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You are here: BAILII >> Databases >> European Court of Human Rights >> WINDISCH v. AUSTRIA - 12489/86 [1990] ECHR 23 (27 September 1990) URL: http://www.bailii.org/eu/cases/ECHR/1990/23.html Cite as: 13 EHRR 281, [1990] ECHR 23, (1991) 13 EHRR 281

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In the Windisch case*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of the Rules of Court**, as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr F. Matscher,

Mr R. Macdonald,

Mr R. Bernhardt,

Mr J. De Meyer,

Mr I. Foighel,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 27 April and 28 August

1990,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 25/1989/185/245. The first number is

the case's position on the list of cases referred to the

Court in the relevant year (second number). The last two

numbers indicate the case's position on the list of cases

referred to the Court since its creation and on the list of

the corresponding originating applications to the

Commission.

** The amendments to the Rules of Court which entered into

force on 1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 12 October 1989,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 12489/86) against the Republic of Austria

lodged with the Commission under Article 25 (art. 25) by an

Austrian citizen, Mr Harald Windisch, in October 1986.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as

to whether or not the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 (art. 6) of

the Convention.

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings and designated the lawyer

who would represent him (Rule 30). The applicant, who was

referred to as "W" in the proceedings before the Commission,

subsequently agreed to the disclosure of his identity.

3. The Chamber to be constituted included ex officio Mr F.

Matscher, the elected judge of Austrian nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of

the Court (Rule 21 para. 3 (b)). On 25 November 1989 the

President drew by lot, in the presence of the Registrar, the

names of the other five members, namely Mr J. Pinheiro Farinha,

Mr R. Macdonald, Mr R. Bernhardt, Mrs E. Palm and Mr I. Foighel

(Article 43 in fine of the Convention and Rule 21 para. 4)

(art. 43). Subsequently, Mr J. Cremona and Mr J. De Meyer,

substitute judges, replaced Mr Pinheiro Farinha and Mrs Palm, who

were unable to take part in the consideration of the case

(Rule 24 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Austrian Government ("the Government"), the Delegate of

the Commission and the applicant's lawyer on the need for a

written procedure (Rule 37 para. 1). In accordance with the

orders made in consequence, the registry received, on 19 February

and 8 March 1990 respectively, the Government's memorial and the

applicant's claims under Article 50 (art. 50). On 28 November

1989 the President had granted the applicant leave to use the

German language (Rule 27 para. 3).

In a letter of 15 March 1990 the Secretary to the Commission

informed the Registrar that the Delegate would submit his

observations at the hearing. Subsequently, the Secretary

produced a number of documents requested by the Registrar on the

President's instructions.

5. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 18 January

1990 that the oral proceedings should open on 23 April 1990

(Rule 38).

6. The hearing took place in public in the Human Rights

Building, Strasbourg, on the appointed day. The Court had held a

preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr H. Türk, Ambassador, Ministry of Foreign Affairs, Agent,

Mr W. Okresek, Federal Chancellery,

Mr S. Benner, Staatsanwalt, Advisers;

(b) for the Commission

Mr F. Ermacora, Delegate;

(c) for the applicant

Mrs W. Walch, Rechtsanwalt, Counsel.

The Court heard their addressess and their replies to its

questions.

7. On 3 May 1990 counsel for the applicant filed a document

setting out in detail the latter's claims for costs and expenses.

The Government's comments thereon were received at the registry

on 22 May.

AS TO THE FACTS

A. The particular circumstances of the case

8. The applicant, a pensioner of Austrian nationality, is at

present residing in Innsbruck.

9. On the night of 20 to 21 May 1985 a burglary was committed

in a café at Stams, in the Tyrol. From footprints found at the

scene of the crime, the police inferred that at least two persons

had taken part in the burglary.

10. On the following day two women, a mother and a daughter,

came to the police station. After having received the assurance

that their anonymity would be respected, they reported to the

officers in charge that, on the previous evening, they had seen

two men in a minibus in the vicinity of the place where the crime

had been committed. One of the men had passed them in the

street, under a street lamp, at approximately 10.00 p.m., his

face partly covered by a handkerchief. The suspicious appearance

of the men led the two witnesses to take down the licence number

of the minibus.

