EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25878/94

Michael Edward Cooke

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. 16-30)              3

A. The particular circumstances of the case

(paras. 16-28)              3

B. Relevant domestic law

(paras. 29-30)              5

III. OPINION OF THE COMMISSION

(paras. 31-54)              6

A. Complaint declared admissible

(para. 31) 6

B. Point at issue

(para. 32) 6

C. As regards Article 6 of the Convention

(paras. 33-53)              6

CONCLUSION

(para. 54) 9

DISSENTING OPINION OF Mr B. MARXER 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 a British citizen, born in 1935 and resident  in a prison at Garsten , Austria.  He was represented before the Commission by Ms N. Mole, a lawyer practising in London.

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 12 August 1994 and registered on 7 December 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, 2 and 3 (a), (b), (c), (d) and (e) of the Convention.  It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 1 April 1996 after an extension of the time-limit fixed for this purpose.  The applicant replied on 10 July 1996 after  an extension of the time-limit.  On 2 July 1996, the Commission (First Chamber) granted the applicant legal aid for the representation of his case.

8. On 10 April 1997 the Commission declared admissible the applicant's complaint under Article 6 paras. 1 and 3 (c) of the Convention.  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.

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. In the early evening of 10 March 1993 the applicant was arrested at Alpbach , Austria, on suspicion of having killed, shortly before, his friend Ms. W. with whom he had come to Austria for holidays.

17. On 17 November 1993 the applicant's trial commenced before a Court of Assizes ( Geschworenengericht ) of the Innsbruck Regional Court ( Landesgericht ), sitting with a jury.  The applicant was assisted by his official defence counsel Mr. P.  An interpreter was present.              At the hearing, the Court heard the applicant's statements, the testimony of several witnesses and the explanations of the psychiatric experts Prof. P and Dr. U.  Several requests for the taking of further evidence, inter alia as to the victim's personality and behaviour in the past, the applicant's criminal responsibility and his state of mind following the offence, were dismissed.

18. At the end of the hearing, the Court put five questions to the jury: the first - main - question related to the offence of murder, the following three - subsidiary - questions concerned the offences of unpremeditated homicide, intentionally inflicted grievous bodily harm resulting in death and grievous bodily harm resulting in death, respectively, the fifth - main - question aimed at the applicant's criminal responsibility.  The Court's directions to the jury covered the jury's duties and the general legal notions of intent and negligence.  As regards the questions, the jury was inter alia directed that the offence of murder ( Mord ) consisted in the intentional killing of a human being and that premeditated homicide ( Totschlag ) was the intentional killing of a human being in a comprehensible state of emotion (in einer allgemein begreiflichen heftigen Gemütsbewegung ).

19. On 18 November 1993 the jury, by a unanimous verdict, found the applicant guilty of murder.  The jury also unanimously found that the applicant was criminally responsible.  According to the record on their deliberations, the jury relied in particular on the testimony of the hotel owner as well as on the expert opinion of Prof. P.

20. The Court sentenced the applicant to twenty years' imprisonment.  In fixing the sentence, the Court considered as a mitigating circumstance that the applicant's diminished responsibility ( verminderte Dispositionsfähigkeit ), although his offence had not been committed upon provocation and did not obviously contradict his previous behaviour .  Moreover, he had not made a repentant confession ( reumütiges Geständnis ), and his statements regarding the offence had not essentially contributed to the establishment of the truth.

21. The applicant, assisted by his official defence counsel Mr. P., filed a plea of nullity ( Nichtigkeitsbeschwerde ) with the Supreme Court ( Oberster Gerichtshof ), challenging the order of questions put to the jury, the dismissal of his requests for the taking of further evidence as well as the conclusiveness of the findings of the jury.  He further lodged an appeal ( Berufung ) complaining about the severity of the sentence, referring to further mitigating circumstances such as his previous reputable life, his feelings of regret and repentance and his emotional state at the time of the offence.

22. The Public Prosecutor's Office ( Staatsanwaltschaft ) also appealed against the sentence, requesting that a life sentence be imposed.  The Office considered that the fact that applicant's responsibility had been diminished at the time of the offence could not be regarded as a mitigating factor.  Rather it showed the applicant's particular dangerousness and aggressiveness towards women intending to terminate their relations with him.

23. On 26 January 1994 the Supreme Court issued a summons for the hearing on the plea of nullity and the appeals, indicating that, at the hearing on the plea of nullity, the applicant, being incarcerated, could only appear through his official defence counsel and that at the hearing of the appeals he would not be brought to court as the conditions of S. 296 para. 3 of the Code of Criminal Procedure were not satisfied.

