Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32054/96

by Ahmet SAGIR

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 June 1996 by

Ahmet SAGIR against Austria and registered on 27 June 1996 under file

No. 32054/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1964, is a Turkish citizen residing in

Hohenems. He is presently detained in a prison. Before the Commission

the applicant is represented by Mr. W.L. Weh, a lawyer practising in

Bregenz.

The facts as submitted by the applicant may be summarised as

follows.

A. Particular circumstances of the case

On 19 April 1995 a bench of the Feldkirch Regional Court

(Landesgericht), sitting with two professional judges and two lay

judges found the applicant guilty of having twice attempted to sell 750

grammes of heroin, and of having falsely pretended that he had been

ill-treated by two police officers while in police custody. It

convicted the applicant of an offence under the Narcotic Drugs Act

(Suchtgiftgesetz) and of defamation and sentenced him to three and a

half years' imprisonment.

The Regional Court found it established that the applicant had

attempted to sell heroin in a quantity considered as large under the

Narcotic Drugs Act to S. and to M.G., who - in the same proceedings -

was convicted of several drug offences. In its assessment of evidence

the court relied, in particular, on the confession of the co-accused

Y.Y., who had acted as a middleman between the applicant and the

prospective buyers. The court did not accept the applicant's defence

according to which the subject of the deal had been weapons and not

drugs, but considered this account as being in contradiction with,

inter alia, the extensive telephone recordings made by the police. The

Regional Court further considered that on 21 June 1994 the applicant

had made a confession before the police and that on 22 June 1994 he had

given further details of the heroin deal. The Regional Court noted

that before the investigating judge the applicant had denied any

involvement in heroin trafficking, but - when confronted with his

statements before the police - could not give any explanation for the

discrepancies in his accounts. Only after the formal questioning had

he told the investigating judge that he had been ill-treated by the

police officers when making his first confession. Relying on the

evidence given by the investigating judge and two police officers, the

Regional Court found that the applicant's account of his alleged ill-

treatment was inconsistent and contradictory.

As to the charge of defamation the Regional Court - referring to

the testimonies of the police officers and the investigating judge -

found that the applicant had wrongly and knowingly accused the two

police officers of abuse of authority (Amtsmißbrauch) and had exposed

them to the risk of prosecution by the authorities by making the

following statement:

"I made the statements of 21 June and 22 June 1994, because I was

hit and ill-treated in such a manner that I had to give up and

said, write whatever you like. ... then two policemen came and

gave me a punch and called me a "pig". I told them that I had

not done this, whereupon they gave me further punches. This

happened while I was being questioned. As a consequence of these

punches my gums were bleeding."

In fixing the applicant's sentence the Regional Court considered

as aggravating factors the concurrence of an offence under the Narcotic

Drugs Act and the offence of defamation; the repeated violation of the

Narcotic Drugs Act; the high quantity of drugs concerned; a previous

conviction for having negligently caused bodily harm; the fact that two

civil servants had been defamed and that the applicant had acted for

the purpose of gain. It considered as mitigating that the applicant

had only attempted to commit offences under the Narcotic Drugs Act and

that he had partly made - though later withdrawn - a confession.

On 31 July 1995 the applicant represented by legal aid defence

counsel filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal

(Berufung). Under the heading "nullity" (Nichtigkeit) he submitted as

a ground of nullity, inter alia, that the court's reasoning regarding

the possession and the quantity of heroin was contradictory,

insufficient, unclear and not corroborated by the files. Under the

heading "appeal against the finding of guilt" (Berufung wegen des

Ausspruches über die Schuld) he submitted that the Regional Court had

incorrectly assessed the evidence and wrongly stated the facts, in

particular, as concerns the possession and the quantity of heroin. As

regards his conviction of defamation he submitted that he had made this

statement in the exercise of his defence rights and that it was

improbable that the police officers would have been prosecuted. Under

the heading "appeal against the fixing of the sentence" (Berufung wegen

des Ausspruchs über die Strafe) he argued that the Regional Court had

wrongly assessed the aggravating circumstances and had not duly taken

into account further mitigating circumstances.

