EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22961/93

Ismail Ilhan

against

Austria

REPORT OF THE COMMISSION

(adopted on 9 April 1997)

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. 16-26) 3

A. The particular circumstances of the case

(paras. 16-24) 3

B. Relevant domestic law

(paras. 25-26) 4

III. OPINION OF THE COMMISSION

(paras. 27-38) 5

A. Complaint declared admissible

(para. 27) 5

B. Point at issue

(para. 28) 5

C. Article 6 of the Convention

(paras. 29-37) 5

CONCLUSION

(para. 38) 6

DISSENTING OPINION OF Mr. K. HERNDL

JOINED BY MM. B. CONFORTI and C. BÃŽRSAN 7

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 9

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 Turkish citizen, born in 1960 and resident in

Feldkirch. He was represented before the Commission by Mr. B. Graf, a lawyer

practising in Feldkirch.

3. The application is directed against Austria. The respondent Government

were represented by their Agent, Mr. F. Cede, Head of the International Law

Department at the Federal Ministry of Foreign Affairs.

4. The case concerns the applicant's complaint that, in criminal proceedings

against him, he was prevented from either defending himself in person or through

his counsel. The applicant invokes Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 21 October 1993 and registered on 19

November 1993.

6. On 6 April 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 its admissibility and merits.

7. The Government's observations were submitted on 28 June 1995 after an

extension of the time-limit fixed for this purpose.  The applicant replied on 16

August 1995.

8. On 15 May 1996 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the

parties on 29 May 1996 and they were invited to submit such further information

or observations on the merits as they wished. No such observations were

received.

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:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

12. The text of this Report was adopted on 9 April 1997 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 3 November 1992 the Feldkirch District Court (Bezirksgericht), upon the

Public Prosecutor's demand for a stated penalty (Strafantrag)  issued a penal

order (Strafverfügung) against the applicant in summary proceedings without

trial. The Court found that the applicant, on 17 August 1992, had, in passing a

parked vehicle, driven on the left side of the road with his car and had

collided with a motorcyclist, who had fallen down and had suffered a brain

concussion. The Court convicted the applicant of having negligently caused

bodily harm (fahrlässige Körperverletzung) and imposed a fine of 50 daily rates

of ATS 100 each (in case of default 25 days' imprisonment).

17. On 26 January 1993, upon the applicant's objection (Einspruch), a trial

was held before the Feldkirch District Court. The applicant did not appear. The

Court, referring to S. 459 of the Code of Criminal Procedure

(Strafprozeßordnung), decided that the trial be held in the absence of the

applicant. It heard H., who had been injured in the traffic accident, as a

witness. H. stated that the applicant, in order to pass a parking car, had

driven on the left side of the road.

18. Following the trial, the Court passed a judgment in absentia

(Abwesenheitsurteil), convicting the applicant of having negligently caused

bodily harm and imposing a fine of 50 daily rates of ATS 100 each (in case of

default 25 days' imprisonment). However, it suspended the sentence on probation.

The Court referred to the police investigations, in particular to the

applicant's statement before the police, noting that he himself had admitted

that he had driven too far on the left side of the road, and to the

corroborating statement of the witness H.

19. On 22 March 1993 the applicant lodged an objection (Einspruch) against the

judgment in absentia. He submitted in particular that the trial should not have

been conducted in his absence, as he had not been duly summoned. In these and

the following proceedings the applicant was represented by counsel.

20. Thereupon, the Feldkirch District Court fixed 18 May 1993 as date for

rehearing the case. The applicant was summoned by a standard-form letter

entitled 'Personal summons of the accused to trial'. The standard text informed

him that he was to be heard by the court as an accused and was, therefore,

requested to appear at the trial at the date and place indicated. Further the

following sentence was added to the standard text: 'Should you fail to appear at

the trial, your appeal will be void and the judgment in absentia will become

final'. At the bottom of the page, the standard-form letter contained some

instructions. They informed the applicant, inter alia, that he had the right to

appoint a counsel and that, should he fail to appear at the trial, the hearing

would be conducted in his absence or he would be brought before the judge by the

police.