24. On 3 February 1994 the Vienna Bar Association, upon the request of the senior partner of counsel Mr. P., appointed Mr. S. as the applicant's official defence counsel for the purposes of the proceedings before the Supreme Court.  The applicant received the certificate of appointment on 10 February 1994.  The applicant requested the Supreme Court to be represented by Mr. P. at the hearings and to attend them as an observer.  On 16 February 1994 the Innsbruck Regional Court, upon instruction by the Supreme Court, informed the applicant that the conditions of S. 296 para. 3 of the Code of Criminal Procedure were not satisfied, and that attendance as observer was not possible.

25. On 17 February 1994 the Supreme Court held the hearing on the plea of nullity and the appeals in the absence of the applicant.  He was represented by his new official defence counsel Mr. S.  The Supreme Court rejected the plea of nullity as well as both appeals.

26. 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 in detail the reasoning of the trial court that the requests concerned in part irrelevant issues and in part issues which required expert evidence.  Moreover, the applicant had failed to show the necessity of a second expert opinion as to his criminal responsibility.  The Supreme Court also dismissed the applicant's argument that the order of questions put to the jury had been incorrect.  The Supreme Court further found that the findings of the jury could not be objected to.  In particular, the applicant's allegation of a discrepancy in the statements of one of the main witnesses was unfounded and, in any event, expert evidence had been taken on the relevant issue, namely his mental state at the time of the offence.

27. As regards the appeals, the Supreme Court noted that the applicant's own statements appeared to indicate that he quickly lost his self-control in contacts with women.  Nevertheless, there was no sufficient reason to exclude the mitigating circumstance that he had been previously of good conduct.  The Supreme Court further, on the basis of the file, considered that there had been no provocation and that there were no indications of an exceptional mental or emotional excitement.  Except for the further mitigating circumstance, there was no other reason to amend the evaluation regarding the applicant's character or his mental state at the time of the offence, or his motive.  Taking all circumstances into account, the sentence imposed by the trial court appeared appropriate.

28. The decision was received at the Innsbruck Regional Court on 3 March 1994 and by the applicant's defence counsel Mr. P. on 10 March 1994.

B. Relevant domestic law

29. A first-instance court judgment given by a Court of Assizes at a Regional Court can be challenged by a plea of nullity to the Supreme Court on specific grounds enumerated in S. 345 para. 1 of the Code of Criminal Procedure.  The Supreme Court's task is mainly to control the acts of the bench and the presiding judge of the Court of Assizes examining, in particular, whether the trial has been conducted in a manner which complies with fundamental procedural principles, whether the right questions have been put and the right directions given to the jury.  The Supreme Court may only verify whether the jury has provided unclear, incomplete or contradictory answers to the questions put to it.  The Supreme Court supervises the correct application of the criminal law, but in so doing is bound by the jury's findings as to the facts.  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, applicable to nullity pleas arising out of trials by jury pursuant to S. 344 of the Code, provides that if the accused is under arrest, the notice of hearing given to him shall mention that he may only appear through counsel.

30. 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

31. 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

32. The point at issue is whether there has been a violation of Article 6 paras. 1 and 3 (c) of the Convention.

C. As regards Article 6 of the Convention

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

34. 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 ..."

35. The applicant maintains that it was essential to the fairness of the proceedings before the Supreme Court that he be present during the hearing.  He submits that a new defence counsel for this hearing was appointed shortly before and that there had been no communication between him and counsel before the hearing.  Moreover, the Public Prosecutor's Office, in its appeal, had requested an increase of his sentence to life imprisonment, whereas he had applied for a reduction of his sentence.

36. The Government reiterate 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.

37. 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.

38. 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).

39. 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.).

40. 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

41. 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 or 3 (c) of Article 6 (cf. Eur. Court HR, Kremzow judgment, op. cit., p. 44, para. 63).

42. In the present case, the applicant's plea of nullity related to procedural and legal matters such as the order of questions put to the jury, the dismissal of his requests for the taking of further evidence as well as the conclusiveness of findings of the jury. The applicant was represented by official defence counsel.  It is true that a new official defence counsel, for the purposes of the Supreme Court hearing, was appointed for the applicant only shortly before the date of the hearing and .  However, the Commission notes that this was done in coordination with Mr. P., his  - main - official defence counsel, who informed the applicant accordingly.  In these circumstances, the applicant's general apprehensions are not sufficient to cast doubt on the effectiveness of his representation at the hearing of the pleas of nullity before the Supreme Court.  Accordingly, there were no special circumstances warranting the applicant's personal presence (cf. Eur. Court HR, Stanford v. United Kingdom judgment of 23 February 1994, Series A no. 282-A, p. 11, paras. 27-28).

