KREMZOW v. AUSTRIA
Doc ref: 12350/86 • ECHR ID: 001-45539
Document date: May 20, 1992
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 12350/86
Friedrich Wilhelm KREMZOW
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 20 May 1992)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 19) . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5 - 14). . . . . . . . . . . . . . . .1
C. The present Report
(paras. 15 - 19) . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 20 - 75). . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 20 - 59) . . . . . . . . . . . . . . .4
1. The institution of criminal proceedings
against the applicant
(paras. 20 - 24) . . . . . . . . . . . . . . .4
2. The applicant's trial before the
Court of Assizes
(paras. 25 - 30) . . . . . . . . . . . . . . .4
3. The proceedings before the Supreme Court
(paras. 31 - 59) . . . . . . . . . . . . . . .5
a) Remedies taken by the Parties
(paras. 31 - 34) . . . . . . . . . . . . . . .5
b) The consultation of the Attorney
General's office
(paras. 35 - 38) . . . . . . . . . . . . . . .5
c) Additional evidence
(para. 39) . . . . . . . . . . . . . . . . . .6
d) Draft decision prepared by the
Judge Rapporteur
(paras. 40 - 43) . . . . . . . . . . . . . . .6
e) Summons to the Supreme Court's hearing
(paras. 44 - 48) . . . . . . . . . . . . . . .7
f) The applicant's request for personal
presence at the Supreme Court's hearing
(paras. 49 - 53) . . . . . . . . . . . . . . .8
g) The Supreme Court's hearing and judgment
(paras. 54 - 59) . . . . . . . . . . . . . . .8
B. Relevant domestic law
(paras. 60 - 75) . . . . . . . . . . . . . . 10
1. Plea of nullity
(paras. 60 - 66) . . . . . . . . . . . . . . 10
2. Appeal against sentence
(paras. 67 - 69) . . . . . . . . . . . . . . 11
3. Supreme Court's Rules of Procedure
(paras. 70 - 75) . . . . . . . . . . . . . . 12
III. OPINION OF THE COMMISSION
(paras. 76 - 154) . . . . . . . . . . . . . . . . 14
A. Complaints declared admissible
(para. 76) . . . . . . . . . . . . . . . . . 14
B. Points at issue
(para. 77) . . . . . . . . . . . . . . . . . 14
C. Personal appearance at the hearing
(paras. 78 - 106). . . . . . . . . . . . . . 14
1. Article 6 paras. 1 and 3 (c) of
the Convention
(paras. 78 - 102). . . . . . . . . . . . . . 14
a) Presence at the hearing of the pleas of
nullity
(paras. 82 - 89) . . . . . . . . . . . . . . 15
b) Presence at the hearing of the appeals
against sentence
(paras. 90 - 101). . . . . . . . . . . . . . 16
Conclusion (para. 102) . . . . . . . . . . . 19
2. Article 14 in conjunction with Article 6
of the Convention
(paras. 103 - 105) . . . . . . . . . . . . . 19
Conclusion (para. 106) . . . . . . . . . . . 19
D. Fairness of the Supreme Court's proceedings
(paras. 107 - 135) . . . . . . . . . . . . . 19
1. Preparation of the judgment prior to
the Supreme Court's hearing
(paras. 107 - 110) . . . . . . . . . . . . . 19
Conclusion (para. 111) . . . . . . . . . . . 20
2. Opportunity for the defence to obtain, and
to comment on, the Attorney General's
position paper
(paras. 112 - 121) . . . . . . . . . . . . . 20
Conclusion (para. 122) . . . . . . . . . . . 22
3. Other complaints
(paras. 123 - 134) . . . . . . . . . . . . . 22
Conclusion (para. 135) . . . . . . . . . . . 24
E. Effective domestic remedies
(paras. 136 - 140) . . . . . . . . . . . . . 25
Conclusion (para. 141) . . . . . . . . . . . 25
F. Detention as a convicted prisoner
(paras. 142 - 146) . . . . . . . . . . . . . 25
Conclusion (para. 147) . . . . . . . . . . . 26
G. Recapitulation
(paras. 148 - 154) . . . . . . . . . . . . . 26
Dissenting opinion of Mr. H. Danelius, joined by
MM. C.A. Nørgaard and G. Jörundsson . . . . . . . . . . . . 27
Dissenting opinion by MM. S. Trechsel, H. Schermers and
A.V. Almeida Ribeiro. . . . . . . . . . . . . . . . . . . . 28
APPENDIX I : HISTORY OF THE PROCEEDINGS BEFORE THE
COMMISSION. . . . . . . . . . . . . . . 29
APPENDIX II : DECISION AS TO THE ADMISSIBILITY. . . . 31
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, an Austrian citizen born in 1938 and former judge,
is currently serving a life sentence for murder in Vienna. He is
represented before the Commission by Mr. Wilfried Ludwig Weh, a lawyer
practising in Bregenz.
3. The application is directed against Austria whose Government are
represented by their Agent, Ambassador Helmut Türk, Deputy Secretary
General and Legal Counsel of the Federal Ministry of Foreign Affairs.
4. The application, in so far as declared admissible, relates to
criminal appeal proceedings before the Austrian Supreme Court in which
the applicant's conviction of murder was confirmed and his sentence
increased. He complains that he was not allowed to be present in
person at the Supreme Court's hearing (Article 6 paras. 1 and 3 (c) in
conjunction with Article 14 of the Convention) and that the Supreme
Court's proceedings were unfair (Article 6 para. 1) in that its
judgment was prepared and communicated to the Attorney General before
the hearing and in that he did not have sufficient time to prepare his
defence (Article 6 para. 3 (b)). The applicant further alleges
violations of Article 5 in conjunction with Article 14, and of
Article 13 of the Convention.
B. THE PROCEEDINGS
5. The application was introduced on 1 August and registered on
22 August 1986.
6. On 19 January 1989 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit before 7 April 1989 their observations in writing on its
admissibility and merits.
7. Following an extension of this time-limit, the Government
submitted their observations on 23 May 1989. The applicant was
requested to reply thereto before 10 July 1989. At his request, the
time-limit was extended and he submitted his observations on
18 August 1989.
8. On 2 April 1990 the Commission decided to invite the parties to
submit further observations in writing before 15 June 1990 and also to
submit observations orally at a hearing on the admissibility and merits
of the case.
9. After both parties had been granted extensions of the above time-
limit, the applicant submitted additional observations on 29 June 1990
and the Government on 17 July 1990.
10. The oral hearing took place on 5 September 1990. The Government
were represented by their Agent, Mr. Helmut Türk, who was assisted by
Mr. Wolf Okresek of the Federal Chancellery and Mr. Gert Felsenstein
of the Federal Ministry of Justice. The applicant was represented by
his counsel, Mr. Wilfried Ludwig Weh, assisted by Mrs. Eva Weh.
11. On the same day the Commission declared the applicant's
complaints relating to the Supreme Court's proceedings admissible while
rejecting the remaining complaints.
12. The text of the decision on admissibility was approved by the
Commission on 12 October 1990. The parties were invited to submit
supplementary observations on the merits before 3 December 1990.
13. The Government submitted such observations on 4 December 1990,
and the applicant, after having been granted an extension of the time-
limit, on 15 February 1991.
14. 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
15. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. C. L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
A. V. ALMEIDA RIBEIRO
16. The text of this Report was adopted on 20 May 1992 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
17. 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.
18. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
19. 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
1. The institution of the criminal proceedings against the applicant
20. The applicant was a judge in the Austrian courts from 1964 to
1978 when he retired for reasons of health. He then worked as
consultant of various practising lawyers in the area of Vienna,
including Mr. P.
21. On 16 December 1982 the applicant voluntarily presented himself
before the Regional Court (Kreisgericht) of Korneuburg and confessed
to having killed P.
22. Criminal proceedings were instituted and the applicant has
remained in detention ever since.
23. Immediately following his arrest, the applicant was taken into
psychiatric treatment and observation in view of a danger of his
committing suicide and of his overall mental condition. After a period
in the psychiatric hospital of Vienna he was detained in the
Mittersteig special institution for mentally deranged offenders.
24. On 30 November 1983 the public prosecutor filed an indictment
charging the applicant with murder under Section 75 of the Penal Code
(Strafgesetzbuch) and with illegal possession of a firearm under
Section 36 of the Firearms Act (Waffengesetz) as well as a number of
further offences. It was alleged that dire financial straits had led
the applicant to defraud P. and that the homicide had been motivated
by a desire to cover up the fraud. The prosecution requested that the
applicant be committed to an institution for mentally abnormal
criminals (Anstalt für geistig abnorme Rechtsbrecher) under Section 21
of the Penal Code.
2. The applicant's trial before the Court of Assizes
25. On 13 June 1984 the applicant's trial (Hauptverhandlung)
commenced before a Court of Assizes of the Regional Court of Korneuburg
sitting with a jury (Geschworenengericht). The applicant was
represented by an official defence counsel (Pflichtverteidiger), the
court having refused the applicant's request based on
Article 6 para. 3 (c) of the Convention to defend himself in person.
26. At the first session of the trial the applicant retracted his
confessions which he said were the product of a psychotic aberration.
He now asserted that P. had committed suicide in his presence. The
trial was discontinued and referred back to the investigating judge
with a view to clarifying the facts as now alleged by the applicant.
27. Following supplementary investigations by the investigating
judge, a new trial began on 5 November 1984 before the Court of
Assizes.
28. The applicant states that he and his counsel disagreed on trial
strategy and that no relation of confidence existed between them.
29. On 18 December 1984 the jury found the applicant guilty of murder
and unlawful possession of a firearm. The charges of fraud had earlier
been dropped by the prosecution. The jury found that the applicant did
not lack criminal responsibility and, in their handwritten statement
of reasons (Niederschrift der Geschworenen), expressed the opinion that
"the motive remains unknown, too many possibilities".
30. The bench, sitting with the jury, set the applicant's sentence
at twenty years' imprisonment, the maximum determinate sentence
possible under Austrian law in a case of murder. It ordered him to be
committed to an institution for mentally abnormal criminals.
3. The proceedings before the Supreme Court
a) Remedies taken by the Parties
31. The applicant filed a plea of nullity (Nichtigkeitsbeschwerde)
with the Supreme Court (Oberster Gerichtshof) complaining that he had
been denied the right to defend himself and that the trial had not been
fair.
32. The applicant's mother and wife filed a further plea of nullity
and an appeal (Berufung) with the Supreme Court complaining of the
length of the sentence and the commitment of the applicant to an
institution for mentally abnormal criminals.
33. The public prosecutor appealed against the sentence and asked
that a life sentence be imposed because of the "cold blooded planning
and particular insidiousness of the applicant's offence" ("kaltblütige
Planung und besondere Heimtücke der Tat"). A further appeal was filed
by the private party, Mr. R. P., the son of Mr. P.
34. On 26 March 1985 the applicant, in observations in reply
(Gegenausführung) to the prosecution's appeal, claimed that the
prosecution's above new assertion was incompatible with the psychiatric
expertise according to which his mental capacity to act with insight
had been considerably reduced.
b) The consultation of the Attorney General's office
35. On 2 May 1985 the Supreme Court informed the Attorney General's
office (Generalprokuratur) of the remedies taken in the applicant's
case and transmitted the file. According to the transmission note the
file included the following documents: the judgment of the Court of
Assizes, the defendant's plea of nullity, the defendant's mother's and
wife's plea of nullity and appeal, the public prosecutor's appeal and
the private party's appeal. The note mentioned the Judge Rapporteur's
name ("BE: Dr. Steininger") and was signed by him.
36. On 3 May 1985 the Attorney General's office acknowledged receipt
of the file including appendices by a stamp on the transmission note
which was signed by an agent of the Attorney General's office.
37. The Attorney General's position paper ("croquis") dated
24 July 1985 was received by the Supreme Court on 2 August 1985. It
dealt in detail, on 49 pages, with the various grounds of nullity
invoked by the applicant and his mother and wife in their respective
pleas of nullity. The Attorney General expressed the view that the
Supreme Court should hold a public hearing and reject these pleas. He
did not make any submissions regarding the various appeals against the
sentence.
38. On 18 September 1985 the applicant, on 2 October 1985 his
official defence counsel applied for the communication of the Attorney
General's position paper. However, these requests were not acted upon.
The position paper was served on counsel only on 9 June 1986 (see
para. 46 below).
c) Additional evidence
39. On 31 December 1985 the private party Mr. R. P. submitted a
number of missing diary-sheets of the victim P. to the Supreme Court.
During the trial the applicant had repeatedly requested the production
of missing parts of Mr. P.'s diary as evidence that P. had intended to
commit suicide. Subsequently he had also introduced a civil action
against Mr. R. P. to produce those documents. After having been
informed in connection with the civil case that parts of the diary had
been submitted to the Supreme Court, the applicant on 22 January 1986
requested the Regional Court of Korneuburg to order a search of the
home of Mr. R. P. whom he suspected of withholding further relevant
documents. This request was rejected, but copies of the diary-sheets
submitted to the Supreme Court were served on the applicant through the
Regional Court.
d) Draft decision prepared by the Judge Rapporteur
40. Prior to the fixing of the date of the Supreme Court's hearing,
the Judge Rapporteur prepared a draft judgment which was included in
the Supreme Court's file as Document No. 19. The draft was apparently
revised. Parts were written on different typewriters and a number of
pages added or replaced. On this draft the Rapporteur generally
followed the line adopted in the Attorney General's position paper and
proposed to reject the various pleas of nullity. The draft also dealt
with the question of the diary-sheets.
41. Several years later (in an official statement submitted on
19 June 1989, in connection with disciplinary proceedings against the
applicant) the Judge Rapporteur observed:
(German)
"Daß die Stellungnahme der Generalprokuratur zu den
Nichtigkeitsbeschwerden des Angeklagten und der übrigen
Rechtsmittelwerber keineswegs in toto der hg Entscheidung über
diese Rechtsmittel zugrunde gelegt wurde, sondern von mir als
Berichterstatter ein umfangreicher eigenständiger
Entscheidungsentwurf ausgearbeitet wurde, ergibt sich aus meinem
Urteilsantrag ... . Soweit der Antragsteller ... eine Äußerung
des damaligen Senatsvorsitzenden ins Treffen führt, so hat sich
diese (...) offensichtlich eben darauf bezogen, daß ein
eigenständiger umfassender Entscheidungsentwurf vom
Berichterstatter verfaßt wird, zumal darüber mehrfach in den
Sitzungen des Senates diskutiert wurde."
(Translation)
"My proposal for the judgment shows that the observations of the
Attorney General's office on the pleas of nullity brought by the
accused and the other appellants were by no means used in their
entirety as the basis for the Supreme Court's decision on these
remedies, but that in my capacity as Judge Rapporteur I prepared
an extensive, original draft judgment... . In so far as the
applicant quotes comments by the then President of the Chamber,
..., they obviously refer (...) to the very fact that an
original, extensive draft judgment is prepared by the Judge
Rapporteur, particularly since the matter was discussed more than
once by the Chamber."
42. The applicant observes that there is no trace of such discussions
in the Supreme Court's file, as would have been required under
Section 23 of the Code of Criminal Procedure (Strafprozessordnung) and
Section 65 para. 2 of the Supreme Court's Rules of Procedure
(Geschäftsordnung). He further concludes from the Judge Rapporteur's
above statement that there were deliberations on the merits of his case
in the Supreme Court already before the public hearing.
43. The Government do not deny that preliminary deliberations
(Vorberatungen) took place between the members of the competent Supreme
Court Chamber prior to the hearing. It appears that statements by
other members of the Chamber concerning the draft decision were taken
to the file as Document No. 22, i.e. in the period between the summons
and the public hearing.
e) Summons to the Supreme Court's hearing
44. On 4 June 1986 the Supreme Court set the hearing of the pleas of
nullity and the appeals for 2 July 1986. The summons was sent to the
parties on 9 June 1986. The Attorney General's office acknowledged
receipt on 10 June 1986, the applicant received it on 17 June 1986.
45. The notification of the date of the hearing provided that at the
hearing of the pleas of nullity the applicant, being incarcerated,
could only appear through his official defence counsel according to
Sections 286 para. 2 and 344 of the Code of Criminal Procedure. At the
hearing of the appeals he would not be brought to the court as the
conditions of Section 296 para. 3 of the Code of Criminal Procedure
were not met.
46. The notification also mentioned the documents to be transmitted
to the various parties. It was ordered that the Attorney General's
position paper should be sent to the applicant's official defence
counsel and to the lawyer of his wife and mother. The Attorney
General's office was requested to submit a new extract from the
applicant's criminal record.
47. The applicant claims that the whole of the Supreme Court's file,
including the draft decision prepared by the Judge Rapporteur, was
transmitted to the Attorney General's office together with the summons.
The relevant passage read: "Der Generalprokuratur zur Kenntnis zu
Gs 948/85" ("For the attention of the Attorney General's office under
file No. Gs 948/85"). In the subsequent disciplinary proceedings the
corresponding part of the summons of 19 October 1988 read: "Der
Generalprokuratur zu Gd 58/88 zur Kenntnis (ohne Entwurf des BE
[= Berichterstatters])" ("For the attention of the Attorney General's
office under file No. Gd 58/88 (without draft decision of the Judge
Rapporteur))".
48. The Government submit that only the summons was sent to the
General Attorney's office and that the Supreme Court's file, and in
particular the draft decision prepared by the Judge Rapporteur, was not
simultaneously transmitted to that office. They refer to the regular
practice of the Supreme Court and Section 60 para. 3 of the latter's
Rules of Procedure (see para. 72 below).
f) The applicant's request for personal presence at the Supreme
Court's hearing
49. On 19 June 1986 the applicant petitioned the Supreme Court to be
allowed to attend the hearing of the pleas of nullity in person, a
right accorded to defendants who are not incarcerated. He invoked
Articles 6 and 14 of the Convention and observed that in 1986 alone he
had been granted permission thirty times to appear personally before
various courts and administrative authorities in Vienna. He relied on
his right to defend himself in person, as guaranteed in
Article 6 para. 3 (c), and observed that he had consistently objected
to his being represented by official defence counsel and that under
Section 296 para. 3 of the Code of Criminal Procedure detained
defendants were entitled to be brought to a hearing on appeal against
sentence.
50. At the same time the applicant observed that no decision had so
far been taken on his request to get a copy of the Attorney General's
"croquis" and that a procedure whereby the Attorney General, but not
the defence, was informed of the views of the members of the Supreme
Court on the various remedies would violate the principle of equality
of arms stipulated in Article 6 of the Convention.
51. On 25 June 1986 the Supreme Court rejected the applicant's
petition to be brought to the hearing on the pleas of nullity and his
motion to discover the "croquis" of the Attorney General and to inspect
the case-file. The Supreme Court noted that the applicant had not
applied to be brought to the hearing of the appeals. It had no doubts
concerning the constitutionality and conformity with Article 6 of the
Convention of Section 286 para. 2 of the Code of Criminal Procedure
which stipulates that an accused in detention has no right to appear
personally at the hearing of a plea of nullity, but only a right to be
represented by counsel. The Supreme Court mentioned that the
proceedings concerning the appeal and those concerning pleas of nullity
differed and therefore could not be compared.
52. In the same decision the Supreme Court stated that the applicant
personally was not entitled to receive a copy of the Attorney General's
"croquis". Article 6 of the Convention had been observed because a
copy of this document had been made available to his official defence
counsel.
53. The applicant's defence counsel was notified of this decision at
the hearing on 2 July 1986.
g) The Supreme Court's hearing and judgment
54. The Supreme Court's hearing of the pleas of nullity and appeals
was held on 2 July 1986 in the absence of the applicant, the latter
being represented by his official defence counsel.
55. The hearing was opened at 9h and closed at 11h25. The court
heard submissions of the applicant's official defence counsel, the
lawyer of his wife and mother, the lawyer of the private party, and a
representative of the Attorney General's office. According to
affidavits submitted by the applicant the subsequent deliberations of
the court lasted about half an hour, the reading of the judgment about
five minutes.
56. By this judgment, the Supreme Court rejected the applicant's and
his relatives' pleas of nullity. It allowed both the public
prosecutor's appeal and in part the appeal of the applicant's
relatives, sentencing the applicant to life imprisonment and nullifying
the commitment to an institution for mentally abnormal criminals, the
applicant thus being required to serve the life sentence in prison.
57. The Supreme Court evaluated the aggravating and mitigating
circumstances discussed by the trial court and found that it had
incorrectly refused to recognise the applicant's self-surrender as a
mitigating circumstance under Section 34 para. 16 of the Penal Code.
It then continued:
(German)
"Bei der Ausmessung der verwirkten Strafe hat das Erstgericht die
besondere Schwere der personalen Täterschuld des Angeklagten in
Verbindung mit dem objektiven Gewicht der verschuldeten
Rechtsgutverletzung, wie sie der (vorsätzlichen) Tötung eines
Menschen unter den gegebenen Umständen innewohnt, zu wenig
berücksichtigt. Manifestiert sich doch in der heimtückischen,
nachgeradezu einer 'Liquidierung' des ahnungslosen und dem
Angeklagten vertrauenden Mordopfers gleichkommenden Tatbegehung,
um die Aufdeckung eigener finanzieller Verfehlungen des
Angeklagten zu verhindern, mithin aus verwerflichen Motiven, eine
derart negative Einstellung des Rechtsbrechers (im Sinn einer
niedrigen Gesinnung) und damit ein solcher Grad an Schuld, daß
die Verhängung einer zeitlichen Freiheitsstrafe ... nach Lage des
Falles nicht (mehr) gerechtfertigt ist. Daß der Angeklagte zur
Tatzeit sich in einem abnormen Geisteszustand befand, unter
dessen Einfluß er die Mordtat beging, fällt demgegenüber nicht
so sehr ins Gewicht und vermag daher die übrigen, den Angeklagten
belastenden Komponenten seiner Strafzumessungsschuld nicht
aufzuwiegen. Die schuldangemessene Reaktion auf das Tatverhalten
des Angeklagten kann daher nur in der Verhängung einer
lebenslangen Freiheitsstrafe bestehen."
(Translation)
"The court of first instance failed, in assessing the sentence,
to make adequate allowance for the special gravity of the
accused's personal guilt and the objective weight of the offence
involved in (intentionally) killing a human being in the
particular circumstances of this case. After all, this
treacherous crime, amounting in fact to 'liquidation' of the
unsuspecting victim, who fully trusted the accused, and committed
with the reprehensible intention of forestalling revelation of
his own financial misdeeds, reflects such a negative attitude
(i.e. such a debased outlook) on the perpetrator's part, and such
a degree of guilt, that the imposition of a limited prison
sentence ... no longer seems justified in the circumstances of
the case. The fact that the accused committed the crime in an
abnormal mental state and under its influence, is in itself less
important, and cannot counter-balance the factors which tell
against him in determining the sentence. The only sentence
appropriate to the crime and to the accused's guilt is thus life
imprisonment."
58. The original (Urschrift) of the Supreme Court's judgment shows
that the rejection of the pleas of nullity was literally based on the
Judge Rapporteur's draft decision prepared before the Supreme Court's
hearing. The applicant infers from this that the submissions of the
defence at that hearing were not at all taken into account. According
to him the judgment was a replica of the Attorney General's position
paper.
59. It appears that the applicant is still detained in the
Mittersteig special institution for mentally deranged offenders.
B. RELEVANT DOMESTIC LAW
1. Plea of nullity
60. First instance judgments rendered by Chambers of a Regional Court
can be challenged by a plea of nullity (Nichtigkeitsbeschwerde) to the
Supreme Court on specific grounds enumerated in the Code of Criminal
Procedure (Section 281 para. 1 and, as regards Assize Court judgments,
Section 345 para. 1). The grounds in question include procedural
defects and misapplication of the substantive criminal law in the
finding of guilt and the determination of the sentence. In principle
they do not relate to the evaluation of the evidence by the first
instance court and new facts and evidence cannot be taken into account.
The Supreme Court is bound by the facts and evidence established in the
first instance judgment unless it finds a nullity due to a defect in
the reasoning such as absence of reasons, insufficient reasons or
reasons which are contradicted by the contents of the file.
61. The nullity proceedings against Assize Court judgments differ
from other proceedings in that the latter grounds of nullity are not
available concerning the finding of guilt since the jury's verdict
(Wahrspruch) is not reasoned. The judgment only contains the questions
put to the jury and their answers ("yes" or "no"). Summary reasons are
set out in a memorandum (Niederschrift der Geschworenen) annexed to the
transcript of the trial which as such cannot be reviewed by the Supreme
Court.
62. The Supreme Court's task in such cases is mainly to control the
acts of the bench and the Presiding Judge of the Assize Court (in
particular whether the conduct of the trial has complied with
fundamental procedural principles, whether the right questions have
been put and the right directions been given to the jury). In so far
as the jury is concerned, the Supreme Court may only verify whether it
has not given unclear, incomplete or contradictory answers to the
questions. As in other cases the Supreme Court also supervises the
correct application of the criminal law, but in doing so is bound by
the jury's findings as to the facts.
63. As regards the procedure, the general provisions on remedies in
criminal law are applicable. The time-limit for remedies and
observations in reply thereto is four weeks from receipt of the
judgment if the trial has lasted more than five days
(Section 285 paras. 1 and 3 of the Code of Criminal Procedure).
