Lexploria

Application No. 10532/83

Helmut ALDRIAN

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 17 March 1989)

10532/83

- i -

TABLE OF CONTENTS

Page

I. THE PARTIES

(paras. 1-2) 1

II. SUMMARY OF THE FACTS

(paras. 3-6) 1

III. PROCEEDINGS BEFORE THE COMMISSION

(paras. 7-19) 1-3

IV. THE DECISION OF THE COMMISSION

(paras. 20-22) 4

APPENDIX: Decision as to the admissibility,

15 December 1987 5-21

I. THE PARTIES

1. This report, drawn up by the Commission in accordance with

Rule 54 of its Rules of Procedure, concerns the application introduced

by Helmut ALDRIAN against Austria and registered under file No.

10532/83.

2. Before the Commission, the applicant was represented by

Rechtsanwalt Dr. Karl Bernhauser of Vienna; the Austrian Government

were represented by their Agent, Botschafter Dr. Helmut TÜRK, Head of

the International Law Department, Federal Ministry of Foreign Affairs.

II. SUMMARY OF THE FACTS

3. The facts of the case are set out in the Commission's Decision

as to the admissibility of the application of 15 December 1987,

attached hereto as an Appendix (pp. 5 -21). They may be summarised as

follows:

4. The applicant was charged with murder after having attacked

four, and killed two, of his fellow soldiers while doing military

service with an Austrian peace-keeping contingent in Syria. A first

trial took place in December 1979 before a Court of Assizes of the

Vienna Regional Criminal Court. The three experts disagreed on the

question of the applicant's criminal responsiblity. The Court refused

to obtain an expert opinion from a university medical faculty

(Fakultätsgutachten, Section 126 of the Code of Criminal Procedure).

The jury found the applicant guilty. He was given a life sentence.

Upon his plea of nullity the Supreme Court on 16 December 1980 quashed

this judgment, directing the trial court to determine the applicant's

criminal responsibility on the basis of a medical faculty opinion.

5. At a new trial in September 1982 the individual experts

maintained the views expressed at the first trial. The faculty

opinion concluded that the applicant's criminal responsibility at the

time of the crime was excluded by a pathological state of

intoxication. In its verdict of 22 September 1982 the jury found the

applicant criminally responsible. He was again convicted of murder

and given a life sentence. On 26 April 1983 the Supreme Court rejected

his plea of nullity.

6. Before the Commission, the applicant alleged that Article 6

paras. 1 and 3 (d) of the Convention had been violated.

III. PROCEEDINGS BEFORE THE COMMISSION

7. The application was introduced on 27 June and registered

on 17 August 1983.

8. On 7 July 1986 the Commission decided to give notice of the

application to the respondent Government and to invite them, in

accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to

submit before 24 October 1986 observations in writing on the

admissibility and merits of the application.

9. The Government submitted their observations on 21 October 1986

and the applicant submitted observations in reply on 29 December 1986.

10. On 13 March 1987, the Commission decided to grant free legal

aid to the applicant under the Addendum to its Rules of Procedure.

11. On 13 May 1987 the Commission decided, pursuant to Rule 40

para. 3 (b) of the Rules of Procedure, to invite the parties to submit

further observations orally at a hearing on the admissibility and

merits of the application.

12. At the hearing on 15 December 1987 the parties were

represented as follows:

- the Government by their Agent, Ambassador Dr. Helmut Türk,

and by Dr. Wolf Okresek, of the Constitutional Law Department of the

Federal Chancellery, and Dr. Irene Gartner, of the Federal Ministry of

Justice, Advisers;

- the applicant by Dr. Richard Soyer, criminal defence

counsel, acting as substitute for the applicant's legal

representative, Dr. Karl Bernhauser.

13. Following the hearing, the Commission declared the application

admissible and invited the parties to submit additional information

on the facts before 31 January 1988. The applicant submitted the

information on 28 January 1988 and the Government on 2 and

8 February 1988.

14. On 10 March 1988 the Commission approved the text of the

decision on admissibility which was communicated to the parties on

21 March 1988. They were invited to submit before 6 May 1988 any

further observations which they wished to make on the merits. The

applicant submitted observations on 6 May 1988, the Government, after

having been granted an extension of the time-limit, on 25 May 1988.

15. On 12 December 1988, the Commission considered the merits of

the application.

16. On 9 January 1989 the applicant informed the Commission of his

readiness to withdraw the application if he was released by an act of

grace and if his costs not covered by the Commission's legal aid

were reimbursed by the Government.

17. On 21 February 1989 the Government addressed the following

letter to the Commission:

"...............I have the honour to inform you that in the

above mentioned case a friendly settlement was reached with

the applicant. On the part of the Austrian Government, the

friendly settlement foresees

- the reduction, as a measure of grace, of the

applicant's prison sentence for life to 15

years of imprisonment;

- the payment of a lump sum of AS 50,000.- for the

costs of proceedings of the complaint procedure.

In view of this friendly settlement, the Austrian

Government requests to strike the above application

off the Commission's list of pending cases."

18. On 27 February 1989 a copy of this letter was transmitted to

the applicant's lawyer who on 2 March 1989 replied in the following

terms:

"The applicant declares that, having regard to the conditions

mentioned in the letter of the Austrian Government of

21 February 1989, he agrees to the withdrawal of the

application in accordance with Rule 54 of the Rules of

Procedure.

The withdrawal of the application is, however,

subject to the reservation that the application will be

reactivated if the Austrian Federal President should not

give his necessary consent to the friendly settlement by

granting an act of grace."

19. On 17 March 1989 the Commission resumed its examination of the

application, the following members being present:

MM. S. TRECHSEL, Acting President

J. A. FROWEIN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. C. L. ROZAKIS

Mrs.J. LIDDY

Mr. L. LOUCAIDES

and decided to adopt the present Report.

IV. THE DECISION OF THE COMMISSION

20. The Commission notes the request of the Government to strike the

application off the Commission's list of cases, and the applicant's

declaration that he wishes to withdraw the application in view

of the solution of the case which has been agreed between his lawyer

and the Government.

21. The Commission finds, therefore, that the applicant no longer

wishes his case to be examined, and that reasons of a general

character affecting the observance of the Convention do not warrant

further examination of the application.

22. For these reasons, the Commission, having regard to

Rules 44 para. 1 (b), 49 and 54 of its Rules of Procedure,

- decides to strike Application No. 10532/83 off its

list;

- adopts the present Report;

- decides to send the present Report to the Committee of

Ministers for information, to send it also to the

parties, and to publish it.

Secretary to the Commission Acting President of the Commission

(H. C. KRÜGER) (S. TRECHSEL)

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ALDRIAN v. AUSTRIA

ALDRIAN v. AUSTRIA

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