the applicant did not live anywhere in the area. By a letter dated 25 October 1996, the District Authority in Freistadt, Upper Austria, asked the District Public Prosecutor about the outcome of the case. The District Court replied on 4 November 1996 that a provisional penal order had been issued but could not be served on the applicant and had thus not become final. On 6 June 2002, the District Court renewed the request to the police to locate the applicant. By a letter of 12 June 2002, the Strass im Zillertal police station informed the court that the accused’s personal data had been entered in the Electronic Criminal Police Information System and that a search in the data station had been ordered to find out the applicant’s place of abode. By a letter dated 17 May 2004 the Grieskirchen District Authority in Upper Austria notified the District Court of the applicant’s registered address in W and stated that the applicant had been registered at that address since 2 December 1998. On 28 May 2004 the applicant was served with the provisional penal order together with a notice informing him that if objections were lodged against the provisional penal order within two weeks of service, it would become void and a regular trial would be held. The applicant lodged objections on 2 June 2004. On 3 September 2004 the file was transmitted to the District Public Prosecutor at the Zell am Ziller District Court for her observations regarding a preliminary settlement (Diversion). The trial before the District Court started on 4 January 2005. P was heard as a witness and the court asked him whether the applicant had kicked his car in December 1995. P stated that he could not remember whether the applicant had been the perpetrator and confirmed that when he had been shown the photos of the applicant on 27 January 1996 he had been certain that it had been the applicant who had kicked his car. The applicant asked for evidence to be heard from the two friends with whom he had shared the hotel room. As they lived in Germany, the District Court adjourned the hearing and on 17 January 2005 issued letters rogatory, asking the German authorities to hear the witnesses. The public prosecution office in Munich sent back the witness statements on 17 February 2005. The witnesses had stated that they could not remember the applicant having returned to the hotel room at 2 a.m. On 31 March 2005 the trial continued. The applicant was not represented by counsel. The judge had the witness statements as submitted by the public prosecution office in Munich read out. Relying on the witness statements of P and the applicant’s friends, the barkeeper’s statement and the notification from the Zillertal police station, the District Court found the applicant guilty of having damaged P’s car on 17 December 1995 and sentenced him to a fine totalling EUR 1,080 (60 per diem rates of EUR 18 each), suspended on probation for three years, ordered him to pay the costs of the trial and ordered him to compensate P for the damage to his car. On 21 April 2005 the judgment was served on the applicant’s counsel. An appeal on points of law and fact, as well as against sentence, and an appeal against the obligation to pay damages (Berufung wegen Nichtigkeit, Schuld und Strafe und Berufung gegen den Privatbeteiligtenzuspruch) was lodged on 19 May 2005. On 2 November 2005 the Innsbruck Regional Court set aside the judgment on grounds of nullity as the District Court had failed to obtain the applicant’s consent to have the witness statements read out. On 21 December 2005 a new trial was held. One of the applicant’s friends, who had been named as a witness, did not appear before the court. The other friend did appear and made a statement to the effect that he could not remember any details of the period when the incident had occurred. He also confirmed that when he had been heard by the German authorities after the Austrian court had issued the letters rogatory, he had told the truth. The barkeeper T was also heard as a witness. He stated that he did not remember what he had told the police when he gave his statements on 22 December 1995 and 16 January 1996, but was certain that he had told the truth. After an adjournment, the trial continued on 18 May 2006. As the judge had changed, the trial started afresh. T, P and the applicant’s friend who had not appeared before the court on 21 December 2005 were heard as witnesses and, in essence, upheld their previous statements. The District Court, relying on T’s and P’s statements, again found the applicant guilty and sentenced him to a fine totalling EUR 1,080 (60 per diem rates of EUR 18 each), suspended on probation for three years, and ordered him to pay the costs of the trial. P was ordered to claim damages for the car in the civil courts. The applicant appealed on points of law and fact, as well as against sentence, on 11 July 2006. On 15 December 2006 the Innsbruck Regional Court upheld the judgment. The decision was served on applicant’s counsel on 22 February 2007.