64. In certain cases the Supreme Court may reject a plea of nullity
without a public hearing (cf. Section 285 c of the Code of Criminal
Procedure). In all other cases there will be a public hearing which
may also be combined with a public hearing on appeals against sentence
(see below).
65. Concerning the hearing on pleas of nullity Section 286 of the
Code of Criminal Procedure provides:
(German)
"1. Wird ein Gerichtstag zur öffentlichen Verhandlung der Sache
anberaumt, so ist die Vorladung des Angeklagten ... vorzunehmen,
... .
2. Ist der Angeklagte verhaftet, so wird er vom Gerichtstage mit
dem Beisatz in Kenntnis gesetzt, daß er nur durch einen
Verteidiger erscheinen könne."
(Translation)
"1. When the date of the public hearing is being fixed, the
accused ... shall be summoned ... .
2. If the accused is under arrest, the notice of the hearing
given to him shall mention that he may only appear through
counsel."
66. However, if the hearing is a combined one on pleas of nullity and
appeals against sentence, an accused who is personally present for the
latter purpose may also exercise his rights concerning the pleas of
nullity. In particular he will be given the last word.
2. Appeal against sentence
67. While legal defects of the sentencing procedure may also form the
subject of a plea of nullity, the sentence as such can only be
challenged by way of an appeal against sentence (Berufung). It may
concern both points of law (in particular whether mitigating or
aggravating circumstances have correctly been taken into account) and
considerations relating to the assessment of the sentence. In this
respect the appellate court is bound by the legal qualification of the
offence in the finding of guilt and it must limit its examination to
the grounds invoked in the appeal (cf. Section 295 para. 1 of the Code
of Criminal Procedure).
68. As regards the procedure, the same time-limits apply for the
filing of appeals as for the filing of pleas of nullity (cf. para. 63
above). In certain cases of formal defects the appeal may be rejected
by the Supreme Court without an oral hearing (cf. Section 296 para. 2
of the Code of Criminal Procedure), however where the appeal is
examined as to its substance a public hearing must be held.
69. Concerning the personal appearance of the accused at such
hearings, Section 296 para. 3, second sentence of the Code of Criminal
Procedure provided at the relevant time:
(German)
"Für die Anberaumung und Durchführung des Gerichtstages gelten
die Bestimmungen der §§ 286 und 287 dem Sinne nach mit der
Maßgabe, daß der nicht verhaftete Angeklagte stets vorzuladen und
auch die Vorführung des verhafteten Angeklagten zu veranlassen
ist, wenn er dies in seiner Berufung oder Gegenausführung
beantragt hat oder die Vorführung sonst im Interesse der
Rechtspflege geboten erscheint."
(Translation)
"The provisions of Sections 286 and 287 are applicable, mutatis
mutandis, to the fixing of the date and the holding of the public
hearing subject to the proviso that an accused who is not
detained shall always be summoned and that an accused who is
detained shall also 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."
3. Supreme Court's Rules of Procedure
70. The Supreme Court's internal procedure is regulated in the
Supreme Court Act (OGH-Gesetz) and in the Supreme Court's Rules of
Procedure (Geschäftsordnung) adopted as an internal instrument
(Verwaltungsverordnung) according to Section 22 of this Act. The Rules
of Procedure have not been published.
71. According to the Supreme Court Act the Supreme Court sits in
chambers composed of five members, one of them acting as Presiding
Judge, one of them as Judge Rapporteur (Sections 5 and 6,
paras. 1 and 2). They are determined by the annual assignment of
functions (Section 13 para. 1). Section 20, last sentence, provides
that the name of the Judge Rapporteur shall not be disclosed to the
parties.
72. Section 60 of the Supreme Court's Rules of Procedure reads as
follows:
(German)
"(2) ... ist ... der Akt ... dem nach der Geschäftsverteilung
bestimmten Berichterstatter vorzulegen.
(3) Ist der Akt in der Folge der Generalprokuratur zur Äußerung
oder Antragstellung oder über ihr Ersuchen vor Erledigung der
Sache zur Einsicht zuzuleiten, sind Aktenstücke, aus denen auf
den Inhalt der vom Obersten Gerichtshof zu fällenden Entscheidung
oder den Gang der Beratung geschlossen werden könnte
(Erledigungsentwurf, Äußerungen von Senatsmitgliedern udgl.)
zurückzuhalten, soweit nicht eine gegenteilige richterliche
Anordnung vorliegt.
(4) Nach Rücklangen des Aktes von der Generalprokuratur
übermittelt der Berichterstatter mit dem Erledigungsentwurf die
Akten dem Senatsvorsitzenden zur weiteren Veranlassung.
...
(6) Bei Anordnung eines Gerichtstages ist der Generalprokuratur
nur das Ausschreibungsformular zur Kenntnisnahme des Termines zu
übermitteln. Bei dieser Gelegenheit findet eine Aktenübersendung
nur über richterliche Anordnung statt.
(7) Soweit die Generalprokuratur ausgearbeitete Stellungnahmen
abgegeben hat, sind Gleichschriften hievon spätestens anläßlich
der Anberaumung des Gerichtstages den anderen am Verfahren über
die Nichtigkeitsbeschwerde beteiligten Parteien zuzustellen,
soweit nicht eine gegenteilige richterliche Anordnung vorliegt."
(Translation)
"(2) ... the file has to be submitted to the Judge Rapporteur
competent according to the assignment of cases.
(3) If the file is subsequently transmitted to the Attorney
General's office either for comments or motions or at their
request for inspection before a decision, all parts of the file
must be withheld from which conclusions might be drawn as to the
contents of the decision to be issued by the Supreme Court or as
to the court's deliberations (draft decision of the Judge
Rapporteur, comments by members of the Chamber or similar notes),
unless there is a judicial order to the contrary.
(4) When the Attorney General's office has returned the file the
Judge Rapporteur transmits it together with his draft decision
to the Presiding Judge for further action.
...
(6) When a public hearing is fixed only the summons form is sent
to the Attorney General's office for information. On this
occasion the file is being transmitted only if there is a
judicial order to this effect.
(7) If the Attorney General has submitted a position paper,
copies thereof have to be served on the other parties to the
nullity proceedings, at the latest when they are notified of the
public hearing, unless there is a judicial order to the
contrary."
73. According to Section 62 para. 1 it is the Judge Rapporteur who
applies for the fixing of the date of the public hearing.
74. Section 65 para. 2 provides that a record shall be prepared
concerning every oral deliberation and vote. This record can be kept
confidential in cases provided by law.
75. After the chamber's vote on the decision either the Judge
Rapporteur or that member of the chamber whose draft was adopted has
to draw up the reasoning of the Supreme Court's decision
(Section 65 para. 4). The Presiding Judge or his substitute, but not
the Judge Rapporteur, must approve the text before it is sent out
(Section 65 para. 8).
III. OPINION OF THE COMMISSION
A. COMPLAINTS DECLARED ADMISSIBLE
76. The Commission has declared admissible the applicant's complaints
that, in criminal appeal proceedings before the Supreme Court, he was
not allowed to be present in person at the hearing; that the
proceedings were unfair in that the judgment was prepared and
communicated to the Attorney General before the hearing and that he was
placed at a disadvantage in comparison to the Attorney General; that
he did not have sufficient time to prepare his defence; that the
Supreme Court's power of review was too narrow; and that he had been
unlawfully sentenced to life imprisonment.
B. POINTS AT ISSUE
77. The Commission must accordingly examine:
- whether there has been a violation of Article 6 paras. 1 and
3 (c) (Art. 6-1, 6-3-c) of the Convention in that the applicant
was not allowed to be personally present at the Supreme Court's
hearing;
- whether there has been a violation of Article 14 in conjunction
with Article 6 (Art. 14+6) of the Convention in that the
applicant was treated differently from an accused at liberty with
regard to personal appearance at the hearing;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention in that the Supreme Court's
judgment was prepared and discussed in court prior to the
hearing of the applicant's case;
- whether there has been a violation of Article 6 paras. 1 and
3 (b) (Art. 6-1, 6-3-b) of the Convention in that the applicant
was not given sufficient opportunities to obtain, and comment on,
the Attorney General's position paper;
- whether there has been a violation of Article 6 (Art. 6) of the
Convention in other respects concerning the fairness of the
Supreme Court's proceedings;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention as regards the scope of the Supreme Court's powers of
review;
- whether there has been a violation of Article 5 in conjunction
with Article 14 (Art. 5+14) of the Convention, as regards the
applicant's sentence.
C. PERSONAL APPEARANCE AT THE HEARING
1. Article 6 paras. 1 and 3 (c) of the Convention
78. The first sentence of Article 6 para. 1 (Art. 6-1) of the
Convention reads 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".
