EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 23867/94

Josef Prinz

against

Austria

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-28)              3

A. The particular circumstances of the case

(paras. 16-25)              3

B. Relevant domestic law

(paras. 26-28)              4

III. OPINION OF THE COMMISSION

(paras. 29-51)              6

A. Complaint declared admissible

(para. 29) 6

C. As regards Article 6 of the Convention

(paras. 31-50)              6

CONCLUSION

(para. 51) 9

DISSENTING OPINION OF MM N. BRATZA, C. L. ROZAKIS,

Mrs J. LIDDY, MM B. MARXER, M. VILA AMIGO

AND Mrs M. HION 10

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              11

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Austrian citizen, born in 1945 and resident at Stein.

3. The application is directed against Austria.  The respondent Government were represented by their Agent, Mr Franz Cede.

4. The case concerns the applicant's complaint that, in the context of criminal proceedings against him, he was not present at a hearing before the Supreme Court.  The applicant invokes Article 6 paras. 1 and 3 of the Convention.

B. The proceedings

5. The application was introduced on 28 March 1994 and registered on 13 April 1994.

6. On 29 November 1995 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 6 paras. 1 and 3 (c) of the Convention.

7. The Government's observations were submitted on 8 March 1996.  The applicant replied and submitted further comments and documents between May and August 1996.

8. On 10 April 1997 the Commission declared admissible the applicant's complaint under Article 6 of the Convention regarding his absence at the hearing before the Supreme Court.  It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 24 April 1997 and they were invited to submit such further information or observations on the merits as they wished.  The applicant submitted further observations on 19 and 28 May 1997.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM N. BRATZA, Acting President

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 4 October 1993 the Krems Regional Court ( Landesgericht ),having held an oral hearing in the presence of the public Prosecutor, the applicant and his official defence counsel, ordered that he be detained in an institution for mentally deranged offenders ( Anstalt für geistig abnorme Rechtsbrecher ), pursuant to S. 21 para. 1 of the Penal Code ( Strafgesetzbuch ).  The Regional Court found that the applicant had intimidated numerous persons by threats of murder, but that he could not be held responsible because he was suffering from a mental illness.  The applicant had, in several letters addressed to judicial authorities and lawyers, respectively, stated his intention to murder particular judges and lawyers, mentioning also either his "list of death" or details of the threatened offence.

17. In its decision, the Regional Court noted that the applicant had twelve previous convictions, inter alia of intimidation, coercion, bodily injury and property offences.  The offences at issue in the pending proceedings had started in the context of civil proceedings, which had been instituted by the Austrian Attorney General's Department ( Finanzprokuratur ), claiming compensation for damages of AS 2,000 caused by the applicant in the context of a burglary.  In a judgment of October 1991, the St. Pölten District Court ( Bezirksgericht ) had decided against the applicant.  The applicant had filed counter-claims for compensation in respect of an illness suffered while serving a prison sentence and had threatened terrorist attacks.  Following the institution of criminal proceedings against him concerning the above threat, the applicant commenced addressing written threats of murder to various persons involved in these criminal proceedings, in particular judges and lawyers.

18. Furthermore, having heard two psychiatric experts, the Regional Court considered that the applicant suffered from a mental illness, namely paranoia querulans .  He had a system of fixed ideas and a missionary devotion to implement his plans.  His mental disturbances, combined with the further symptoms of aggressiveness, his cruelty and recklessness entailed a high risk for third persons.  The Regional Court regarded a faculty opinion on these matters as unnecessary, taking into account that the two experts largely concurred in their opinions and that there were no contradictions or shortcomings within the meaning of the relevant provision of the Code of Criminal Procedure ( Strafprozeßordnung ).

19. Moreover, the Regional Court considered that it had not been required to hear the judges and other victims concerned, as requested by the applicant.  In this respect, the Regional Court observed that the question of whether these persons had in fact been intimidated was irrelevant for legal reasons, the offence of intimidation being committed in case of threats of such a nature as to intimidate third persons in general, if the offender intended to intimidate.  The Regional Court, having regard to the details stated in the applicant's various letters, found that his threats of murder were of such a nature as to intimidate third persons in general, and he had in fact intended to intimidate the persons concerned.  Considering his mental illness, there was also a risk of further offences of the same kind.

20. The written judgment was served upon the applicant's official defence counsel on 29 October 1993.

21. The applicant, assisted by his official defence counsel, filed a plea of nullity ( Nichtigkeitsbeschwerde ) with the Supreme Court ( Oberster Gerichtshof ), challenging the dismissal of his requests for the taking of further evidence as well as the part of the legal reasoning and the findings as to his dangerousness in future.  He further lodged an appeal ( Berufung ). Defence counsel did not file any grounds of appeal, and did not request that the applicant be permitted to attend the Supreme Court hearing.  On 15 February 1994 the applicant personally filed submissions with the Supreme Court.  According to the applicant, he also requested the Supreme Court for leave to attend the hearing of his plea of nullity and appeal, but this request was to no avail.

22. On 2 March 1994 the Supreme Court held the hearing on the plea of nullity and the appeal in the absence of the applicant who was represented by his official defence counsel.  The Supreme Court rejected the plea of nullity as well as the appeal.

23. The Supreme Court, in its judgment, found that the rejection by the trial court of the applicant's requests for the taking of evidence did not impair the rights of the defence .  In particular, the Supreme Court confirmed the reasoning of the trial court that the applicant had failed to show any contradictions or shortcomings in the expert opinions which would be the only reasons to justify a faculty opinion.  Moreover, the question of whether the victims had in fact been intimidated had been irrelevant.  The Supreme Court also confirmed the legal qualification of the offences committed by the applicant.

24. Finally, in the context of the applicant's appeal, the Supreme Court examined the arguments challenging the trial court's findings as to his dangerousness in future.  In this respect, the Supreme Court considered that the prognosis was reliably founded on the psychiatric expert opinions and was confirmed by the general impression conveyed by the applicant's criminal acts.

25. The decision was received at the registry of the Krems District and Regional Court on 17 March 1994.

B. Relevant domestic law

a. Placement in an institution for mentally ill offenders

26. S. 21 of the Austrian Penal Code ( Strafgesetzbuch ) provides as follows:

"1. If a person commits an offence punishable with a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility (S. 11) resulting from a serious mental or emotional abnormality, the court shall order him to be placed in an institution for mentally ill offenders, if in view of his person, his condition and the nature of the offence it is to be feared that he will otherwise, under the influence of his mental or emotional abnormality, commit a criminal offence with serious consequences.

2. If such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking criminal responsibility, commits an offence punishable with a term of imprisonment exceeding one year under the influence of his severe mental or emotional abnormality.  In such a case the placement is to be ordered at the same time as the sentence is passed."

b. Plea of nullity and appeal against sentence

27. A first-instance court judgment given by a Regional Court can be challenged by a plea of nullity to the Supreme Court on specific grounds enumerated in S. 281 para. 1 of the Code of Criminal Procedure.  In general, the Supreme Court conducts a public hearing on the plea of nullity which may also be combined with a public hearing on appeals against sentence.  As regards hearings on a plea of nullity, S. 286 of the Code of Criminal Procedure provides that if the accused is under arrest, the notice of hearing given to him shall mention that he may only appear through counsel.

28. The sentence as such can be challenged by way of an appeal against sentence.  It may concern both points of law (in particular whether mitigating or aggravating circumstances have been correctly taken into account) and factors relating to the assessment of the sentence.  As regards the personal appearance of the accused at appeal hearings, S. 296 para. 3, second sentence, of the Code of Criminal Procedure provides that an accused who is detained shall be brought before the court if he has made a request to this effect in his appeal or counter-statement or otherwise if his personal presence appears necessary in the interest of justice.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

29. The Commission has declared admissible the applicant's complaint that he was not present at the hearing before the Supreme Court.

B. Point at issue

C. As regards Article 6 of the Convention

31. The applicant complains about the failure to allow his presence at the Supreme Court hearing of both his plea of nullity and his appeal against sentence.  The applicant relies on Article 6 paras. 1 and 3.

32. These paragraphs, in so far as they are relevant, provide:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person ..."

33. The applicant considers that his presence at the hearing before the Supreme Court was indispensable for a fair procedure.  As regards the importance of the issues before the Supreme Court, he submits inter alia that his appeal against sentence related to the question of his confinement to an institution for mentally deranged offenders.

34. The Government point out that the applicant failed to request his attendance at the hearing of his appeal in accordance with S. 296 para. 2 of the Code of Criminal Procedure.  At the admissibility stage, the Government argued under Article 26 of the Convention that the Commission was, therefore, not competent to examine the applicant's complaints about his absence at the hearing. In its admissibility decision the Commission considered that the issue was related to the substance of the applicant's complaints.

35. The Government further submit that the hearing before the Supreme Court did not involve any question which would have necessitated the applicant's personal attendance.

36. The Commission recalls that the manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein.  Where a public hearing has been held at first instance, the absence of such a hearing may be justified at the appeal stage by the special features of the proceedings at issue, having regard to the nature of the domestic appeal system, the scope of the appellate court's powers and to the manner in which the applicant's interests were actually presented and protected before the court of appeal, particularly in the light of the nature of the issues to be decided by it (cf. Eur. Court HR, Fejde v. Sweden judgment of 29 October 1991, Series A no. 212-C, pp. 67-69, paras. 27 and 31; Kremzow v. Austria judgment of 21 September 1993, Series A no. 268-B, p. 43, paras. 58-59; Botten v. Norway judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, p. 141, para. 39; see also Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, pp. 44-45, paras. 106-108 ).

37. Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal or cassation court.  Moreover, even if the court of appeal has full jurisdiction to examine both points of law and of fact, Article 6 does not always require a right to a public hearing or, if a hearing takes place, a right to be present in person (cf. Eur. Court HR, Axen v. Germany judgment of 8 December 1983, Series A no. 72, pp. 12-13, paras. 27-28; Fejde judgment, op. cit., p. 69, para. 33; Kremzow judgment, op. cit., pp. 43-44, paras. 60-61; Botten judgment, loc. cit.).

38. The Commission notes that the hearing before the Supreme Court involved both the applicant's plea of nullity and his appeal against sentence.  The Commission will examine the issue in respect of each of these proceedings in turn.

a. The plea of nullity

39. The Commission observes that under Austrian law the Supreme Court in dealing with nullity proceedings is primarily concerned with questions of law that arise in regard to the conduct of the trial and other matters. The presence of the accused, who is legally represented, is not generally required either by paragraph 1 nor 3 (c) of Article 6 (cf. Eur. Court HR, Kremzow judgment, op. cit., p. 44, para. 63).

40. In the present case, the applicant's plea of nullity related to procedural and legal matters such as the dismissal of his requests for the taking of further evidence as well as the legal reasoning.  The applicant was represented by official defence counsel.  There were no special circumstances warranting the applicant's personal presence, in particular no indication that the official defence counsel did not effectively ensure the applicant's defence (cf. Eur. Court HR, Stanford v. United Kingdom judgment of 23 February 1994, Series A no. 282-A, p. 11, paras. 27-28).

41. Accordingly, as far as the plea of nullity was concerned, the applicant's absence from the Supreme Court hearing was not in breach of Article 6.

42. In the light of this conclusion, it is not necessary to deal with the question whether the applicant ought to have formally requested leave to attend the hearing of his appeal and thereby ensured his presence in the hearing of his plea of nullity.

b. The appeal against sentence

43. In this procedure, the Supreme Court was called to decide upon the applicant's appeal against sentence.

44. The Commission notes that the applicant's official defence counsel had not filed any specific grounds of appeal, but, in support of the plea of nullity, he had challenged the Regional Court's finding that there was a risk that the applicant would in future commit criminal offences.  This circumstance was one of the legal conditions for the applicant's placement in an institution for mentally insane offenders.  The Supreme Court, having examined these arguments relating to the determination of the applicant's sentence, considered that the first instance's prognosis of the applicant's future dangerousness was reliably founded on the psychiatric expert opinions and was confirmed by the general impression conveyed by the criminal offences committed by the applicant.