The police arrested the owner of the minibus, who denied

having had anything whatsoever to do with the burglary. As to

the second man referred to by the anonymous witnesses, suspicion

first fell on a former waiter at the café, but he had an alibi

for the evening in question. The investigations then

concentrated on his acquaintances, including the applicant.

Subsequently, the police informants were shown various

photographs of the applicant and they recognised him as being the

man who had passed them in the street.

11. Mr Windisch was arrested on 24 June 1985. On the following

day the police arranged for a "covert confrontation" of the

applicant with the two witnesses. It took place in Stams at

noon: they were sitting in a car some seven to ten metres from

the suspect and could not be seen by him; he was holding a

handkerchief in front of his face. They had no hesitation in

identifying him as one of the men they had seen. The applicant

denied having been at Stams, claiming that he had been in

Innsbruck throughout the night in question.

On 24 July 1985 he and the owner of the minibus were charged

with burglary (schwerer Diebstahl durch Einbruch).

12. The Innsbruck Regional Court (Landesgericht) held a hearing

on 6 November 1985 during which two police officers gave evidence

concerning the statements made by the two witnesses mentioned

above. Their identity was not, however, disclosed in the court

proceedings.

The applicant's requests to have those witnesses summoned to

appear and to be confronted with them were rejected by the

Regional Court. It noted that the police officers concerned had

promised not to reveal the names of the witnesses, who feared

retaliation, and that the Tyrol Police Department

(Landesgendarmeriekommando) had not released the officers from

their duty of secrecy in this respect. The court also considered

that the police officers' testimony established sufficiently what

the two women had seen and that they were reliable. The decision

not to disclose their identity was therefore justified.

13. On 20 November 1985 the Regional Court, after hearing

evidence from several witnesses, including another police

officer, convicted the applicant and his co-accused of burglary

and indicated orally the principal grounds for its decision. Mr

Windisch was sentenced to three years' imprisonment, from which

the periods of detention on remand were to be deducted. He

stated immediately that he intended to lodge an application for a

declaration of nullity (Nichtigkeitsbeschwerde) and an appeal

against sentence (Berufung).

14. The written judgment of the Innsbruck Regional Court was

served on the applicant on 10 December 1985. Extensive reference

was made therein to the statements of the two unidentified

witnesses to the police. In relation to the question of their

anonymity, the court stated:

"The names of these two women are not known to the court.

The Tyrol Police Department had not released the

investigating officers from their duty of secrecy, and they

could not therefore disclose the identity of the two women.

The court is bound by this decision ... . In this

connection it should be stated that the police are under

instructions to co-operate with the public in investigating

crime. The two women asked the investigating officers not

to disclose their names, because they are afraid of

reprisals. The two women are simple but trustworthy

persons. The investigating officers of the criminal

investigation department can be relied upon for this kind of

assessment. It is therefore entirely acceptable that the

two persons should remain anonymous."

The Regional Court also took into consideration that another

witness had provided the applicant, at his request, with certain

details concerning the victim and his financial situation, and

that the two defendants had been seen in Innsbruck, leaving a bar

together, shortly before the events in question. Furthermore,

the court found that the evidence given by the sixteen witnesses

called on Mr Windisch's behalf had failed to establish an alibi.

It concluded that Mr Windisch, together with his co-accused, had

committed the crime.

15. On 20 March 1986 the Supreme Court (Oberster Gerichtshof)

rejected Mr Windisch's application for a declaration of nullity.

In its view, his request to have the anonymous witnesses summoned

and examined could serve no purpose since it had not been

specified how their identity would be established and because the

police had refused to answer enquiries in this respect. It would

have been possible to identify the two witnesses by taking

evidence from X, whom, according to their statement, they had met

on the evening in question. However, the applicant had not

submitted any request to this effect.

The applicant's appeal against sentence was dismissed on

24 April 1986.

16. By a letter of 25 July 1990 the Government informed the

Registrar that the Attorney-General had recently brought before

the Supreme Court a plea of nullity for the preservation of the

law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes - Article 33

of the Code of Criminal Procedure) against the judgment

of 20 November 1985.

B. The relevant domestic law

17. The taking of evidence at a trial is governed by Articles

246 to 254 of the Code of Criminal Procedure

(Strafprozessordnung).