79. Article 6 para. 3 (c) (Art. 6-3-c) reads as follows:
"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 or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require".
80. The applicant complains under these provisions that he was not
allowed to be present and to defend himself in person at the Supreme
Court's hearing on 2 July 1986.
81. The Commission recalls that Article 6 (Art. 6) is applicable to
proceedings in second instance (cf. Eur. Court H.R., Ekbatani judgment
of 26 May 1988, Series A no. 134, p. 12, para. 24; Borgers judgment of
30 October 1991, Series A no. 214-B). In the present case the hearing
before the Supreme Court concerned various pleas of nullity and appeals
against sentence. Austrian law distinguishes between these two
categories of remedies as regards the defendant's right to be present.
a) Presence at the hearing of the pleas of nullity
82. The applicant claims that he should have been allowed to be
present at the hearing of the pleas of nullity in order to ensure his
right to defend himself in person, which is guaranteed by Article 6
para. 3 (c) (Art. 6-3-c) of the Convention. His presence would have
been all the more necessary as in his submission the Supreme Court
considered new evidence (diary-sheets and cheques). In these
circumstances it would have been required, under Article 6 para. 1
(Art. 6-1), to allow him to comment on this evidence.
83. The Government deny that the Supreme Court considered any new
evidence. In their submission the hearing of the pleas of nullity was
legally limited to the examination of points of law. The Convention
does not require the personal presence of the accused in criminal
appeal proceedings which concern only questions of law. Section 286
of the Code of Criminal Procedure according to which an accused who is
detained cannot personally appear at the hearing of pleas of nullity
therefore does not infringe Article 6 (Art. 6). The rights of defence
are sufficiently protected by representation through counsel which
constitutes a legal requirement in these proceedings.
84. The Commission notes that the applicant's exclusion from the
hearing of the pleas of nullity was based on Section 286 of the Code
of Criminal Procedure. As the hearing was combined with the hearing
of the appeals against sentence, the applicant could have been present
only if he had been admitted for the appeal hearing. In that case he
could also have been heard on issues of nullity.
85. In the Helmers judgment of 29 October 1991 (Series A no. 212-A,
para. 36) the European Court of Human Rights stated inter alia that
"... even where a court of appeal has jurisdiction to review the case
both as to facts and as to law, the Court cannot find that Article 6
(Art. 6) always requires a right to a public hearing irrespective of
the nature of the issues to be decided ... . Provided a public hearing
has been held at first instance, the absence of such a hearing before
a second or third instance may accordingly be justified by the special
features of the proceedings at issue. Thus ... proceedings involving
only questions of law, as opposed to questions of fact, may comply with
the requirements of Article 6 (Art. 6), although the appellant was not
given an opportunity of being heard in person by the appeal or
cassation court".
86. The above considerations concerned a case in which no public
appeal hearing was held at all, while in the present case a hearing was
in fact held in the presence of the applicant's counsel. The
Commission agrees with the Government that in these circumstances the
personal presence of the applicant at the hearing of the plea of
nullity was not required in so far as it concerned only points of law.
87. However, the examination of a plea of nullity may also involve
facts and evidence of such a nature that they require a personal
hearing of the accused. In this respect the Court has held in the
Kamasinski judgment of 19 December 1989 (Series A no. 168, p. 43,
para. 102) that: "It is an inherent part of a 'fair hearing' in
criminal proceedings as guaranteed by Article 6 para. 1 (Art. 6-1) that
the defendant should be given an opportunity to comment on evidence
obtained in regard to disputed facts even if the facts relate to a
point of procedure rather than the alleged offence as such". In that
case the Court found a violation of Article 6 para. 1 (Art. 6-1)
because the applicant had not been given an opportunity to comment on
evidence obtained by the Supreme Court by virtue of Section 285 f of
the Austrian Code of Criminal Procedure in relation to a plea of
nullity.
88. The applicant alleges that Section 285 f was also applied in the
present case in that the Supreme Court inspected cheques and certain
parts of the victim's diary. The Commission finds no indication that
during the examination of his pleas of nullity any order was made by
the Supreme Court under this Section. That cheques were examined by
the Supreme Court is contested by the Government and the Commission
considers that the applicant has not sufficiently substantiated his
allegations in this respect. The diary-sheets were transmitted to the
applicant before the Supreme Court's hearing and he could submit
observations. In view of the nature of the evidence the Commission
finds it doubtful whether Article 6 (Art. 6) required the applicant to
be allowed to do so orally in person.
89. However, in view of its conclusions with regard to the
examination of the appeals against sentence (see item b) below), the
Commission does not find it necessary to express an opinion on whether
the exclusion of the applicant from personal appearance at the
examination of the pleas of nullity amounted to a violation of
Article 6 (Art. 6) of the Convention.
b) Presence at the hearing of the appeals against sentence
90. The applicant claims that, in his application to be brought to
the Supreme Court's hearing of the pleas of nullity, he also referred
to the appeals from sentence. In any event, for the hearing of those
appeals the personal appearance of the accused could also be ordered
ex officio if that appeared necessary in the interest of justice, and
in the present case the interest of justice required his personal
presence.
91. The hearing concerned inter alia the request by the prosecution
to raise his sentence from twenty years' imprisonment to a life
sentence. In this context it was necessary for the Supreme Court to
assess his personality. The reasons of the Supreme Court's judgment
show that it made assumptions concerning the subjective elements of the
offence which were not covered by the findings the jury made in the
first instance proceedings. Thus the Supreme Court assumed as the
applicant's motive an intention to cover up financial offences, and it
also found a particularly base state of mind.
92. The Government submit that the personal presence of the accused
was not required because only questions of law were at issue also as
regards the hearing of the appeals from sentence. No new facts were
established in this context by the Supreme Court and no new assessment
of the applicant's personality was made. The reasons on which the
Supreme Court relied were all taken from the earlier file.
93. The Government point out that the applicant would have had a
right to be brought before the Supreme Court if he had made an
application to this effect. This was expressly provided for by law,
as the applicant having formerly been a judge must have known. His
rights under the Convention were respected by providing for this legal
possibility which he did not use. In this situation he could not
invoke the additional discretionary power given to the Supreme Court
and complain that it was not applied in his favour. In any event it
was not required in the interest of justice to bring the applicant
before the Supreme Court for the hearing of the appeals.
94. The Commission notes that in the Andersson and Fejde judgments
of 29 October 1991 (Series A, no. 212-B, para. 29; no. 212-C, para. 33)
the European Court of Human Rights considered that the holding of a
public appeal hearing in the presence of the accused was not necessary
unless the matter at stake for the applicant was of particular
seriousness and if the case only concerned a minor offence. In the
Kamasinski judgment (loc. cit., p. 45, para. 107) the Court further
considered it relevant for the necessity of personal presence of the
accused at an appeal hearing whether or not a severer sentence than
that passed at first instance could be imposed.
95. The present case concerned a serious crime of which the applicant
had been found guilty and the Supreme Court was inter alia called upon
to examine an appeal of the prosecution seeking an increase of the
sentence from twenty years' imprisonment to a life sentence. The
Supreme Court furthermore had to decide the question whether the
sentence was to be served in a normal prison or in a special
institution for mentally deranged offenders. These matters were
particularly serious for the applicant and also necessarily involved
an assessment of his character. In the Commission's opinion a decision
on these questions could not be taken without hearing the applicant in
person.
96. A further element indicating the necessity to allow the
applicant's personal presence lies in the Supreme Court's findings
concerning the motive for the crime, the manner in which it was
committed, and the applicant's state of mind at the relevant time.
There is no indication that these findings were covered by the results
of the first instance procedure. The jury's findings concerning the
applicant's guilt were not reasoned and the only reasons given in the
judgment concerned the considerations for meting out the sentence.
They did not contain statements as those made by the Supreme Court.
The jury's memorandum only stated that the motives of the crime could
not be clarified as there were too many possibilities. The Supreme
Court's reference to an intention by the applicant to cover up
financial offences is also surprising since the original charge
concerning financial offences was dropped and the Court of Assizes'
judgment did not contain any findings in this respect.
97. By their nature the new facts established by the Supreme Court
concerned the applicant's subjective attitude at the time of the
offence and therefore required to be discussed with him personally in
order to ensure him a "fair trial" and his right "to defend himself in
person".