21. On 18 May 1993 the Feldkirch District Court, in presence of the

applicant's counsel, noted that the applicant himself had not appeared and

decided on the basis of S. 478 para. 3 of the Code of Criminal Procedure that

the applicant's objection against the judgment in absentia was to be considered

void and that this judgment become final. It considered in particular that the

applicant had been duly summoned for the trial of 18 May 1993 and that the

summons had drawn his attention to the consequences of his absence.

22. On 8 July 1993 the applicant filed an appeal (Beschwerde) against this

decision. He submitted in particular that it had not been absolutely clear to

him that he had to appear personally before the court. Although the summons

requested him to appear at the trial, neither the sentence added to the standard

text, nor the instructions, requested that he appear in person. On the contrary,

the said instructions informed him that he had the right to appoint a counsel

and that, should he fail to appear, the trial might be conducted in his absence

or he might be brought before the judge by the police. Thus, he could assume

that the presence of his counsel at the trial would be sufficient. Moreover,

being a Turkish national, he was not familiar with legal German. Finally, the

applicant complained that S. 478 para. 3 of the Code of Criminal Procedure was

contrary to the requirements of a fair trial as it discriminated against an

accused who had already been convicted in absentia.

23. On 16 July 1993 the applicant, on the Feldkirch Regional Court's

(Landesgericht) request, submitted the original of the summons at issue.

24. On 21 July 1993 the Feldkirch Regional Court dismissed the applicant's

appeal. The court found that the summons had been duly served on the applicant

and had explicitly drawn his attention to the consequences of his absence at the

trial. It followed from the title of the summons and the additional sentence as

well as from the nature of a summons that he was requested to appear personally

before the court. Moreover, he had not been prevented from doing so by

circumstances beyond his control. As regards the applicant's complaint that S.

478 para. 3 of the Code of Criminal Procedure was discriminatory, the court

noted that the accused had to be warned explicitly about the consequences of his

absence. Thus, the sanction provided for in the contested provision was

objectively justified and was, therefore, in accordance with the requirements of

a fair trial.

B. Relevant domestic law

25. S. 459 of the Code of Criminal Procedure (Strafprozeßordnung) deals with

the case in which the accused, who has been duly summoned, does not appear in

proceedings before the district court. It provides that the judge, if he deems

it necessary to hear the accused, may order that he appear personally or, if the

accused has already been ordered to do so, that he be brought before the court.

Otherwise, the judge may start the proceedings, take evidence and, after having

heard the prosecutor, give his judgment, which has to be served on the accused.

26. According to S. 478 the accused, who has been convicted in absentia in

accordance with S. 459, can lodge an objection (Einspruch) within two weeks

after service of the judgment, if he has not been duly summoned, or if he has

been prevented to appear by circumstances beyond his control (paragraph 1). In

case the district court finds that the objection is well-founded, it has to fix

a date for a new trial. If the accused does not appear, his objection is to be

considered void and the contested judgment in absentia becomes final (paragraph

3).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

27. The Commission has declared admissible the applicant's complaint that, in

criminal proceedings against him, he was prevented from defending himself either

in person or through his counsel.

B. Point at issue

28. The point at issue is whether there has been a violation of Article 6

para. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention.

C. Article 6 (Art. 6)  of the Convention

29. The applicant complains under Article 6 (Art. 6) of the Convention that,

at the trial of 18 May 1993 which had been fixed for rehearing his case after

his conviction in absentia, he was prevented from either defending himself in

person or through his counsel.

30. Article 6 (Art. 6) of the Convention, so far as relevant, reads as

follows:

"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 or through legal assistance of

his own choosing ... "

31. The applicant submits that S. 478 para. 3 of the Code of Criminal

Procedure prevented his counsel from presenting his defence at the trial on 18

May 1993. Thus, the arguments of the defence unlike the arguments of the

prosecution were not heard at all in the criminal proceedings against him. He

maintains that it was not clear from the summons that he had to appear

personally at the trial. Moreover, the applicant considers that the requirement

of his personal presence, in addition to his counsel's presence, is contrary to

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention. He concedes that the

presence of the accused may be of considerable importance in criminal

proceedings. However, the requirement that he be adequately defended is decisive

for their fairness. Thus, the fact that he did not appear at the trial on 18 May

1993 cannot justify that he was deprived of his right to be defended by counsel.