Article 247 para. 1 provides that "witnesses and experts

shall be called separately and heard in the presence of the

accused". The presiding judge and the other members of the

court, the public prosecutor, the accused, the party seeking

damages and their representatives may question them (Article

249). However, in certain exceptional circumstances, their

previous statements may be read out at the hearing (Article 252).

No provision deals expressly with statements made by

anonymous witnesses and hearsay evidence.

18. The assessment of evidence by the trial court is provided

for in Article 258, which reads as follows:

"(1) In passing judgment the court shall only have regard

to what has occurred at the trial ...

(2) The court has to examine the evidence carefully and

conscientiously with regard to its trustworthiness and

conclusiveness separately and in its entirety. The judges

do not decide upon the question whether or not a particular

fact has been proven according to formal rules of evidence,

but only according to their own conclusions drawn on the

basis of their careful examination of all evidence before

them."

PROCEEDINGS BEFORE THE COMMISSION

19. In his application (no. 12489/86) lodged with the Commission

on 2 October 1986, Mr Windisch alleged a breach of Article 6

para. 3 (d) (art. 6-3-d) of the Convention on the ground that he

had been convicted solely on the basis of evidence given by two

anonymous witnesses, who had not been heard by the Regional Court

and whom he had had no opportunity to examine.

20. The Commission declared the application admissible on

14 December 1988. In its report of 12 July 1989 (Article 31)

(art. 31), the Commission expressed the unanimous opinion that

there had been a violation of paragraph 1, read in conjunction

with paragraph 3 (d), of Article 6 (art. 6-1, art. 6-3-d). The

full text of the Commission's opinion is reproduced as an annex

to this judgment.*

_______________

* Note by the Registrar: For practical reasons this annex

will appear only with the printed version of the judgment

(volume 186 of Series A of the Publications of the Court),

but a copy of the Commission's report is obtainable from the

registry.

_______________

FINAL SUBMISSIONS MADE TO THE COURT

21. At the hearing on 23 April 1990, counsel for Mr Windisch

requested the Court to find that the applicant's rights under

paragraph 1 of Article 6 of the Convention, taken together with

paragraph 3 (d) (art. 6-1, art. 6-3-d), had been infringed and to

grant him the compensation claimed.

The Agent of the Government, for his part, asked the Court

to conclude that "there has been no violation of the ...

Convention ... in the criminal proceedings underlying the

application".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6)

22. Mr Windisch complained that he had been convicted by the

Innsbruck Regional Court on the basis of statements made by two

anonymous witnesses, which were of decisive importance for the

assessment of the other evidence. He alleged a violation of the

following provisions of Article 6 (art. 6) of the Convention:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal ...

2. ...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(d) to examine or have examined witnesses against him

and to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against

him."

This allegation was accepted by the Commission, but

contested by the Government.

23. The guarantees in paragraph 3 of Article 6 (art. 6-3) being

specific aspects of the right to a fair trial set forth in

paragraph 1 (art. 6-1), the Court will consider the applicant's

complaint under paragraphs 3(d) and 1 (art. 6-3-d, art. 6-1)

taken together (see, amongst various authorities, the Kostovski

judgment of 20 November 1989, Series A no. 166, p. 19, para. 39).

Although the two unidentified persons did not give direct

evidence in court, they are to be regarded for the purposes of

Article 6 para. 3(d) (art. 6-3-d) as witnesses - a term to be

given an autonomous interpretation (see the Bönisch judgment of

6 May 1985, Series A no. 92, p. 15, paras. 31-32) - since their

statements, as reported by the police officers, were in fact

before the Regional Court, which took them into consideration

(see paragraphs 12-14 above).

24. The Government attached crucial importance to the question

whether the applicant's conviction was based "mainly" on the two

anonymous witnesses' statements to the police; they concluded

that a number of additional and weighty items of evidence had had

to be evaluated. The Commission considered, on the contrary,

that there was no other independent incriminating evidence.

25. In this respect, the Court recalls at the outset that the

admissibility of evidence is primarily a matter for regulation by

national law, and that, as a rule, it is for the national courts

to assess the evidence before them (see, as the most recent

authority, the above-mentioned Kostovski judgment, Series A

no. 166, p. 19, para. 39). Accordingly, its task under the

Convention is to ascertain whether the proceedings considered as

a whole, including the way in which evidence was taken, were fair

(ibid.).