98. It is true that, until the submission of his counter-statement
to the prosecution's appeal, the applicant had a legal right to request
his personal appearance at the Supreme Court's hearing of the appeals
and that he did not make use of this right. The reference in passing
to the fact that the Supreme Court's hearing also concerned the appeals
against sentence, which he made in his request to attend the hearing
of the pleas of nullity, was not sufficient under Austrian law to be
regarded as a request for permission to appear at the hearing of the
appeals. As a former judge, who was furthermore represented by an
official defence counsel, the applicant must have been fully aware of
the legal situation in this respect.
99. However, the situation under Austrian law is not necessarily
decisive concerning the question whether there has been a valid waiver
of Convention rights. The European Court of Human Rights has
repeatedly held that, in so far as such a waiver is permissible, it
must be established in an unequivocal manner (cf. inter alia, Deweer
judgment of 27 February 1980, Series A no. 35; Colozza judgment of
12 February 1985, Series A no. 89; Oberschlick judgment of 23 May 1991,
Series A no. 204, p. 23 para. 51; and Pfeifer and Plankl judgment of
25 February 1992, Series A no. 227, para. 37, where the Court also
stated that a waiver requires minimum guarantees commensurate to its
importance). In the present case the applicant expressly referred to
the problem of his presence at the hearing of the appeals when
requesting to be brought to the hearing of the pleas of nullity. It
therefore cannot be said that he unequivocally waived his right to be
present at the hearing of the appeals, in particular as the time-limit
for making a request in this respect had already expired.
100. The Commission must therefore examine the Government's argument
according to which it was sufficient for safeguarding the applicant's
rights of defence in the present case that he had the legal possibility
to request, at an early stage of the Supreme Court's proceedings, his
personal appearance.
101. The Supreme Court, when fixing the date of the public hearing in
1986, was fully aware of the factual elements which could be relevant
for its decision and in particular of the probability that the sentence
would be increased. At this time the applicant no longer had a right
to request his attendance. In this situation the Supreme Court
exercised its discretionary power in the sense that the applicant
should be excluded from the hearing of the appeals because his presence
was not required by the interest of justice. It thereby adopted an
approach which in the Commission's opinion is in conflict with the very
concept of a "fair hearing" and the right of the accused "to defend
himself in person". The fact that the applicant was not allowed to be
present at the Supreme Court's hearing of the appeals was, therefore,
not in conformity with the applicant's right to a fair trial including
the right to defend himself.
Conclusion
102. The Commission concludes, by 11 votes to 3, that there has been
a violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention in that the applicant was not allowed to be personally
present at the Supreme Court's hearing.
2. Article 14 in conjunction with Article 6 (Art. 14+6) of the
Convention
103. Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
104. The applicant alleges a violation of this provision in
conjunction with Article 6 (Art. 6) in that, being in custody, he was
not allowed to be personally present at the Supreme Court's hearing
while an accused at liberty would have had a legal right to be present.
The applicant refers both to the hearing of the pleas of nullity and
that of the appeals. The Government deny a violation of
Article 14 (Art. 14).
105. Since the Commission has just found that the Supreme Court
exercised its discretion concerning the applicant's personal presence
at the hearing in a manner leading to a violation of Article 6
(Art. 6) of the Convention, the Commission does not consider it
necessary to examine whether in this respect there has also been
discrimination contrary to Article 14 (Art. 14) of the Convention
(cf. mutatis mutandis, Eur. Court H.R., Philis v. Greece judgment of
27 August 1991, Series A no. 209, para. 68).
Conclusion
106. The Commission concludes, by 11 votes to 3, that it is not
necessary to examine the applicant's complaint under Article 14 in
conjunction with Article 6 (Art. 14+6) of the Convention.
D. FAIRNESS OF THE SUPREME COURT'S PROCEEDINGS
1. Preparation of the judgment prior to the Supreme Court's hearing
107. The applicant alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention (for text, see para. 78 above) in that the
Judge Rapporteur prepared a draft judgment prior to the hearing of the
case by the competent Supreme Court Chamber, and that the draft was
also discussed between members of the chamber prior to the hearing,
without a record of those deliberations being prepared. The judgment
finally adopted was based on the Judge Rapporteur's draft without any
amendments, which in the applicant's view shows that the defence
arguments submitted at the hearing were not taken into account.
108. The Government contend that the defence arguments submitted at
that hearing only repeated the applicant's written submissions
concerning the pleas of nullity. Accordingly it was not necessary to
change the draft judgment concerning those pleas. As regards the
appeals against sentence, the Government submit that the Judge
Rapporteur's draft on this part of the case was prepared only after the
hearing and that it reflected the results thereof.
109. On the basis of the available material the Commission finds that
prior to the hearing only a draft concerning the pleas of nullity was
prepared by the Judge Rapporteur and informally discussed between
members of the Supreme Court Chamber. The Commission is satisfied that
the part of the judgment dealing with the appeals against sentence was
only prepared after the hearing.
110. The fact that part of the Supreme Court's judgment was prepared
before the hearing does not in the Commission's opinion make the
proceedings unfair. The Commission has examined the Supreme Court's
practice in this respect in Application No. 13129/87 (Frick v. Austria,
Dec. 15.10.91) where it stated the following:
"The Commission does not find this practice objectionable. It
is a normal task of a Judge Rapporteur to make a proposal on the
question of whether a plea of nullity is well-founded or not.
This proposal does not bind the other judges of the Chamber and
it is subject to changes or amendments as a result of the oral
hearing. In the Commission's opinion it makes no vital
difference whether the proposal is simply limited to stating the
views of the Judge Rapporteur or whether it is laid out in the
form of a draft decision."
The Commission sees no reason to depart from this finding in the
present case.
Conclusion
111. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention by
the mere fact that a draft judment was prepared before the Supreme
Court's hearing.
2. Opportunity for the defence to obtain, and to comment on, the
Attorney General's position paper
112. The applicant complains that the Attorney General's position
paper, on which the Supreme Court's judgment was based to a large
extent, was served on the defence only three weeks before the Supreme
Court's hearing, together with the summons to that hearing, although
its communication had been requested much earlier. The applicant
claims that in this respect he was placed at an unfair disadvantage in
comparison to the Attorney General's office, contrary to Article 6
para. 1 (Art. 6-1) of the Convention, and that he was not given
adequate time and facilities for the preparation of his defence,
contrary to Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.
113. The text of the relevant part of Article 6 para. 1 (Art. 6-1) is
reproduced in para. 78 above. Article 6 para. 3 (b) (Art. 6-3-b) reads
as follows:
"Everyone charged with a criminal offence has the following
minimum rights:
...
b) to have adequate time and facilities for the preparation of
his defence."
114. The Government deny a violation of these provisions. They submit
that the applicant's defence counsel could have asked for an inspection
of the position paper in the file before it was formally served on him.
He thus could in good time get knowledge of the contents of the
position paper in conformity with a procedure which the Commission had
found to be compatible with Article 6 (Art. 6) of the Convention in
Application No. 8289/78 (Peschke v. Austria, Dec. 5.3.80,
D.R. 18 p. 160). In any event, as the paper was in fact served on the
defence three weeks before the Supreme Court's hearing, there remained
in the Government's opinion still sufficient time to prepare the
defence.
115. The Commission recalls that the principle of equality of arms
must be observed between the defence and the Attorney General's office.
By recommending that the remedies taken on behalf of the accused be
dismissed and those taken against him by the prosecution be allowed,
this office becomes objectively speaking the opponent of the accused
(cf. Eur. Court H.R., Borgers judgment, loc. cit., para. 26; also
Application No. 8289/78, Peschke v. Austria, loc. cit., and mutatis
mutandis, Eur. Court H.R., Brandstetter judgment of 28 August 1991,
Series A no. 211, p. 27 para. 67).
116. It is true, as the Commission observed in the Peschke case (loc.
cit.), that "the principle of equality of arms enshrined in the notion
of fair trial does not call for a particular form of communication of
the contents of the file, or of any part of it, to the defence. As
long as the available procedure is not particularly onerous and does
not in essence deprive the defence of the practical possibility of
making use of its rights it cannot be said that the right to a fair
trial has been impaired".
117. However, in the Brandstetter judgment which concerned a similar
practice before the Vienna Court of Appeal the European Court of Human
Rights found a violation of Article 6 para. 1 (Art. 6-1). The Court
argued as follows (loc. cit., para. 67):
"The right to an adversarial trial means, in a criminal case,
that both prosecution and defence must be given the opportunity
to have knowledge of and comment on the observations filed and
the evidence adduced by the other party. Various ways are
conceivable in which national law may secure that this
requirement is met. However, whatever method is chosen, it
should ensure that the other party will be aware that
observations have been filed and will get a real opportunity to
comment thereon ... .
In the present case it is common ground that no copy of the
submissions of the Senior Public Prosecutor was sent to the
applicant and that he was not informed of their having been filed
either. The Government's argument is not that these submissions
are prescribed by law so that the applicant should have known
that they were to be filed; their argument seems to be that the
submissions - the so-called "croquis" (...) - were filed
according to a standing practice which enables the Senior Public
Prosecutor to file such a croquis in such cases as he deems
appropriate. They suggest that this practice must have been
known to the applicant's lawyer who, accordingly, could have
enquired whether in the applicant's case a croquis had been
filed. If so, he could have requested leave to inspect the file
under section 82 of the Code of Criminal Procedure and thus could
have commented on it. Section 82, as it is formulated, however,
does not seem to grant an unconditional right to inspect the
complete file but only the possibility to ask for leave to do so,
and the parties differ as to whether, with regard to the croquis,
such leave would have been granted at the relevant time....
The Court notes that the croquis apparently has considerable
importance and that the alleged practice requires vigilance and
efforts on the part of the defence; against this background, the
Court is not satisfied that this practice sufficiently ensures
that appellants in whose cases the Senior Public Prosecutor has
filed a croquis on which they should comment are aware of such
filing."
118. The present case can be distinguished from the Brandstetter case
in that the defence actually knew at least since September 1985 that
the Attorney General's office had filed a position paper, and in that
this position paper was in fact served on the defence counsel three
weeks before the court's hearing. The legal position regarding the
inspection of the position paper in the file was, however, the same as
in the Brandstetter case, i.e. there existed a possibility to apply
for, but not a right to be granted access to this document.
119. The applicant in fact applied on 18 September 1985 and his lawyer
on 2 October 1985 to be served with a copy thereof. However, no
decision was taken concerning these requests. The Government have not
explained why there was no reaction at that time and why it was not
possible to serve the position paper on the applicant's counsel before
the date of the summons.
120. The Commission notes that, as in the Brandstetter case, vigilance
and efforts were thus required of the defence to get hold of the
Attorney General's position paper. The Commission also considers it
relevant in this context that the position paper, whose length was
49 pages, was used to a large extent as the basis for the Judge
Rapporteur's draft decision. The defence had no opportunity to comment
thereon before the oral hearing of the Supreme Court, i.e. after the
Supreme Court's judgment had been drafted and informally discussed
between members of the competent chamber. Although the defence
submitted comments on the position paper at the hearing, the Supreme
Court did not consider it appropriate to make any changes in the draft
judgment which thus became the final decision without reflecting those
comments.
121. In these circumstances, the Commission finds that the principles
of a "fair hearing" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention have not been respected and that the
defence was not granted "adequate time and facilities" to prepare and
submit its arguments under conditions which ensured that they could
effectively be taken into account in the court's decision.
Conclusion
122. The Commission concludes, by 8 votes to 6, that there has been
a violation of Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-3-b) of the
Convention in that the applicant was not granted sufficient
opportunities to obtain, and to comment on, the Attorney General's
position paper.
3. Other complaints
123. The applicant also complains of a violation of Article 6 para. 1
(Art. 6-1) in several other respects. He claims that the principle of
equality of arms was disregarded in that
- the defence was required to introduce its remedies against the
judgment of first instance within short time-limits whereas no time-
limit was provided for as regards the submission of observations on
those remedies by the Attorney General's office;
- the Attorney General's office, unlike the defence, was informed
at an early stage of the identity of the Judge Rapporteur contrary to
the provisions of the law and thus knew which Chamber of the Supreme
Court would deal with the case and could adapt its argumentation
accordingly; and
- the Supreme Court's file including the Judge Rapporteur's draft
decision was allegedly transmitted to the Attorney General's office but
not to the defence together with the summons to the hearing.
124. The applicant further claims that his rights of defence under
Article 6 para. 3 (b) (Art. 6-3-b) were violated in that
- he was refused to inspect the file personally; and
- the decision on the refusal to allow his personal appearance at
the hearing was served on his counsel only on the very day of the
hearing.
125. The Government consider the time allowed to the Attorney
General's office for commenting on the remedies justified because,
unlike the defence, the office must first familiarise itself with the
case. They admit that in the applicant's case the name of the Judge
Rapporteur was unlawfully disclosed to the Attorney General's office,
but this fact could not make the proceedings unfair. Finally, as
regards the alleged transmission of the file, the Government refer to
the applicable legal provisions and the practice of the Supreme Court
not to disclose to any of the parties documents which would allow
conclusions to be drawn as to the preparation of its decision. In the
Government's submission this practice was also followed in the present
case.
126. The Government further submit that the applicant's rights under
Article 6 para. 3 (b) (Art. 6-3-b) were not violated. It was not
necessary to grant the applicant personal access to the file since he
was represented by a lawyer. They also contest that the decision to
refuse the applicant's personal appearance was served on him belatedly.
127. The Commission considers that an inequality between the defence
and the prosecution as regards the time allowed for entering an appeal
may raise issues under Article 6 (Art. 6) of the Convention in certain
circumstances. However, not every inequality of treatment necessarily
amounts to a violation of this provision. It is necessary to consider
the particular circumstances of each case (cf. No. 10142/82,
U. v. Luxembourg, Dec. 8.7.85, D.R. 42 p. 86).
128. In the Austrian legal system the time-limits for introducing
remedies against the first instance judgment are in principle the same
both for the defence and the prosecution. Only as regards the
submission of the Attorney General's position paper no time-limit is
provided for. In any event these procedural acts occur at different
stages of the proceedings which are not directly comparable (cf.,
mutatis mutandis, No. 12129/86, Hennings v. the Federal Republic of
Germany, Comm. Report 30.5.91, para. 67).
129. In the present case the Court of Assizes' judgment was served on
the parties in February 1985, the various remedies against it were
lodged between February and April 1985 and transmitted to the Attorney
General's office in May 1985. Its position paper was submitted in
August 1985. The Commission notes that the Attorney General's office
was not previously familiar with the file and that it stated its
position three months after the submission of the various remedies to
it. Having regard to the complexity of the case this period does not
appear so long as to give the Attorney General's office an unfair
advantage over the defence.
130. As to the applicant's further complaint that the principle of
equality of arms was violated by the fact that the name of the Supreme
Court's Judge Rapporteur was disclosed to the Attorney General's
office, but not to the defence, the Commission notes that this
disclosure violated Austrian law. However, the relative advantage
obtained thereby by the Attorney General's office, if any, was not in
the Commission's opinion of such importance that it amounted to a
violation of the principle of equality of arms.
131. The applicant further alleges that the principle of equality of
arms was violated, because, unlike the defence, the Attorney General's
office had also been informed of the Judge Rapporteur's draft decision.
132. However, it appears from the documents submitted that at no time
after the preparation of the Judge Rapporteur's draft decision a
judicial order was made under Section 60 para. 6 of the Supreme Court's
Rules of Procedure to transmit the file to the Attorney General's
office. The fact that the summons in subsequent disciplinary
proceedings was formulated differently by expressly excluding the
Rapporteur's draft decision from the transmission of the file, which
was apparently ordered on that occasion, does not warrant the
conclusion that on 9 June 1986 the draft judgment was sent to the
Attorney General's office. The facts therefore do not disclose any
unequal treatment between the defence and the Attorney General's office
in this respect.
133. As regards the applicant's complaint concerning the refusal of
personal inspection rights, the Commission recalls that in the
Kamasinski case (judgment of 19 December 1989, loc. cit., p. 39,
para. 88) the European Court of Human Rights found that the provision
of the Austrian Code of Criminal Procedure excluding personal
inspection rights of the accused if he is represented by a lawyer is
not in itself incompatible with Article 6 para. 3 (b) (Art. 6-3-b).
It finds that also in the present case this provision has not been
violated by the fact that the applicant personally was not granted
access to the file.
134. As regards finally the fact that the applicant was not informed
before the date of the Supreme Court's hearing that he would not be
allowed to be personally present at that hearing, the Commission does
not consider that a separate issue arises under Article 6 para. 3 (b)
(Art. 6-3-b) of the Convention since it has already found that the
applicant's exclusion from the hearing violated Article 6 paras. 1 and
3 (c) (Art. 6-1, 6-3-c) of the Convention.
Conclusions
135. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 (Art. 6) of the Convention as regards
the applicant's remaining complaints concerning the fairness of the
Supreme Court's proceedings.
E. EFFECTIVE DOMESTIC REMEDIES
136. Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
137. The applicant sees a violation of this provision in the limited
scope of the Supreme Court's powers of review.
138. The Government have not made any submissions in relation to this
complaint.