32. The Government submit that Article 6 para. 3 (c) (Art. 6-3-c) envisages

the presence of a defence counsel in addition to the accused, but not the

representation of an absent client by the defence counsel. Moreover, in criminal

proceedings the requirements in respect of the right and the obligation to

participate in the trial are more stringent than in civil proceedings. Thus, the

Code of Criminal Procedure may, by penalizing his absence, require the accused

to be personally present. According to the Government, S. 478 para. 3 of the

Austrian Code of Criminal Procedure is an objectively justified measure which is

in compliance with the requirements of a fair trial. They argue in particular

that the applicant was duly summoned to the trial on 18 May 1993 and was clearly

informed of the consequences of his absence.

33. The Commission recalls that the requirements of paragraph 3 of Article 6

(Art. 6-3) to be seen as particular aspects of the right to a fair trial

guaranteed by paragraph 1. It will, therefore, examine the complaint under both

provisions taken together (see Eur. Court HR, Lala v. the Netherlands judgment

of 22 September 1994, Series A no. 297-A, p. 12, para. 26; Pelladoah v. the

Netherlands judgment of 22 September 1994, Series A no. 297-B, p. 33, para. 33).

34. The Commission notes in the first place that the applicant did not attend

the hearing on 18 May 1993 in person. He submits that he considered that his

counsel's presence would be sufficient. The Commission, therefore, finds that

the applicant has not availed himself of his right to defend himself in person.

Thus, it remains to be ascertained whether counsel for the applicant was in a

position to conduct his defence.

35. The Commission recalls that it is of crucial importance for the fairness

of the criminal justice system that the accused be adequately defended, whereby

this interest prevails over the interest that the accused should appear at his

trial. Thus, the fact that the defendant, in spite of having been properly

summoned, does not appear, cannot - even in the absence of an excuse - justify

depriving him of his right under Article 6 para. 3 (Art. 6-3) of the Convention

to be defended by counsel (Lala judgment, loc. cit., p. 13, para. 33; Pelladoah

judgment, loc. cit., p. 34, para. 40).

36. In the present case, the Feldkirch District Court convicted the applicant

in absentia on 26 January 1993. In these proceedings he was not represented by

counsel. Upon the applicant's objection, 18 May 1993 was fixed for rehearing the

case. At the trial counsel for the defence appeared, but not the applicant

himself. Thereupon, the District Court, noting that the applicant had been duly

summoned, decided in accordance with S. 478 para. 3 of the Austrian Code of

Criminal Procedure that the applicant's objection was to be considered void and

that the judgment in absentia of 26 January 1993 become final. Given this legal

situation, there was no room for the applicant's counsel to conduct his defence.

Moreover, the Commission notes that the rehearing, under domestic law, was the

last instance where the case could be fully examined as to questions of fact and

law.

37. For these reasons, the Commission finds that the applicant did not have a

fair hearing in the criminal proceedings against him, in particular as, at the

trial for rehearing his case after his conviction in absentia, he was deprived

of his right to be defended by counsel.

CONCLUSION

38. The Commission concludes, by 13 votes to 3, that in the present case there

has been a violation of Article 6 para. 1 taken together with Article 6 para. 3

(c) (Art. 6-1+6-3-c) of the Convention.

       M.F. BUQUICCHIO    J. LIDDY

          Secretary    President

    to the First Chamber of the First Chamber

(Or. English)

DISSENTING OPINION OF Mr. K. HERNDL

JOINED BY MM. B. CONFORTI and C. BÃŽRSAN

It is with regret that I am obliged to state that I cannot concur with the

views expressed by the majority of my distinguished colleagues of the

Commission, who held that in the present case Article 6 para. 1 taken together

with Article 6 para. 3 (c) of the Convention has been violated.

The following are my reasons for dissenting from the majority.