26. All the evidence must in principle be produced in the

presence of the accused at a public hearing with a view to

adversarial argument. However, the use as evidence of statements

obtained at the pre-trial stage is not always in itself

inconsistent with paragraphs 3(d) and 1 of Article 6 (art. 6-3-d,

art. 6-1), provided the rights of the defence have been

respected. As a rule, these rights require that the defendant be

given an adequate and proper opportunity to challenge and

question a witness against him, either when he was making his

statement or at a later stage of the proceedings (see the

above-mentioned Kostovski judgment, Series A no. 166, p. 20,

para. 41).

27. In the instant case, the two persons in question had only

been heard, at the investigation stage, by the police officers in

charge of the case, who later gave evidence in court concerning

their statements; they were neither examined by the trial court

itself, nor questioned by any examining magistrate (see

paragraphs 10-13 above). Likewise, their identification of the

applicant had taken place in special circumstances, during a

"covert confrontation" of which he was not aware (see

paragraph 11 above).

As a result, neither the applicant nor his counsel - in

spite of their repeated requests (see paragraph 12 above) - ever

had an opportunity to examine witnesses whose evidence had been

taken in their absence, was later reported by third persons

during the hearings and was, as appears from the judgment of

20 November 1985 (see paragraph 14 above), taken into account by

the trial court.

28. At the hearings on 6 and 20 November 1985 the defence was

admittedly able to question, in relation to the two women's

statements, three of the police officers connected with the

investigation. Furthermore, according to the Government, the

applicant could have put written questions to the women, had he

so requested at the trial. These possibilities cannot, however,

replace the right to examine directly prosecution witnesses

before the trial court. In particular, the nature and scope of

the questions that could be put in either of these ways were, in

the circumstances of the case, considerably restricted by reason

of the decision to preserve the anonymity of these two persons

(see paragraphs 12 and 14 above; see also the above-mentioned

Kostovski judgment, Series A no. 166, p. 20, para. 42).

Being unaware of their identity, the defence was confronted

with an almost insurmountable handicap: it was deprived of the

necessary information permitting it to test the witnesses'

reliability or cast doubt on their credibility (ibid.).

29. In addition, the trial court, which was also unaware of the

two women's identity, was prevented from observing their

demeanour under questioning and thus forming its own impression

of their reliability (see the above-mentioned Kostovski judgment,

Series A no. 166, p. 20, para. 43). The police officers'

evidence on this point at the hearings cannot be regarded as a

proper substitute for direct observation.

30. The Government referred to the legitimate interest of the

two women in keeping their identity secret. In its judgment the

Regional Court stated that they were trustworthy persons and were

afraid of reprisals on the part of the suspects. It added that

the police depended on the co-operation of the population in

investigating crimes (see paragraph 14 above).

The collaboration of the public is undoubtedly of great

importance for the police in their struggle against crime. In

this connection the Court notes that the Convention does not

preclude reliance, at the investigation stage, on sources such as

anonymous informants. However, the subsequent use of their

statements by the trial court to found a conviction is another

matter (see, mutatis mutandis, the above-mentioned Kostovski

judgment, Series A no. 166, p. 21, para. 44). The right to a

fair administration of justice holds so prominent a place in a

democratic society that it cannot be sacrificed (ibid.).

31. It must be stressed, as was done by the applicant, that in

this case no one had observed the actual commission of the

offence; the information given and the identification made by the

two anonymous witnesses were the only evidence indicating the

applicant's presence on the scene of the crime, which question

was the central issue during the investigation and at the

hearings (see paragraphs 10 and 12 above). In convicting the

applicant the trial court relied to a large extent on this

evidence (see paragraph 14 above).

In these circumstances, the use of this evidence involved

such limitations on the rights of the defence that Mr Windisch

cannot be said to have received a fair trial.

32. There has thus been a violation of paragraph 3 (d), taken

together with paragraph 1, of Article 6 (art. 6-3-d, art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

33. According to Article 50 (art. 50) of the Convention:

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial

reparation to be made for the consequences of this decision

or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

Mr Windisch sought compensation for pecuniary and

non-pecuniary damage, as well as the reimbursement of costs and

expenses.