45. The Commission finds that the appeal proceedings before the Supreme Court thus involved an evaluation of the applicant's personality and character which went beyond the mere review of questions of law.

46. It is true that the Supreme Court had no power to impose a severer sentence than that passed at first instance. However, the applicant's appeal concerned his confinement to an institution for mentally deranged offenders for an indefinite period and was, therefore, of the greatest importance for the applicant.

47. Taking into account what was at stake for the applicant - personal liberty - and the nature of the main issue before the Supreme Court, it was essential to the fairness of these proceedings that he be present at the hearing and, to the extent possible, afforded the opportunity to participate in it together with his official defence counsel.  The Commission does not consider that the question of the applicant's dangerousness in future could properly have been examined without a direct assessment of his personality and character.

48. In these circumstances, the Commission further considers that the Supreme Court was under a duty to take positive measures to ensure the the applicant's presence at the hearing, notwithstanding the facts that the applicant's official defence counsel, who had not filed any specific grounds of appeal, had not requested that the applicant be summoned and that the applicant had personally filed submissions (cf. Eur. Court HR, Kremzow judgment, op. cit., p. 45, paras. 67-68; Botten judgment, op. cit., p. 145, para. 53).  The Commission notes that S. 296 para. 3 of the Code of Criminal Procedure provides that, in the absence of a request, an accused being detained should be brought before the court if his personal presence appears necessary in the interest of justice.  In this legal situation, the Regional Court's finding that the applicant was suffering from mental illness obliged the Supreme Court to display particular diligence (cf., mutatis mutandis , Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 24, para. 60; Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-A, pp. 11-12, para. 22).

49. The Commission cannot, therefore, accept the Government's contention that the applicant ought to have requested leave to attend the hearing of his appeal, pursuant to the relevant procedural provision.

50. The applicant's absence from the Supreme Court's hearing of the appeals was, therefore, not in conformity with his right to a fair trial including the right to defend himself in person.

CONCLUSION

51. The Commission concludes, by 10 votes to 6, that in the present case there has been a violation of Article 6 paras. 1 and 3 (c) of the Convention.

M.F. BUQUICCHIO      N. BRATZA

   Secretary   Acting President

   to the First Chamber of the First Chamber

(or. English)

DISSENTING OPINION OF MM N. BRATZA, C. L. ROZAKIS,

Mrs J. LIDDY, MM B. MARXER, M. VILA AMIGO AND Mrs M. HION

We cannot share the view of the majority of the Commission that there has been a violation of Article 6 para. 1 of the Convention.

First we note that, the Supreme Court's task was limited to reviewing the findings of the lower instance which had heard the applicant directly.

Moreover, we attach importance to the fact that the Supreme Court had no power to impose a more severe sentence than that passed at first instance.

Taking into account the limited jurisdiction of the Supreme Court, it was not essential to the fairness of these proceedings that the applicant, who was detained in a mental institution, be present at the hearing together with his official defence counsel.  In our view, the Supreme Court, in the absence of any new factual elements, could adequately examine the Regional Court's prior assessment of the applicant's dangerousness in future on the basis of the case-file, which included psychiatric experts' reports and written submissions filed by the applicant.

In these circumstances, we consider that, in the absence of a request for leave to attend the hearing in accordance with S. 296 para. 3 of the Code of Criminal Procedure and of any other recorded motion to this effect, the Supreme Court could reasonably refrain from ensuring ex officio the applicant's personal presence at the hearing.  The interests of the applicant who was, according to the Austrian courts' findings, suffering from mental illness were safeguarded through his legal representation (cf., mutatis mutandis , Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 24, para. 60; Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-A, pp. 11-12, para. 22).

Having regard to the entirety of the proceedings before the Austrian courts, the nature of the issue before the Supreme Court  and to its limited jurisdiction, we find that there were special features justifying the applicant's absence from the hearing of his appeal, failing a formally valid request by or on behalf of the applicant to attend the hearing of his appeal.

Consequently, the applicant's absence from the Supreme Court's hearing of the appeals did not violate his right to a fair trial including the right to defend himself in person.