EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21842/93

George Kempers

against

Austria

REPORT OF THE COMMISSION

(adopted on 14 January 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. 16-23 )              3

A. The particular circumstances of the case

(paras. 16-21)              3

B. Relevant domestic law

(paras. 22-23)              3

III. OPINION OF THE COMMISSION

(paras. 24-32)              4

A. Complaint declared admissible

(para. 24) 4

B. Point at issue

(para. 25) 4

C. As regards Article 6 para. 1 of the Convention

(paras. 26-31)              4

CONCLUSION

(para. 32) 5

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO

       THE ADMISSIBILITY OF THE APPLICATION 6

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 19

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 Dutch citizen, born in 1949 and residing in Landgraaf (Netherlands).  He was represented before the Commission by Mr. F. Insam , a lawyer practising in Graz .

3. The application is directed against Austria.  The respondent Government were represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

4. The case concerns criminal proceedings against the applicant in which he was convicted of drug trafficking.  The applicant complains that he did not have a fair hearing and invokes Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 16 April 1993 and registered on 13 May 1993.

6. On 6 September 1995 the Commission 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 concerning the surveillance of the contact with his defence counsel by the Investigating Judge at the pre-trial stage and his complaint that he was not given the possibility to react to the submissions made by the Procurator General in the proceedings before Supreme Court. It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 28 November 1995.  The applicant replied on 22 January 1996.

8. On 27 February 1997 the Commission declared admissible the applicant's complaint that he was not given the possibility to react to the submissions made by the Procurator General in the proceedings before Supreme Court.  It declared inadmissible the remainder of the application.

9. The text of the Commission's final decision on admissibility was sent to the parties on 12 March 1997 and they were invited to submit such further information or observations on the merits as they wished.  No such observations were submitted.

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 M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM B. MARXER

B. CONFORTI

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 14 January 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 decisions on the admissibility of the application are 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 16 January 1992 the Graz Regional Court ( Landesgericht ) convicted the applicant and R.M., C.S. and V.B. under the Drug Offences Act of having attempted in April 1991 to sell a large quantity of drugs.  The Court sentenced the applicant to six years' imprisonment and to a fine of 1,4 million AS or 6 months' imprisonment in default.

17. On 13 May 1992 the Graz Public Prosecutor's Office lodged an appeal against the sentence.

18. On 20 May 1992 the applicant lodged a plea of nullity and an appeal against the sentence.

19. On 16 September 1992 the Procurator General' Office ( Generalprokuratur ) filed the following observations with the Supreme Court ( Oberster Gerichtshof ):

"In the view of the Procurator General's Office, the pleas of nullity brought by the accused George Kempers , R.M. and V.B. meet the criteria for a decision pursuant to Section 285d of the Code of Criminal Procedure.  The transmission of a copy of the decision is herewith requested."

The above submissions of the Procurator General's Office were not served on the applicant.

20. On 16 September 1992 the Supreme Court rejected the plea of nullity.

21. On 21 December 1992 the Graz Court of Appeal decided on the applicant's appeal.  It upheld the sentence as regards the term of imprisonment and reduced the fine to 1 million AS and the imprisonment in default to 4 months.

B. Relevant domestic law

22. Under Section 285 (d) para. 1 of the Code of Criminal Procedure ( Strafprozeßordnung ) a plea of nullity may be rejected by the Supreme Court after deliberation in private if the Supreme Court unanimously finds that the complaint should be dismissed as manifestly ill-founded without any need for further deliberation.

23. Following the Brandstetter v. Austria judgment of 28 August 1991 (Series A no. 211) and since 1 September 1993, Article 35 § 2 of the Code of Criminal Procedure reads as follows:

"If the public prosecutor at an appellate court submits observations on an appeal on grounds of nullity ..., the appellate court shall communicate those observations to the accused (person concerned), advising him that he may submit comments on them within a reasonable period of time that it shall determine.  Such communication may be dispensed with if the prosecutor confines himself to opposing the appeal without adducing any argument, if he merely supports the accused or if the accused's appeal is upheld."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

24. The Commission has declared admissible the applicant's complaint that he was not given the possibility to react to submissions made by the Procurator General in the proceedings before the Supreme Court

B. Point at issue

25. The only point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

26. Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

27. The applicant complains that in violation of the principle of equality of arms the Procurator General submitted a statement to the Supreme Court of which he was not informed and to which he had no possibility to react.

28. The Government accept that the statement by the Procurator General's office was not served on the applicant.  They consider, however, that the "submissions" did not amount to comments on the facts of the case, nor did they amount to factual arguments, such that the principle of "equality of arms" was not violated.

29. The Commission recalls that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent.  In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (see, Eur. Court HR, Bulut v. Austria judgment of 22 February 1996, Reports 1996-II, p. 359, para. 47 and the authorities cited therein).

30. In the Bulut case, which also concerned the passing on of submissions by the Procurator General to Supreme Court of which the defence had not been made aware and which had the same contents as the submissions in the present case, the Court has found as follows:

"In the present criminal appeal, the submission of the observations allowed the Attorney-General to take up a clear position as to the applicant's appeal, a position which was not communicated to the defence and to which the defence could not reply.  In any event, as the Commission rightly pointed out, the principle of the equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality.  It is a matter for the defence to assess whether a submission deserves a reaction.  It is therefore unfair for the prosecution to make submissions to a court without the knowledge of the defence " ( Bulut judgment, op. cit , p. 359-360, para. 49).

31. The Commission therefore finds that the passing of submissions by the prosecution to the Supreme Court in the present case was not compatible with the principle of equality of arms.

CONCLUSION

32. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber