Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 15701/89

Alexander Wick

against

Austria

REPORT OF THE COMMISSION

(adopted on 10 March 1994)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I: STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . 3

PART II: SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . . 5

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by Mr. Alexander Wick against Austria

on 19 October 1989. It was registered on 26 October 1989 under file

No. 15701/89.

The applicant was represented by Mr. A. Friedberg, lawyer,

Vienna.

The Government of Austria were represented by their Agent,

Mr. Franz Cede.

2. On 30 August 1993 the Commission declared the application

admissible. It then proceeded to carry out its task under

Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

3. The Commission found that the parties had reached a friendly

settlement of the case and on 10 March 1994 it adopted this Report,

which, in accordance with Article 28 para. 2 of the Convention, is

confined to a brief statement of the facts and of the solution reached.

The following members were present when the Report was adopted:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

PART I

STATEMENT OF THE FACTS

4. The applicant is an Austrian citizen, born in 1964 and resident

in Vienna. The applicant's representative before the Commission did

not act for him in the proceedings before the domestic courts. The

facts, as submitted by the parties, may be summarised as follows:

5. On 14 February 1989 the applicant was convicted of robbery by the

Vienna Regional Court (Landesgericht) and sentenced to four years'

imprisonment. He had had an officially appointed lawyer for his trial.

Representation by a lawyer is compulsory in such cases. The appointment

includes preparation of appeal papers.

6. After judgment, which was pronounced immediately, the applicant

and his lawyer asked for extra time to consider appeals. The

applicant's representative states that the question of appeals was

discussed at the end of the trial, and that it was agreed that the

lawyer would initially make the notice of intention to bring a plea of

nullity and an appeal against sentence. The request for time to

consider appeals was granted, and the three day time-limit began to

run. On 15 February 1989 the applicant's lawyer lodged a notice of

intention to appeal against sentence and to make a plea of nullity

against the judgment. In the course of the proceedings before the

Commission the applicant's representative has submitted a copy of a

letter of 15 February 1989 from the then representative to the

applicant in prison, informing the applicant that the lawyer had given

notice of intention to make both the appeal against sentence and, as

a precaution (in case there should be an error on the face of the

judgment when received) a plea of nullity. He added that if the

judgment disclosed no ground of nullity, he would only make the appeal

against sentence.

7. On 17 February 1989 the applicant, who had been detained in

custody after sentencing, was asked by a prison guard whether he wished

to file an appeal. The guard explained to the applicant that there

were two types of appeal, one being a complaint as to the proceedings

(plea of nullity - Nichtigkeitsbeschwerde) and the other being a

complaint about sentence (appeal against sentence - Berufung). The

applicant signed the pre-printed form which had been completed by the

guard and in which he stated his intention to file a plea of nullity

and explicitly waived his rights to other remedies. There were no

consultations between the lawyer and the applicant at this stage.

8. The lawyer received the written reasons for the judgment on

24 February 1989 and, on 8 March 1989, submitted an appeal document in

which he formally made an appeal against sentence and withdrew the plea

of nullity announced on 15 February.

9. On 7 April 1989 the applicant and the guard concerned were

questioned by a judge. The applicant stated that he had not realised

that a lawyer had been appointed for the entirety of the proceedings.

He did not want to change lawyer. He also stated that he had been sent

a copy of the lawyer's appeal document with an explanation of why the

lawyer had withdrawn the plea of nullity. The applicant confirmed that

the lawyer had properly presented the applicant's interests. The

prison guard stated that he invariably tells prisoners briefly about

the difference between a plea of nullity and an appeal against

sentence, and confirmed that the applicant had said "plea of nullity".

The guard confirmed that he had made the deletions in the pre-printed

form. He added that he could not tell whether the applicant had

misunderstood him and made the wrong choice, possibly because he was

worked up as a result of the sentence.

10. On 17 April 1989 the applicant's appeal was rejected by the

Vienna Court of Appeal (Oberlandesgericht). It noted that the

applicant had entered a plea of nullity himself and waived all other

remedies. It also noted that the applicant's properly appointed lawyer

had withdrawn the plea of nullity and made an appeal against sentence.

The court recalled that one of the grounds for rejection of an appeal

in camera was that the person had waived that appeal. The applicant

had waived his rights to an appeal against sentence and such a waiver

was irrevocable. Such a waiver was effective, regardless of the

reasons for its having been made. An officially appointed lawyer, like

a private lawyer, was only able to act where the defendant had not

stated his desires. On the other hand, the withdrawal of the plea of

nullity by the lawyer was effective even against the will of the

defendant.

11. On 12 July 1990 the Minister for Justice gave a written reply to

a parliamentary question concerning the pre-printed form which the

applicant had signed. He stated that, since 7 May 1990, the form was

no longer in use. In particular, he considered that the form was

inadequate in several respects. He referred to the lack of clarity and

to the absence of sufficient information concerning appeals. It was a

particular concern of the Ministry that, although permissible in law,

pre-printed forms should not be used for waivers of remedies. He

underlined that the form was only for use in the case of defendants who

were not represented and reminded the parliamentarians that, as a

result of Article 182 of the Code of Criminal Procedure

(Strafprozeßordnung), very few unrepresented defendants were detained

after the first instance judgment. As the form was not used very

often, its continued use did not appear appropriate.

PART II

SOLUTION REACHED

12. Following the decision on the admissibility of the application,

the Commission placed itself at the disposal of the parties with a view

to securing a friendly settlement in accordance with

Article 28 para. 1 (b) of the Convention and invited the parties to

submit any proposals they wished to make.

13. In accordance with the usual practice, the Secretary, acting on

the Commission's instructions, contacted the parties to explore the

possibilities of reaching a friendly settlement.

14. Following an exchange of correspondence, the Commission

considered the question of a settlement on 4 December 1993, and made

specific settlement proposals. The terms were included in a

Declaration which was returned to the Commission by the Government on

1 February 1994 and by the applicant on 9 February 1994. The

settlement provided as follows:

[Translation]

"Declaration by the parties with a view to a friendly settlement

In connection with Application No. 15701/89 by

Mr. Alexander Wick, the parties, with reference to

Article 28 para. 1 (b) of the European Convention on Human Rights and

to the assistance of the European Commission of Human Rights, declare

as follows:

1. The Government of the Republic of Austria will pay to the

applicant a sum amounting to altogether AS 50,000 as compensation

in respect of any possible claims relating to the present

application. This sum includes AS 30,000 in respect of costs and

expenses incurred before the Commission.

This amount will be paid to the applicant's representative,

Mr. A. Friedberg (Postsparkasse 60 000 - 2369.220) in Vienna.

2. The applicant waives any further claims against the

Republic of Austria relating to the present application."

[German]

"Erklärung der Parteien zur gütlichen Regelung

In der Individualbeschwerde Nr. 15701/89 des Herrn Alexander

Wick, verständigen sich die Parteien unter Bezugnahme auf

Artikel 28 Abs. 1 b der Europäischen Konvention zum Schutze der

Menschenrechte und Grundfreiheiten und unter Mitwirkung der

Europäischen Kommission für Menschenrechte auf die nachstehende

gütliche Regelung:

1. Die österreichische Regierung zahlt dem Beschwerdeführer

als Ausgleich für sämtliche etwaigen Ansprüche im Zusammenhang

mit der vorliegenden Individualbeschwerde einen Gesamtbetrag von

AS 50 000. Dieser Betrag umfasst AS 30 000 hinsichtlich der

Gebühren und Auslagen, die im Rahmen des Verfahrens vor der

Kommission entstanden sind.

Dieser Betrag wird an den Verfahrensbevollmächtigten des

Beschwerdeführers Herrn Dr. A. Friedberg in Wien

(Postsparkasse 60 000 - 2369.220) überwiesen.

2. Der Beschwerdeführer verzichtet auf die Geltendmachung

allfälliger weiterer Forderungen gegen die Republik Österreich

im Zusammenhang mit dem der Beschwerde zugrundeliegenden

Sachverhalt."

15. At its session on 10 March 1994, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

16. For these reasons, the Commission adopted the present Report.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

WICK v. AUSTRIA

WICK v. AUSTRIA

LEXI