On 12 December 1995 the Supreme Court, in a judgment of 30 pages,

dismissed the applicant's plea of nullity and appeal as regards the

sentence. It rejected as inadmissible the applicant's appeal from

guilt on the ground that no such remedy laid against judgment of a

court sitting with a bench.

B. Relevant domestic law

The Austrian Code of Criminal Procedure provides in case of

conviction or acquittal for a review of a judgment by one higher

instance. In case of conviction by the bench of a Regional Court

(normally composed of two professional judges and two lay judges) or

a Court of Assizes (Geschworenengericht) a convicted person may file

a plea of nullity (Nichtigkeitsbeschwerde) to have the lawfulness of

the trial and the criminal proceedings reviewed and an appeal

(Berufung) to have the sentence reviewed (SS. 280, 281 and 283). A

review of the assessment of evidence (Beweiswürdigung) is not provided

for in such proceedings. A plea of nullity is decided upon by the

Supreme Court, an appeal by the Court of Appeal unless the Supreme

Court decides to deal at the same time with a plea of nullity and an

appeal (SS. 280, 296).

In case of conviction by a District Court or by a Regional Court

sitting with a single judge (Einzelrichter) the remedy against the

conviction is an appeal to the Regional Court or the Court of Appeal

respectively (SS. 463, 489). The Code of Criminal Procedure

distinguishes between an appeal for nullity (Nichtigkeitsberufung) in

order to have - as in proceedings on a plea of nullity - the lawfulness

of the trial and the criminal proceedings reviewed, an appeal on the

question of guilt (Schuldberufung) to have the assessment of evidence

reviewed and an appeal against the sentence (Strafberufung) to have the

sentence reviewed (S. 464).

COMPLAINTS

The applicant complains under Article 6 of the Convention that

his conviction for defamation constituted a violation of his rights of

defence as guaranteed under Article 6 para. 3 (c) of the Convention.

He submits that even if his allegations remained unproven, his

conviction for defamation amounted to a violation of his defence rights

as he had made this statement in order to present his personal view of

the events during his questioning by the police.

The applicant complains under Article 6 para. 3 (c) that the

Supreme Court had failed to duly advise the applicant's legal aid

defence counsel on the reasons to be advanced in a plea of nullity.

The applicant claims that due to this failure the legal aid defence

counsel filed an appeal on the question of guilt which was rejected as

formally inadmissible.

The applicant complains that the Regional Court did not respect

the principle of ne bis in idem as guaranteed under Article 4 of

Protocol No. 7. He submits that in fixing the applicant's sentence the

Regional Court took several aggravating circumstances into account

which were a constitutive element of the drug offence itself.

THE LAW

1. The applicant complains in various respects about the alleged

unfairness of the criminal proceedings conducted against him. He

relies on Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.

As the requirements of paragraph 3 of Article 6 (Art. 6-3) are

to be seen as particular aspects of the right to a fair trial

guaranteed by paragraph 1, the Commission will examine these

submissions of the applicant from the angle of paragraph 1 taken

together with the principles inherent in paragraph 3 of Article 6

(Art. 6-3) (Eur. Court HR, Unterpertinger v. Austria judgment of 24

November 1985, Series A no. 110, p. 14, para. 29; Daud v. Portugal

judgment of 21 April 1998, para. 33, to be published in Reports 1998).

Article 6 (Art. 6) of the Convention, insofar as relevant, read

as follows:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

c. to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient means

to pay for legal assistance, to be given it free when the

interests of justice so require"

a. The applicant submits that his conviction for defamation violated

his defence rights guaranteed by Article 6 para. 3 (c) (Art. 6-3-c) of

the Convention as he had made this statement in order to present his

personal view of the events during his questioning by the police.

The Commission recalls that it would be overstraining the concept

of the right of defence of those charged with a criminal offence if it

were to be assumed that they could not be prosecuted, when in

exercising that right, they intentionally arouse false suspicions of

punishable behaviour concerning a witness or any other person involved

in the criminal proceedings (Eur. Court HR, Brandstetter v. Austria

judgment of 28 August 1991, Series A no. 211, p. 23, para. 52).

The Commission notes that the applicant was convicted by the

Regional Court of having wrongly stated during the criminal proceedings

conducted against him for drug trafficking that he had been ill-treated

while in police custody.