139. The Commission recalls its decision on admissibility
(Appendix II) where it rejected all complaints concerning the first
instance procedure. It further recalls the constant case-law according
to which the Convention, including Article 13 (Art. 13), does not
guarantee a right to criminal appeal proceedings. Such a right was
only introduced by Article 2 of Protocol No. 7 (P7-2) which was not in
force at the time of the facts of the applicant's case.
140. In these circumstances, the Commission finds that no breach of
Article 13 (Art. 13) of the Convention can be made out.
Conclusion
141. The Commission concludes, by a unanimous vote, that there has
been no violation ofArticle 13 (Art. 13) of the Convention.
F. DETENTION AS A CONVICTED PRISONER
142. The applicant complains of a violation of Article 5 para. 1 (a)
in conjunction with Article 14 (Art. 5-1-a+14) of the Convention. He
claims that the Supreme Court's judgment was arbitrary and
contradictory and that for this reason his subsequent detention cannot
be regarded as being detention after "lawful" conviction by a competent
court.
143. The Government have not made any submissions in relation to this
complaint.
144. Article 5 para. 1 (a) (Art. 5-1-a) of the Convention reads as
follows:
"Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
a) the lawful detention of a person after conviction by a
competent court".
145. The Commission considers that the detention of a person "after
conviction by a competent court" cannot be examined separately as to
its lawfulness under Article 5 para. 1 (a) (Art. 5-1-a) in so far as
grounds are invoked which relate to the conviction itself. This
question can only be examined in the context of Article 6 (Art. 6) of
the Convention.
146. Since there is no issue under Article 5, Article 14 (Art. 5, 14)
does not apply either in this respect.
Conclusion
147. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 5 in conjunction with Article 14
(Art. 5+14) of the Convention.
G. RECAPITULATION
148. The Commission concludes, by 11 votes to 3, that there has been
a violation of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention in that the applicant was not allowed to be personally
present at the Supreme Court's hearing (cf. para. 102 above).
149. The Commission concludes, by 11 votes to 3, that it is not
necessary to examine the applicant's complaint under Article 14 in
conjunction with Article 6 (Art. 14+6) of the Convention (cf. para. 106
above).
150. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention by
the mere fact that a draft judment was prepared before the Supreme
Court's hearing (cf. para. 111 above).
151. The Commission concludes, by 8 votes to 6, that there has been
a violation of Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-3-b) of the
Convention in that the applicant was not granted sufficient
opportunities to obtain, and to comment on, the Attorney General's
position paper (cf. para. 122 above).
152. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 (Art. 6) of the Convention as regards
the applicant's remaining complaints concerning the fairness of the
Supreme Court's proceedings (cf. para. 135 above).
153. The Commission concludes, by a unanimous vote, that there has
been no violation ofArticle 13 (Art. 13) of the Convention
(cf. para. 141 above).
154. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 5 in conjunction with Article 14
(Art. 5+14) of the Convention (cf. para. 147 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Dissenting opinion of Mr. H. Danelius, joined by
MM. C.A. Nørgaard and G. Jörundsson
I have voted against the Commission's conclusions in paras. 102,
106 and 122 of this Report for the following reasons.
1. As regards the hearing before the Supreme Court, at which the
applicant was not personally present but only represented by his
lawyer, I note that the hearing consisted of two parts, namely one
which concerned the pleas of nullity filed by the applicant and others
and one which concerned the appeal against sentence lodged by the
public prosecutor.
According to the case-law of the European Court of Human Rights,
an oral hearing in a Supreme Court, after such a hearing has been held
in a lower court, is not required by Article 6 of the Convention if the
higher court's review is limited to questions of law (Axen judgment of
8 December 1983; Sutter judgment of 22 February 1984). It must follow
that where in such cases a hearing is held at which the accused is not
personally present but represented by his lawyer, this is not in
conflict with Article 6.
In the present case, the hearing regarding the pleas of nullity
mainly concerned legal issues. In fact the applicant had alleged in
his plea of nullity that he had been denied the right to defend himself
and that the trial had been unfair. It is true that certain additional
evidence was also submitted to the Supreme Court in these proceedings.
This evidence consisted of certain parts of the diary of the victim of
the crime. However, these diary-sheets had been communicated to the
applicant before the hearing and he had had the opportunity of
commenting upon them. His arguments in regard to this new evidence
could also be presented at the hearing by his lawyer.
In these circumstances, it does not appear that the hearing
regarding the pleas of nullity was unfair by reason of the fact that
the applicant was not entitled to attend it in person.
As regards the hearing concerning the public prosecutor's appeal
against the sentence, the legal situation is different. The nature of
this appeal did indeed require that the applicant should be entitled
under Article 6 of the Convention to attend it in person.
However, Section 296 para. 3 of the Austrian 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. It is therefore clear that the applicant had the
right to attend the hearing but that he did not avail himself of this
right by making a request in his submissions in reply to the public
prosecutor's appeal. The applicant, who was himself a judge, as well
as his lawyer must have been aware of the legal situation and must have
deliberately chosen not to make use of the right of personal
attendance.
In these circumstances, the applicant's absence from the hearing
regarding the public prosecutor's appeal was not in conflict with
Article 6.
2. The applicant further complains of discrimination in so far as
under Austrian law the right to attend a hearing before the Supreme
Court is different depending on whether or not an accused person is
detained.
With regard to a hearing of a plea of nullity, it would seem that
the reasons behind the distinction made in this regard could be
considered objective and reasonable and that there is therefore no
violation of Article 14 in conjunction with Article 6 of the
Convention. As regards the hearing of an appeal against sentence, the
difference between an accused at liberty and one who is detained is
more limited. The first one has an unrestricted right to attend the
hearing, whereas the second one must make a request to this effect in
his appeal or counter-statement, which in the present case the
applicant did not do. Again it would seem that the distinction is
based on objective and reasonable grounds and that there is no
violation of Article 14 in conjunction with Article 6 of the
Convention.
3. As regards the fact that the Attorney General's position paper
was sent to the applicant's lawyer in June 1986, i.e. only three weeks
before the Supreme Court's hearing, and that the applicant himself was
not permitted to inspect the paper in the case-file or to receive a
copy of it, it is indeed difficult to understand the reasons for such
a restrictive attitude. It would rather seem natural that such an
important document should be immediately communicated to the lawyer of
the accused and that the accused himself should also be given access
to it.
The question is, however, whether the manner in which the
Austrian court dealt with the matter was prejudicial to the applicant's
defence and for that reason contrary to Article 6 of the Convention.
In this regard it should first be noted that the Attorney
General's position paper was not the first intervention in the
proceedings before the Supreme Court but that it should rather be
considered as an answer to the applicant's as well as to his mother's
and wife's pleas of nullity (see Report paras. 31, 32 and 35).
Secondly I note that there was a period of three weeks between the time
when the lawyer received the document and the hearing before the
Supreme Court. Moreover, if the lawyer had considered it essential to
acquaint himself with the document earlier, he could have requested to
read the document in the case-file, and it seems at least very likely
that such a request would have been granted.
In these circumstances, I cannot find that the applicant's
defence was prejudiced in violation of Article 6 of the Convention.
Dissenting opinion by MM. S. Trechsel,
H. Schermers and A.V. Almeida Ribeiro
We have voted against the Commission's conclusion in para. 122
of this Report for the reasons indicated in point 3 of Mr. Danelius'
dissenting opinion.
APPENDIX I
HISTORY OF PROCEEDINGS BEFORE THE COMMISSION
Date Item
______________________________________________________________________
1. 8.1986 Introduction of the application
22. 8.1986 Registration of the application
A. Examination of Admissibility
19. 1.1989 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
11. 4.1989 Extension of time-limit at
Government's request
23. 5.1989 Government's observations
20. 7.1989 Extension of time-limit at applicant's
request
18. 8.1989 Applicant's observations in reply
2. 4.1990 Commission's decision to hold an oral
hearing and to invite parties to
submit further written observations
29. 6.1990 Applicant's additional observations
17. 7.1990 Government's additional observations
5. 9.1990 Oral hearing on admissibility and
merits, Commission's decision to
declare the application in part
admissible and in part inadmissible
B. Examination of the merits
12.10.1990 Commission adopts the text of the
decision and invites the parties to
submit supplementary observations on
the merits
4.12.1990 Government's additional observations
6.12.1990 Extension of time-limit at applicant's
request
12. 1.1991 Consideration of the state of
proceedings
15. 2.1991 Applicant's additional observations
7. 9.1991 ) Commission's consideration of the
11. 1.1992 ) state of proceedings
12.5.1992 Commission's deliberations on the
merits and final votes
20.5.1992 Adoption of the Report