CASE OF TELFNER v. AUSTRIA
Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Nicolas Bratza
7. On 8 April 1995, in the early hours, an accident took place in Obsteig, a small village in the Tyrol. Mr K. was struck by a car and suffered a slight injury to his arm. Mr K. reported the incident to the police and identified the type and registration number of the car involved. He had, however, not been in a position to identify the driver of the car. 8. On the same morning, officers of the local police station started investigations. They found the car, registered in the name of the applicant’s mother, Mrs G., parked in front of the house where the applicant was living with his family. The applicant’s mother stated that she had not been driving. As regards the applicant, she stated that he was not home yet and showed the police officers the applicant’s room in which his bed was untouched. Further, she stated that the car was regularly used by several family members. She was requested to send the applicant to the police station as soon as he came in. When asked later that day, the applicant’s mother stated that he still had not come home. In its investigation report the police referred to the applicant as the suspect and stated that, according to the police officers’ general observations, he was the main user of the car. 9. On 20 December 1995 and on 2 February 1996 the Silz District Court (Bezirksgericht) tried the applicant on charges of causing injury by negligence (fahrlässige Körperverletzung). The applicant pleaded “not guilty”. He stated that he had not been driving the car at the relevant time and that he did not wish to make any further submissions. Mr K., heard as a witness, confirmed his statements to the police, in particular that he had not been able to identify the driver of the car, nor to state whether the driver had been male or female. The applicant’s mother and his sister exercised their right not to testify. The minutes state that they were cautioned as to this right, but do not mention the ground on which the caution was based. Pursuant to section 152 § 1 of the Code of Criminal Procedure (Strafprozessordnung), so far as relevant in the present context, a witness may refuse to give evidence if the statement would expose him or her to the danger of criminal prosecution; a witness may equally refuse to give evidence in proceedings against a close relative. 10. On 2 February 1996 the Silz District Court convicted the applicant of causing injury by negligence. It sentenced him to a fine of 24,000 Austrian schillings (ATS), half of which was suspended on probation, and ordered him to pay ATS 1,000 as a partial amount for damages to the victim. In establishing the facts, the court relied on the investigation report of the police, the statement of Mr K. and the applicant’s defence. Its reasoning was as follows: “The accused stated in his evidence at trial that he had not been driving the vehicle at the time of the accident and denied every other point in the statement of facts. Both the accused’s mother, who is the legal owner of the vehicle, and his sister, [M.G.], whom the accused called as a witness, refused to give evidence at the trial. As the injured party, [Mr K.], could not determine at the time of the accident who had been driving the vehicle, the only evidence which remained in connection with this point were the observations of the Obermieming police station, according to which it was common knowledge that the vehicle in question was mainly driven by the accused, ... On the basis of those observations the court is also satisfied that [the applicant] was driving the vehicle at the material time and caused the accident. The additional circumstance that, according to the observations of the Obermieming police station, the accused was not at home after the accident and had evidently still not returned by 8 p.m. that day and, moreover, that no one knew where he was, leads to the sole, unequivocal conclusion that only the accused could have committed the offence; presumably he refused to make a statement because he was under the influence of alcohol, but there is no evidence for that finding. The remaining findings as to the circumstances of the accident or the subsequent course of events are based solely on the consistent and fully credible statements of the witness [Mr K.].” 11. On 23 July 1996 the Innsbruck Regional Court (Landesgericht), after having supplemented the proceedings by inspecting a file concerning administrative criminal proceedings against the applicant’s sister relating to a traffic offence, and having found that the car at issue was also used by the applicant’s sister, dismissed the applicant’s appeal and confirmed the first instance judgment. In particular, as regards the District Court’s evaluation of evidence, the Regional Court found as follows: “The impugned assessment of the evidence is consistent, complete and convincing, so that the appellate court can adopt it as well as the findings based thereon. It is the case that the person claiming damages in criminal proceedings was only able to identify the car and could not describe the occupant or occupants of the vehicle. From the evidence it is established, however, that the car, registered in the name of the accused’s mother, is mainly used by the accused, even if it is also occasionally used by others, such as the accused’s sister. It would have been open to the accused to give a contrary version of events which conflicted with the charges and to put in relevant evidence without thereby at the same time having to name another person as the driver. That was evidently impossible, however, because having spent the night away from his parents’ house and possibly consuming alcohol he had on 8 April 1995 driven his mother’s car through Obsteig. The court of first instance correctly referred to the observations of the police officers to the effect that immediately after the accident the car was indeed in front of the parents’ house, yet the accused’s bed had not been slept in and he could not be found. Nor could it be ascertained where the accused, who refused to make a written statement to the police, was staying. On the basis of the available evidence before it the court of first instance made a realistic assessment of the facts, especially as there was no evidence that anyone else, such as the accused’s sister, had been driving the car at the time of the accident.”