HEIDEGGER v. AUSTRIA
Inadmissible
The applicant is an Austrian citizen, born in 1973, and is presently detained in a prison in Salzburg. He is represented before the Court by Mr Hitzenbichler, a lawyer practising in Salzburg. On 8 July 1993 the applicant was arrested under the suspicion of having robbed and killed the taxi driver Claudia D. When questioned by the police at Gmunden the applicant first denied any connection with the crime, but then - on 9 July 1993 - he made a confession before the police at Salzburg. He stated that he had threatened the taxi driver with a firearm described as signalling device (Signalstift), whereby unintentionally a shot had gone off. On the same day he confirmed this confession before a judge on duty (Journalrichter) who had been called in immediately by the police officers. On 11 July 1993 the investigating judge appointed an ex-officio defence counsel for the applicant and ordered for the next day an inspection of the scene of the crime (Lokalaugenschein). On 12 July 1993 the inspection was conducted by the investigating judge in the presence of the applicant, his defence counsel, the public prosecutor, a court expert and several police officers. According to the minutes of the inspection, at the beginning the investigating judge asked the applicant whether he maintained his confession. The applicant again confirmed that he had robbed the taxi-driver, but denied having killed her intentionally. Then the applicant gave a detailed account of the course of the events and his flight until he had met a man at a pizzeria who had brought him to town. Thereafter the “course of the events” was reconstructed with the help of a police officer in the role of the victim, using the original car and the firearm the applicant had allegedly used. The applicant showed how he had threatened the victim by holding the fire arm against her neck, how he had got hold of the victim’s purse, how the victim had tried to get off the car and turned towards the applicant and how the shot had gone off. This reconstruction of the course of events was filmed with a video camera. On 23 July 1993 the applicant withdrew his confession claiming that on 5 July 1993, the day of the crime, he had been at home in Gmunden with his mother. On 16 and 17 May and 10 June 1994 the trial against the applicant took place before the Salzburg Regional Court (Landesgericht) sitting as an Assize Court (Geschworenengericht). When questioned about the events on 5 July 1993, the applicant maintained that on that day he and his girlfriend had been in several bars in Gmunden and that between 10.00 p.m. and 10.30 p.m. his girlfriend had brought him home where he stayed all night. It was therefore impossible that he had committed the crime close to Salzburg (approximately 70 km away) around 11.30 p.m. He claimed that the witnesses who allegedly had seen him had been mistaken. When confronted with his previous confessions he submitted that he had made the first confession because he had been forced to do so by the police and had maintained his confession before the judge on duty and the investigating judge because he had not dared to withdraw it in the presence of police officers. Subsequently the court heard as witness the police officers who had carried out the investigations, the judge on duty and the investigating judge. They were questioned about the course of the investigations and the circumstances of the applicant’s confession. The police offices denied having exerted pressure on the applicant and stated that the applicant had given details which at that time had been unknown to them such as the place where the victim’s purse and documents had been thrown away. The judge on duty stated that he had also questioned the applicant alone, in the absence of the police officers, and the applicant had expressly stated that no pressure had been exercised on him. The court then questioned the managing director of a pizzeria who had identified the applicant as being the person whom he had driven at the relevant time from a bar near to the scene of the crime to the centre of Salzburg, as well as his employee who also had identified the applicant. Moreover, the court heard as witness the applicant’s girlfriend, his mother and several other persons on the question whether it was possible that at the time of the crime the applicant had been in Salzburg. Several witnesses stated that they had seen the applicant in a bar in Gmunden and that he had left the bar with his girlfriend. His mother stated that he had been at home by 22.30 p.m. and had not left the house later. On 10 June 1994 the video-film made in the course of the inspection of the scene of the crime was shown. Neither the applicant, nor his defence counsel raised any objections. When questioned the applicant stated that during the inspection he did have the possibility to consult with his defence counsel. Thereafter the court heard a medical expert. He explained, inter alia, that the victim’s final position did not correspond to the applicant’s account in his confession, namely that the shot had gone off when he was sitting inside the car. According to the medical expert it was more likely that the taxi driver had been shot from the outside. The expert also excluded that an ordinary firearm had been used, a signalling device using ordinary bullets could have been a suitable weapon. The court refused to read out a private expert opinion on the credibility of the applicant’s confession or to hear that expert on this issue. On 10 June 1994 the Assize Court convicted the applicant of aggravated robbery and murder and sentenced him to seventeen years imprisonment. On 16 August 1994 the applicant, represented by a defence counsel of his own choice, filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof). He complained, in particular, that the video-film made in the course of the inspection of the scene of the crime was shown at the trial. The applicant submitted that during this inspection he had been intimidated by the presence of a large number of taxi-drivers and that he did not have any contact with his ex-officio defence counsel before the inspection. The applicant further complained that the Assize Court had refused to admit a private expert opinion on the credibility of the applicant’s confession. The applicant also claimed that in view of numerous inconsistencies and unresolved questions the Assize Court should have taken further evidence on its own motion or to advise the applicant’s defence counsel to do so. On 8 November 1994 the Supreme Court dismissed the applicant’s plea of nullity and increased his sentence to twenty years’ imprisonment. The Supreme Court considered that neither the showing nor the making of the video-film in the course of the inspection of the scene of the crime constituted per se a ground of nullity. Moreover, since the applicant had failed to oppose to the showing of the film at the trial by making a formal request to the court not to do so, he could not raise this matter in the proceedings on the plea of nullity. As regards the Assize Court’s refusal to take accept as evidence the opinion of a private expert the Supreme Court found that the applicant had failed to ask the court to appoint an expert. Private expert opinions only served the purpose to enable an accused to make the relevant requests. As regards the applicant’s complaint that the Assize Court had failed to take of its own motion further evidence or to advise his defence counsel to do so, the Supreme Court noted that the applicant has not filed any request for the taking of further evidence and that it had been up to him to do so. Besides, any inconsistencies between the applicant’s confession made at the stage of the preliminary investigations and the findings of the court experts had been discussed in detail at the trial. The opinions of the experts had been conclusive and without contradictions; thus, there had been no necessity to obtain further expert reports. It had therefore been up to the jury to assess the evidence before it and to evaluate whether the applicant’s initial confession or the statements he had made during the trial were more credible.