A. Damage

34. The applicant claimed 1,080,000 Austrian schillings for loss

of earnings and unjust imprisonment, on the ground that he would

not have been convicted by the Regional Court had it not been for

the statements of the two anonymous witnesses.

The Delegate of the Commission did not submit any comments

on this point.

In the Government's contention, there was no causal link

between the damage alleged and any violation found by the Court,

since the judgment in issue was not based "mainly" on the

statements made by the two anonymous persons. Although they

acknowledged that those depositions had played an important role,

the Government drew attention to a number of other elements which

lay at the basis of that judgment.

35. The Court is unable to accept this argument. The

applicant's detention after his conviction was the direct

consequence of the establishment of his guilt, which was effected

in a manner that did not comply with some of the requirements of

Article 6 (art. 6) (see, mutatis mutandis, the above-mentioned

Kostovski judgment, Series A no. 166, p. 22, para. 48).

However, at the hearing of 23 April 1990, counsel for the

Government referred to the possibility of the applicant's case

being reopened if the Attorney General decided - as has in fact

since happened (see paragraph 16 above) - to lodge a plea of

nullity for the preservation of the law. He mentioned, as an

example, the Unterpertinger case (judgment of 24 November 1986,

Series A no. 110), where the criminal proceedings involved had

been reopened as a result of the Court's judgment.

In consequence, the Court considers that the issue

concerning the granting of damages under Article 50 (art. 50) is

not yet ready for decision. It is therefore necessary to reserve

the matter, taking due account of the possibility of an agreement

between the respondent State and the applicant (Rule 54 paras. 1

and 4 of the Rules of Court).

B. Costs and expenses

36. Mr Windisch itemised his costs and expenses as follows:

(a) 93,720 schillings for the proceedings before the

Austrian courts;

(b) 86,526 schillings for the proceedings before the

Commission and the Court.

The Court will examine these claims in the light of the

criteria emerging from its case-law as regards both the purpose

of the costs allegedly incurred and the requirements that they be

actually incurred, necessarily incurred and reasonable as to

quantum (see, inter alia, the Campbell and Fell judgment

of 28 June 1984, Series A no. 80, pp. 55-56, para. 143).

37. The Government argued that the claim for costs allegedly

incurred in Austria was not justified, since the applicant had

been granted legal aid in the proceedings before the Innsbruck

Regional Court.

The Court notes that at the relevant time the applicant's

lawyer agreed to act on the basis that he would receive only the

fees payable by the competent Austrian authorities under the

national legal aid scheme. In these circumstances the applicant

must be considered as not having incurred a liability to pay any

additional fees (see, mutatis mutandis, the Luedicke, Belkacem

and Koç judgment of 10 March 1980, Series A no. 36, p. 8,

para. 15). Accordingly the Court cannot make any award under

this head.

38. Mr Windisch was also granted legal aid for the purposes of

the proceedings before the Commission and the Court. The

Government, for their part, did not contest that he had incurred

additional liabilities over and above the amounts so received,

but maintained that the fees claimed for the filing of the

application form on 20 October 1986 were not reasonable as to

quantum.

The Court, however, considers that the amounts claimed

satisfy the criteria laid down in its case-law. It therefore

awards to the applicant, for his costs and expenses in

Strasbourg, 86,526 schillings, less 5,290 French francs already

paid by way of legal aid.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of paragraph 3 (d),

taken together with paragraph 1, of Article 6 (art. 6-3-d,

art. 6-1) of the Convention;

2. Holds that the question of the application of Article 50

(art. 50), as regards an award of damages, is not ready for

decision;

accordingly,

(a) reserves this part of the said question;

(b) invites the Government and the applicant to submit,

within the coming three months, their written comments

thereon and, in particular, to notify the Court of any

agreement reached between them;

(c) reserves the further procedure and delegates to the

President of the Court power to fix the same if need be;

3. Holds that Austria is to pay to the applicant, in respect

of costs and expenses, the sum of 86,526 (eighty-six

thousand five hundred and twenty-six) Austrian schillings,

less 5,290 (five thousand two hundred and ninety) French

francs already paid by way of legal aid;

4. Rejects the remainder of the claim for costs and expenses.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

27 September 1990.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar