Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20864/92

Neville Noah Feingold

against

Austria

REPORT OF THE COMMISSION

(adopted on 11 April 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-27) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-26). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(para. 27). . . . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 28-37) . . . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 28). . . . . . . . . . . . . . . . . . . . .5

B. Point at issue

(para. 29). . . . . . . . . . . . . . . . . . . . .5

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

(paras. 30-36). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 37). . . . . . . . . . . . . . . . . . . . .6

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . .7

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 citizen of the United Kingdom, born in 1951

and resident in Austria. He was represented before the Commission by

Mr. G. Lansky, a lawyer practising in Vienna.

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Ambassador Mr. F. Cede,

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

4. The admissible part of the case concerns the applicant's

complaint that he did not receive, and was unable to comment on, a

statement passed by the Attorney-General to the Supreme Court. The

applicant invokes Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 12 October 1992 and registered

on 28 October 1992.

6. On 2 March 1994 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 15 June 1994

after an extension of the time-limit fixed for this purpose. The

applicant replied on 16 September 1994 after an extension of the time-

limit.

8. On 6 April 1995 the Commission declared admissible the

applicant's complaint under Article 6 of the Convention to the extent

that related to the statement passed by the Attorney-General to the

Supreme Court. It declared the remainder of the application

inadmissible.

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

to the parties on 26 April 1995 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.

11. The Commission considered the state of the proceedings on

13 September 1995 and on 24 October 1995.

C. The present Report

12. 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:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

13. The text of this Report was adopted on 11 April 1996 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.

14. 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.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. 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

17. On 10 January 1991 an indictment was brought against the

applicant, accusing him of having caused damage of over AS 203 million

to the Sun Insurance Office. The prosecutor requested an order for the

confiscation of the unjust enrichment, pursuant to Article 20a of the

Criminal Code (Strafgesetzbuch).

18. On 12 April 1991 the applicant, by his then representative, made

a request under Article 224 of the Code of Criminal Procedure

(Strafprozeßordnung) for further witnesses to be heard. On 3 May 1991

the applicant's present representative went on the court record, and

on 8 May 1991 the applicant's representative requested further

evidence, the adjournment of the trial (as the representative had only

just been appointed) and, in the alternative, the summoning of

witnesses and experts at the trial. It appears that the judge who had

been nominated as presiding judge, Judge Gallent, took no decision on

the request.

19. Judge Gallent did not participate as trial judge when the main

proceedings opened on 14 May 1991 as he had been promoted.

20. On 20 September 1991 the applicant was convicted by the Vienna

Regional Court (Landesgericht) of 6 counts of disloyalty ("Untreue"),

contrary to Article 153 of the Criminal Code.

21. The applicant was sentenced to 8½ years' imprisonment and ordered

to pay AS 37,477,570.13 pursuant to Article 20a of the Criminal Code.

No order was made in respect of the private parties to the criminal

proceedings, who were referred to the civil proceedings available.

22. The applicant entered a plea of nullity with respect to the

conviction and an appeal against the sentence. The Supreme Court

(Oberster Gerichtshof) rejected the plea of nullity in camera on

25 February 1992 as partly clearly unfounded under Article 285d para.

1 (2) of the Code of Criminal Procedure, and partly as not made in

accordance with the law, under Article 285d para. 1 (1) of the Code of

Criminal Procedure. The Attorney-General had filed the following

comment:

"In the view of the Attorney-General's office, the plea of

nullity submitted by the accused, Neville Noah Feingold, meets

the criteria for a decision pursuant to Article 285d of the Code

of Criminal Procedure. The transmission of a copy of the

decision is requested."

23. The applicant was not served with a copy of this comment, and was

not given the opportunity to make representations on it.

24. The Supreme Court found that the plea of nullity under

Article 281 para. 1 (5) of the Code of Criminal Procedure was an

inadmissible attempt to challenge facts rather than the reasoning

underlying the judgment and that the court had adequately reasoned its

decision; under Article 281 para. 1 (5a), it found that the applicant

had not raised issues based on the case-file, but had laid out a

scenario which was favourable to him, and compared it with the decision

of the Regional Court.

25. In connection with the plea of nullity under Article 281

para. 1 (11) of the Code of Criminal Procedure (error of law in

sentencing), the Supreme Court noted that the Regional Court had found

as a fact that the applicant had unlawfully enriched himself in the sum

of AS 37,477,570.13, and it found that the statements in the plea of

nullity that an expert's opinion did not necessarily lead to that

conclusion took no account of the findings of fact of the Regional

Court.

26. On 14 April 1992 the Vienna Court of Appeal (Oberlandesgericht),

in which Judge Gallent participated, granted the applicant's appeal

against sentence in part. It found that the Regional Court had failed

to take into account the mitigating circumstance that the applicant was

only partly convicted for the full offence, and partly for attempt.

It reduced the sentence to 7 years' imprisonment.

B. Relevant domestic law

27. Article 285d para. 1 of the Code of Criminal Procedure

(Strafprozeßordnung) provides:

"A plea of nullity may be rejected immediately after deliberation

in private:

1. if it should already have been rejected by the court at first

instance, pursuant to Article 285 (a) ...,

2. if the plea of nullity is based on the grounds of nullity

enumerated in Article 281 para. 1 (1-8 and 11) and if the Supreme

Court unanimously finds that the complaint should be dismissed

as manifestly ill-founded without any need for further

deliberation."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. The Commission has declared admissible the applicant's complaint

that he did not receive, and was unable to comment on, the statement

of the Attorney-General.

B. Point at issue

29. Accordingly, the issue to be determined 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

30. 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 ... ."

31. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention on the ground that he was not given a copy of the statement

by the Attorney-General, and was not able to comment on it.

32. The Government submit that the Attorney-General's statement that

the case could be dealt with under Article 285d of the Code of Criminal

Procedure is not at all the same as the "croquis" at issue in the

Brandstetter case (Eur. Court H.R., Brandstetter judgment of 28 August

1991, Series A no. 211) because in the statement in the present case,

the Attorney-General did not in fact comment on the substance of the

plea of nullity. They add that the Attorney-General did not

participate in the proceedings before the Supreme Court.

33. The applicant considers that a statement that Article 285d of the

Code of Criminal Procedure is applicable is inevitably a comment on the

merits of the plea of nullity because it was tantamount to saying that

the grounds of nullity were not present, and that the plea was

"manifestly ill-founded" within the meaning of Article 285d para. 1 (2)

of the Code of Criminal Procedure.

34. The Commission recalls that the European Court of Human Rights

has found a violation of the Convention in a case involving the same

limited form of comment by the Attorney-General as in the present case

(Bulut judgment of 22 February 1996, Reports of Judgments and

Decisions, paras. 49, 50).

35. The observations made by Attorney-General in the present case

were in the same form as those in the case of Bulut, and were not

disclosed to the defence. As in that case, the observations enabled

the prosecution to make submissions to the court without the knowledge

of the defence.

36. 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

37. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue

of the passing of a statement to the Supreme Court by the Attorney-

General's office of which the applicant was not aware.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

FEINGOLD v. AUSTRIA

FEINGOLD v. AUSTRIA

LEXI