In determining that the applicant "did not have a fair hearing in the

criminal proceedings against him, in particular as, at the trial for rehearing

his case after his conviction in absentia, he was deprived of his right to be

defended by counsel" (para. 37 of the report) the majority rely heavily if not

exclusively on the judgments of the Court in the cases of Lala v. the

Netherlands (Series A, No. 297-A) and Pelladoah v. the Netherlands (Series A,

No. 297-B). They base their view in particular on the Court's dictum in those

cases to the effect that "the fact that the defendant, in spite of having been

properly summoned, does not appear, cannot - even in the absence of an excuse -

justify depriving him of his right under Article 6 para. 3 of the Convention to

be defended by counsel" (Lala judgment, loc. cit., para. 33, Pelladoah judgment,

loc. cit., para. 40). The present case, however, differs from the Lala and

Pelladoah cases in several important aspects.

While Lala and Pelladoah had been convicted in absentia and appealed to

the higher court (and in the last analysis even to the Supreme Court) we are

dealing here only with a first instance case which, so to speak, went through

two stages. It must be emphasized that the applicant's complaint concerns

exclusively the procedure before the trial court, ie. the Feldkirch District

Court and not the subsequent appeal proceedings before the higher court, ie. the

Feldkirch Regional Court.

What then are the basic facts of the case? The applicant was summoned to

stand trial before the Feldkirch District Court on 26 January 1993 for a minor

offence. It was at this stage that the applicant had the possibility of being

present and defending himself personally or of defending himself through legal

assistance of his own choice, as provided for in Article 6 para. 3 (c) of the

Convention. At the trial hearing, neither the applicant nor his legal

representative appeared. Accordingly, the applicant was sentenced in absentia on

the basis of S. 459 of the Code of Criminal Procedure. Thereupon, the applicant

seized the trial court, ie. the same court, with an objection against the

judgment in absentia alleging that he had not been properly summoned to the

hearing. As the Commission notes in its report (para. 19) in these proceedings

the applicant was represented by counsel. In fact, it was the applicant's

counsel who drafted and signed the objection on the applicant's behalf.

The trial court ordered another hearing for 18 May 1993. In summoning the

applicant to that hearing, the court explicitly drew his attention to the fact

that if he were not to appear at the hearing, his objection would have to be

considered as void and the contested judgment in absentia would become final.

This legal consequence in case of non-appearance of the accused is provided for

by S. 478 (3) of the Code of Criminal Procedure.

It is uncontested that the applicant was properly summoned to the hearing

of 18 May 1993. The summons was indeed received by the applicant's counsel as is

shown by the latter's presence at the hearing. Although the legal consequences

of any absence of the applicant were clear to the applicant's counsel, and hence

to the applicant himself, the applicant did not appear at the hearing. The

inescapable result, entirely foreseeable for the applicant's counsel, and hence

the applicant himself, was that his objection had to be declared void whereupon

the original judgment in absentia became final by virtue of S. 478 (3) of the

Code of Criminal Procedure.

I believe that this result, unfortunate as it may be for the applicant, is

primarily imputable to the conduct of the applicant and his legal representative

for which the Republic of Austria cannot be held responsible. The applicant had

all means at his disposal to defend himself in person or through counsel at the

hearing of 26 January 1993, and subsequently to contest the judgment in

absentia. He furthermore enlisted the help of an experienced counsel whose duty

it was to explain the legal situation to him.

The fact that domestic law in such a case would insist on the personal

presence of the accused at the hearing and would make his personal presence a

condition for the legal evaluation of an objection against a judgment in

absentia (S. 478 (3) of the Code of Criminal Procedure), cannot be said to be in

violation of Article 6 of the Convention and in particular para. 3 (c) of that

Article. On the contrary: the importance which the domestic law in such a case

attaches to the personal presence of an accused would seem to be completely in

line with the basic tenets of Article 6.

Nor would the sanction for non-appearance - namely considering as void an

objection such as the one lodged by the applicant - seem to be disproportionate

if one takes into account the essential element of Article 6, namely that the

accused ought to be present in person at Court hearings in criminal cases.

The applicant and in particular his lawyer were fully aware of the legal

consequences of a non-appearance at that stage of the proceedings, but

apparently had made their choice. In view of this I cannot see that the decision

of the Feldkirch District Court to declare the applicant's objection void, was

in violation of Article 6 para. 1 taken together with Article 6 para. 3 (c) of

the Convention.