43. 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.

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

b. The appeals against sentence

45. In this procedure, the Supreme Court was called to decide upon both the applicant's and the Public Prosecutor's appeals against sentence.

46. The Commission notes that, in his ground of appeal, the applicant's official defence counsel had complained of the severity of the sentence.  Reference was made to mitigating circumstances such as the applicant's previous good conduct, his feelings of regret and repentance or his emotional state at the time of the offence.  The Public Prosecutor Office requested that a life sentence be imposed, arguing the applicant's particular dangerousness.

47. The Supreme Court, having regard to the applicant's own submissions, considered that although he apparently quickly lost his self-control in contacts with women, there was no sufficient reason to exclude the mitigating circumstance of his previous good conduct.  The Supreme Court further, on the basis of the file, considered that there had been no provocation and that there were no indications of an exceptional mental or emotional excitement.  Except for the further mitigating circumstance, there was no other reason to amend the evaluation regarding the applicant's character or his mental state at the time of the offence, or his motive.  Taking all circumstances into account, the sentence imposed by the trial court appeared appropriate.

48. 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.

49. Moreover, the Supreme Court was called upon to examine whether, for the reasons advanced by the Prosecutor's Office, the applicant's sentence should be increased from twenty years' imprisonment to a life sentence.

50. 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 questions regarding the applicant's mental and emotional state at the time of the offence, his motive or his dangerousness and aggressiveness in general could properly have been examined without a direct assessment of his personality and character.

51. In these circumstances, the Commission further considers that the Supreme Court was under a duty to take positive measures to ensure the applicant's presence at the hearing, notwithstanding the fact that the applicant's official defence counsel had not requested that the applicant be summoned (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 context, the late appointment of a new defence counsel for the purposes of this hearing and the applicant's recorded wish to be present obliged the Supreme Court to display particular diligence.

52. The Commission cannot, therefore, accept the Government's contention that the applicant, a foreigner not familiar with Austrian law, ought to have requested leave to attend the hearing of his appeal, pursuant to the relevant procedural provision.

53. 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

54. The Commission concludes, by 15 votes to 1, 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 Mr B. MARXER

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

The applicant, assisted by his official defence counsel, lodged an appeal complaining about the severity of the sentence, referring to further mitigating circumstances such as his previous reputable life, his feelings of regret and repentance and his emotional state at the time of the offence.  The Public Prosecutor's Office also appealed against the sentence, requesting that a life sentence be imposed.  The Office considered that the fact that applicant's responsibility had been diminished at the time of the offence could not be regarded as a mitigating factor.  Rather it showed the applicant's particular dangerousness and aggressiveness towards women intending to terminate their relations with him.

The Supreme Court's task is generally limited to supervising the correct application of the criminal law, and the question of whether mitigating or aggravating circumstances have been correctly taken into account is a question of law.  In the exercise of its supervisory functions, the Supreme Court is bound by the jury's findings as to the facts.

In the present case, the Supreme Court had to consider both appeals against sentence on the basis of the facts established by the Court of Assizes of the Innsbruck Regional Court.  On that basis, the Supreme Court, having regard to the applicant's own submissions, considered that although he apparently quickly lost his self-control in contacts with women, there was no sufficient reason to exclude the mitigating circumstance of his previous good conduct.  The Supreme Court further, on the basis of the file, considered that there had been no provocation and that there were no indications of an exceptional mental or emotional excitement.  Except for the further mitigating circumstance, there was no other reason to amend the evaluation regarding the applicant's character or his mental state at the time of the offence, or his motive.  Taking all circumstances into account, the sentence imposed by the trial court appeared appropriate.

The only issue to be determined by the Supreme Court was whether, having regard to the established facts, the relevant provisions of the Austrian Penal Code regarding mitigating or aggravating circumstances had been correctly applied.  In particular, it has to be stressed that the Supreme Court itself was not called upon to make a direct assessment of the applicant's personality and character.  Accordingly, the personal attendance of the applicant at the hearing, failing a formally valid request by or on behalf of the applicant, was not required by Article 6.

Accordingly, in the present case there has been no violation of Article 6 paras. 1 and 3 (c) of the Convention.