CASE OF ASCH v. AUSTRIA
No violation of Art. 6-1+6-3-d
C. Russo;N. Valticos
8. Mr Johann Asch, an Austrian national, resides at Laaben in Austria. 9. In the night of 5 to 6 July 1985 a dispute broke out between him and the woman he lived with, Mrs J.L. She left the house and took refuge at her mother’s home. The following morning she consulted a doctor. He sent her the same day to the St Pölten hospital then transmitted to that establishment a certificate dated 9 July attesting that she was suffering from multiple bruising and headaches. A report drawn up by the hospital, dated 11 July, stated that she claimed to have been struck with a belt and that she had several bruises on her body and one on her head. 10. In the evening of 6 July Mrs J.L. reported the incident to the Brand-Laaben police (Gendarmerie). She alleged that the applicant had threatened to use violence on her if she did not get out immediately. As she had refused to obey, he had hit her with a belt on her back, on her arms and on her legs. Seeing him seize a rifle, she had tried to reason with him and then taken advantage of a moment of calm to escape. 11. The police officer who had taken down this statement, Officer B., informed the public prosecutor’s office of St Pölten by telephone the same evening; he was instructed by that office to file a report (anzeigen) concerning Mr Asch, but not to arrest him. 12. On the morning of 10 July Mrs J.L. went back to the Brand-Laaben police station to inform the relevant officers that she and the applicant had been reconciled and that she had returned to live with him on 7 July. She expressed her wish to withdraw her complaint. 13. Questioned at the police station in the evening, the applicant denied that he had ill-treated Mrs J.L. or threatened her with a rifle. She had, he claimed, only a scratch on her back; in addition, she had explained to him that she had lodged a complaint because she had been furious with him. 14. On 16 July 1985 the Brand-Laaben police sent a report on Mr Asch to the Neulengbach District Court. They substantially repeated the allegations made by Mrs J.L. and produced the medical certificate of 9 July, the hospital report of 11 July and the records of the statements of the applicant and his woman friend, of 6 and 10 July (see paragraphs 9-10 and 13 above). 15. On 7 August 1985 the St Pölten public prosecutor’s office committed the applicant for trial before the Regional Court (Kreisgericht) of that town on charges of intimidation (Nötigung, Article 105 of the Criminal Code) and causing actual bodily harm (Körperverletzung, Article 83). At the hearing on 15 November 1985 Mr Asch protested his innocence; according to him, Mrs J.L. had hurt herself in the night of 5 to 6 July when she struck the end of the bed. However, he admitted having attacked her and having pushed her away from him. 16. When questioned by the court, Mrs J.L. availed herself of her right to refuse to give evidence (see paragraph 20 below). Subsequently Officer B. testified; he recounted the statements that she had made before him on 6 July 1985 and told the court that she had appeared to him to have been scared. She had shown to him the bruises on her arm and the bandage which covered a part of her back. No further applications being made by the parties, the judge ordered the report of 16 July, the interview record of 6 July 1985 (see paragraphs 10-11 and 14 above) and an extract from Mr Asch’s criminal record to be read out. 17. On 15 November 1985 the court convicted Mr Asch of intimidation and causing actual bodily harm and sentenced him to a fine of 80 schillings per day for 180 days. On the basis of the statements made at the hearing by the accused and by Officer B., the police investigation and the other evidence before it, the court found the facts to be established as described by Mrs J.L. on 6 July. According to the judgment, they were corroborated by the doctor’s diagnosis. Moreover the evidence revealed Mr Asch’s irascible and unpredictable personality and thus made the version given by Mrs J.L. plausible. The court did not find credible the accused’s claims that she had deliberately falsely accused him. 18. The applicant appealed. He complained inter alia that the first-instance court had had the record of Mrs J.L.’s statements (see paragraphs 10-11 above) read out at the hearing, without having asked him to comment on this document or having questioned him or Mrs J.L. He also asked the appeal court to order an expert medical opinion and to effect a search of the premises, as, he contended, the first-instance court ought to have done. In his view, the fact that Mrs J.L. had withdrawn her complaint had deprived the prosecution brought against him of its legal basis. 19. On 19 March 1986 the Court of Appeal (Oberlandesgericht) of Vienna upheld the contested judgment. It ruled inter alia that, according to well-established case-law, Article 252 par. 2 of the Code of Criminal Procedure (see paragraph 21 below) required the court before which the proceedings were pending to have the statements made outside court by witnesses who had refused to appear in court read out at the hearing, when such statements related to important points. The Court of Appeal also held that Mr Asch had failed to give sufficient reasons for his request for an expert opinion, since he had provided no evidence casting doubt on the cause of the victim’s injuries. 20. Under Article 152 par. 1, sub-paragraph 1, of the Code of Criminal Procedure, the members of the accused’s family as referred to in Article 72 of the Criminal Code are exempted from giving evidence; they include cohabitees. 21. Paragraphs 2 and 3 of Article 252 of the Code of Criminal Procedure are worded as follows: "2. The records of on-the-spot inspections and police reports, as well as the accused’s criminal record and any other material documents or written evidence, shall be read out at the hearing, unless both parties agree to dispense with this proceeding. 3. After each such document has been read out, the accused shall be asked if he wishes to make any comments thereon."