Having regard to these circumstances the Commission finds no

reason to depart from the Court's case-law. Accordingly, there is no

appearance of a violation of the applicant's defence rights in this

respect.

b. The applicant submits further that he was not granted effective

legal assistance within the meaning of Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention as the Supreme Court had failed to duly

advise the applicant's legal aid defence counsel on the reasons to be

advanced in a plea of nullity. Due to this failure the legal aid

defence counsel filed an appeal on the question guilt which was

rejected as formally inadmissible.

The Commission recalls that "a State cannot be held responsible

for every shortcoming on the part of a lawyer appointed for legal aid

purposes" (Eur. Court HR, Artico v. Italy judgment of 13 May 1980,

p. 18, para. 36). Article 6 para. 3 (c) (Art. 6-3-c) only requires

that the competent national authorities intervene, if a failure by

legal aid counsel to provide effective representation is manifest or

sufficiently brought to their attention in some other way (Kamasinski

v. Austria judgment of 19 December 1989, p. 33, para. 65).

The Commission notes that the applicant, represented by a legal

aid defence counsel, filed a plea of nullity and an appeal in which,

in a separate section, he does set out an "appeal on the question of

guilt". In his writ the applicant's defence counsel set out various

grounds for having the conviction quashed or the sentence reduced. In

its detailed judgment of 12 December 1995 the Supreme Court dismissed

the applicant's plea of nullity and his appeal (against the sentence)

after having examined the arguments put forward by the applicant's

lawyer. Only the "appeal on the question of guilt" was rejected as

inadmissible as in the proceedings at issue this specific remedy could

not be used (see above "Relevant domestic law").

The Commission cannot find that the mere fact the applicant's

defence counsel had in addition to the correct remedies against the

Regional Court's judgment of 19 April 1994, namely plea of nullity and

appeal, also used an inappropriate remedy in the proceedings at issue

should have prompted the Supreme Court to find that there was a

manifest failure by legal aid defence counsel to provide effective

representation (see Eur. Court HR, Daud v. Portugal judgment, op. cit.,

para. 38). The applicant has not alleged any further shortcoming in

his defence.

Accordingly there is no appearance of a violation of the

applicant's defence rights in this respect.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. Lastly the applicant complains that the Regional Court did not

respect the principle of ne bis in idem as guaranteed under Article 4

of Protocol No. 7 (P7-4). He submits that in fixing the applicant's

sentence the Regional Court took several aggravating circumstances into

account which were a constitutive element of the drug offence itself,

such as the amount of the heroin attempted to be sold and that he had

acted for gain.

Article 4 para. 1 Protocol No. 7 (P7-4-1) reads as follows:

"1. No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same State for

an offence for which he has already been finally acquitted or

convicted in accordance with the law and penal procedure of that

State."

The Commission observes that the applicant has not raised this

issue in his plea of nullity. In this respect the Commission recalls

that in order to have exhausted domestic remedies as required by

Article 26 (Art. 26) of the Convention, an applicant must have

expressly raised before the national authorities the complaint brought

before the Commission (No. 11425/85, Dec. 5.10.87, D.R. 53, p. 76).

However, the Commission need not determine whether or not the applicant

has exhausted domestic remedies because this complaint is, in any

event, inadmissible for the following reasons.

The Commission recalls that the principle of ne bis in idem is

intended to apply where a person has already been finally convicted or

acquitted of an offence and is tried or punished again in respect of

the same facts. The aim of Article 4 Protocol No. 7 (Art. (P7-4) is

to prohibit the repetition of criminal proceedings that have been

concluded by a final decision. That provision does not therefore apply

before new proceedings have been opened (Eur. Court HR, Gradinger v.

Austria judgment of 23 October 1995, Series A no. 328-C, p. 65, para.

53).

In the present case the applicant did not submit that he had

already been finally convicted of the same offence. His complaint

relates rather to the fixing of the sentence within the same

proceedings. Accordingly, Article 4 of Protocol No. 7 (P7-4) does not

apply.

It follows that this part of the application is incompatible

ratione materiae with the provision of the Convention invoked by the

applicant and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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