CASE OF I.H. AND OTHERS v. AUSTRIA
Violation of Art. 6;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention and domestic proceedings
Christos Rozakis
11. The applicants, four in all, are Austrian nationals of Turkish origin, born in 1978, 1959, 1959 and 1961 respectively, and are living in Lustenau (Austria). The second applicant is the first applicant’s father, the third applicant his mother and the fourth applicant his uncle. On 21 March 1997 the Feldkirch Public Prosecutor filed a bill of indictment against the applicants charging them with rape under section 201 § 2 of the Penal Code, coercion and deprivation of liberty. The public prosecutor stated that since September 1995 the first applicant had been the fiancé of F.D. Their future marriage had been arranged by their respective fathers. After the death of F.D.’s father in May 1996, F.D. considered herself no longer bound by the promise of betrothal given by her father. She told this to the first applicant and his parents who, however, refused to accept her change of mind. 12. Ever since the death of F.D.’s father the second applicant regularly brought F.D. by car to her place of work and drove her home again after work. On 22 July 1996, around 5.00 a.m., the second applicant, accompanied by the first and third applicant, picked up F.D. and brought her to the home of the fourth applicant. The second applicant told her that she was going to have sexual intercourse with the first applicant. He also told her that if she resisted she would be held by the second and fourth applicants and that the third applicant would force her legs apart. She was accompanied to the bedroom. The first applicant attempted to have sexual intercourse with her, but this attempt failed because of F.D.’s resistance. Thereupon, the first applicant requested the third applicant to help him. The third applicant tied F.D.’s hands with adhesive tape and stuck a strip of adhesive tape over her mouth. She then held F.D.s arms while the first applicant had intercourse with F.D. Thereafter, F.D. was constrained to spend the rest of the day with the first applicant in the house. 13. The second and third applicants phoned her mother and told her that F.D. had been kidnapped by them and that she should not contact the police, otherwise F.D. would be killed. Nevertheless, F.D.’s mother informed the police about the incident. Around 8.00 p.m. F.D. was allowed to phone her mother. Soon afterwards police officers arrived at the house and arrested all four applicants. 14. On 23 May 1997 the applicants’ trial was held before the Feldkirch Regional Court. The applicants, assisted by counsel, Mr. Weh, maintained their innocence and claimed that F.D. had accompanied them voluntarily in order to become closer acquainted with the first applicant’s uncle and that, on this occasion, she had had sexual intercourse with the first applicant of her own free will. No violence whatsoever had been used against her. The court heard the applicants and several witnesses, including the victim, her mother and a doctor who had examined the victim at the hospital. F.D. repeated to the court the statements she made to the police and the investigating judge, but added that her family and the applicants’ family had meanwhile settled the matter and that she had received a payment of 50,000 ATS from the applicants’ family. 15. On the same day the Regional Court convicted the applicants of rape under section 201 § 1 of the Penal Code and of deprivation of liberty. The first and second applicants were also convicted of aggravated coercion. The first applicant was sentenced to one year’s imprisonment, the second applicant to two years, the third applicant to twenty months and the fourth applicant to eighteen months of imprisonment. In its judgment, the court described the course of the events in the same terms as in the bill of indictment. 16. As regards the classification of the offence in law, the court found that from the facts established it was apparent that F.D. had been exposed to and had been threatened with acts of serious violence. It therefore had to convict the applicants of rape under Section 201 § 1 of the Penal Code. 17. On 24 July 1997 the applicants filed pleas of nullity (Nichtigkeits-beschwerde) and appeals against sentence (Berufung). The applicants complained, inter alia, that their conviction for rape had gone beyond the terms of the indictment (Anklageüberschreitung) as they were convicted of rape under section 201 § 1 of the Penal Code while the bill of indictment had charged them with rape under section 201 § 2 of the Penal Code. In the applicants’ submission, if the Regional Court had been of the opinion that the public prosecutor’s indictment had not corresponded to all the elements of the case it should have given the public prosecutor the opportunity to amend the indictment. This would at the same time have given the applicants the opportunity to react to the amendment and to dispute the existence of any aggravating circumstances. 18. On 2 December 1997 the Supreme Court rejected the applicants’ appeal under section 285d § 1 of the Code of Criminal Procedure without holding a hearing. As regards the complaint that the judgment had exceeded the terms of the indictment with respect to the charge of rape, the Supreme Court found that a ground of nullity could only be made out if the applicants had been found guilty of an offence which had not been the subject matter of the indictment. The subject matter of an indictment was a specific act or event which, in the eyes of the public prosecutor, had brought about a punishable result. If, on the basis of the evidence taken, the event which formed the basis of the indictment had, in certain details, occurred in a manner different from that assumed by the prosecution, the court had to apply the correct law to the established facts even if the result was that the legal qualification then applied differed from the one made by the public prosecutor. It was only where the taking of evidence showed a course of events which was entirely different from the events described in the indictment such that it could no longer be considered covered by the terms of the indictment, that a conviction would pre-suppose the prior amendment of the indictment. In the present case, the act with which the applicants were charged was identical to the established facts as set out in the judgment. The trial court had merely come to a different legal qualification on the facts. However, this did not exceed the terms of the indictment (Anklageüberschreitung). Moreover, the different legal qualification given to the offence was not in breach of the Convention. It was the main purpose of Article 6 § 3 (d) of the Convention to achieve equality of arms between the prosecution and the defence. However, it could not be considered that a legal qualification in the judgment which differed from the one in the indictment infringed this or any other provision of the Convention. The Supreme Court remitted the applicants’ appeal against sentence to the Innsbruck Court of Appeal. 19. On 11 February 1998 the Court of Appeal dismissed the applicants’ appeal and confirmed the sentences fixed by the Regional Court. 20. Section 201 of the Penal Code (Strafgesetzbuch) reads as follows: “1. Anyone who compels another person, by use of serious violence or threats of immediate serious danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of one to ten years. Rendering unconscious also qualifies as use of serious violence. 2. Anyone who, except for the case under paragraph 1, compels another person, by use of violence, deprivation of liberty or threats of danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of six months to five years. 3. If the violence resulted in serious bodily harm to the victim, or if the victim has endured great pain for a prolonged period or has been particularly humiliated, the perpetrator of the offence shall be punished by imprisonment of five to fifteen years in the case of paragraph 1 and by imprisonment of one to ten years in the case of paragraph 2. If the violence resulted in the death of the victim the perpetrator of the offence shall be punished by imprisonment of ten to twenty years in the case of paragraph 1 and by imprisonment of five to fifteen years in the case of paragraph 2.” 21. Under the Code of Criminal Procedure the remedies against a judgment by a chamber of a Regional Court are, on the one hand, a plea of nullity (Nichtigkeitsbeschwerde) and, on the other, an appeal against sentence (Berufung). A plea of nullity has to be addressed to the Supreme Court while an appeal against sentence has to be addressed to the Court of Appeal. Section 281 enumerates exhaustively the various grounds for nullity which can be invoked in a plea of nullity. They comprise such elements as participation of an excluded judge (S. 281 § 1 (1)), lack of proper assistance by a defence counsel (S. 281 § 1 (1a)) or breach of a provision of the Code of Criminal Procedure for which the sanction of nullity is expressly provided for (S. 281 § 1 (3). Moreover, it is a ground for nullity if, due to incorrect interpretation, an inapplicable legal provision has been applied to the act underlying a judgment (s. 281 § 1 (10)). In a plea of nullity the assessment of evidence by the Regional Court cannot be challenged unless in the judgment the assessment of evidence is not set out, or if it is unclear, illogic, or in contradiction to the case file (S. 281 § 1 (5) and (5a).