Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28501/95

by Dimiter POBORNIKOFF

against Austria

The European Commission of Human Rights sitting in private on

14 January 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 21 July 1994 by

Mr Dimiter POBORNIKOFF against Austria and registered on

5 September 1995 under file No. 28501/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

13 May 1997 and the observations in reply submitted by the

applicant on 27 August 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1921, is a German national. He is detained

at the Stein prison in Austria. In the proceedings before the

Commission he is represented by Mr. H. Baumgärtl, a lawyer practising

in Munich.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 8 March 1993 the Public Prosecutor's Office at the Feldkirch

Regional Court filed an indictment charging the applicant with murder.

It was alleged that the applicant, in December 1992, had killed his

wife and had then buried her corpse, of which the head had been cut

off, in a field where it had been discovered in May 1992. It was

further alleged that he had had a mistress, and had run into financial

difficulties as he had rented and furnished an apartment for her and

had maintained her, whereas his wife, who had opposed a divorce, had

owned the spouses' house and a collection of jewellery of considerable

value. In these and the trial proceedings the applicant was represented

by official counsel, Mr. A.

On 1 October 1993 the Feldkirch Regional Court, sitting as a

Court of Assizes (Geschwornengericht), gave judgment. The jury found

the applicant guilty of murder. The court, sitting with the jury,

sentenced him to life imprisonment. It considered as aggravating

circumstances that the applicant had acted for particularly base

motives and had acted cruelly. It found that there were no mitigating

circumstances.

On 2 November 1993 the applicant, still represented by Mr. A.,

filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal

(Berufung). In his plea of nullity he complained about the composition

of the court, the court's failure to put alternative questions to the

jury and about the lack of reasons for the jury's verdict. He also

submitted that there was no factual basis for finding him guilty. In

his appeal he complained in particular that the Regional Court's

judgment did not give sufficient reasons for its determination of the

sentence. As to the aggravating circumstances, it was not clear which

motives had been found to be established and had been evaluated as

being particularly base. Nor did the judgment mention any facts which

would allow the conclusion that he had acted in a cruel manner. As to

possible mitigating circumstances, the applicant complained that the

Regional Court had failed to take his advanced age and the fact that

he had no prior convictions into account. The applicant did not request

to attend the hearing before the Supreme Court.

On 21 December 1993 the Supreme Court (Oberster Gerichtshof)

fixed the hearing date for the applicant's plea of nullity and his

appeal for 27 January 1994. The applicant received a notification,

which stated that his counsel would be summoned to the hearing. As to

the hearing of the plea of nullity, the notification informed him that

he, being detained, could only appear through his counsel. As to the

hearing of the appeal, he would not be brought to the court as the

conditions of S. 296 para. 3 of the Code of Criminal Procedure

(Strafprozeßordung) were not fulfilled.

On 27 January 1994 the Supreme Court after having held a hearing

in absence of the applicant but in presence of his new official defence

counsel, Mr. K., rejected his plea of nullity as well as his appeal.

As regards the appeal, the Court found that the applicant had rightly

claimed as a mitigating circumstance that he had no prior convictions.

Further, given that the manner in which the applicant had killed his

wife had remained unclear, there was no factual basis for finding that

the applicant had acted cruelly and for applying the corresponding

aggravating circumstance. However, the outcome of the proceedings

supported the conclusion that the applicant had acted for particularly

base motives. Attaching particular weight to this aggravating

circumstance, the Supreme Court found that - notwithstanding the above

corrections concerning the basis for determining the sentence - the

sentence of life imprisonment was commensurate with the applicant's

guilt.

B. Relevant domestic law

A first instance judgment given by a Court of Assizes at a

Regional Court can be challenged by a plea of nullity to the Supreme

Court on specific grounds enumerated in S. 345 para. 1 of the Code of

Criminal Procedure (Strafprozeßordnung). The Supreme Court supervises

the correct application of the criminal law, but in so doing is bound

by the jury's findings as to the facts. In general, the Supreme Court

conducts a public hearing on the plea of nullity, which may be combined

with a hearing on appeals against sentence. As regards hearings on a

plea of nullity, S. 286 of the Code of Criminal Procedure, applicable

to nullity pleas arising out of jury trials pursuant to S. 344 of the

Code, provides that if the accused is under arrest, the notice of

hearing given to him shall mention that he may only appear through

counsel.

The sentence as such can be challenged by way of an appeal

against sentence. It may concern both points of law (in particular

whether mitigating or aggravating circumstances have been correctly

taken into account) and factors relating to the assessment of the

sentence. As regards the personal appearance of the accused at appeal

hearings, S. 296 para. 3 provides that the Supreme Court, when deciding

upon an appeal at the public hearing on the plea of nullity, always has

to summon an accused who is not detained. 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 if his personal presence

appears necessary in the interest of justice.

COMPLAINTS

The applicant complains that the Supreme Court held the hearing

on his plea of nullity and his appeal in his absence. He invokes

Article 6 paras. 1 and 3 (c), (d) and (e) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 July 1994 and registered on

5 September 1995.

On 27 February 1997 the Commission decided to communicate the

application.

The Government's written observations were submitted on

13 May 1997. The applicant replied on 27 August 1997 after an extension

of the time-limit set for this purpose.

THE LAW

The applicant complains that the Supreme Court held the hearing

on his plea of nullity and his appeal in his absence. He invokes

Article 6 paras. 1 and 3 (c), (d) and (e)

(Art. 6-1, 6-3-c, 6-3-d, 6-3-e) of the Convention.

Article 6 (Art. 6), so far as relevant, reads as follows:

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

him, everyone is entitled to a fair and public hearing ... by [a]

... tribunal ...

...

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 Government submit that the applicant failed to exhaust

domestic remedies as required by Article 26 (Art. 26) of the

Convention, as he did not request his attendance at the hearing before

the Supreme Court in accordance with S. 296 para. 3 of the Austrian

Code of Criminal Procedure. Further, as regards compliance with the six

months time-limit laid down in Article 26 (Art. 26), the Government

voice doubts as to whether the applicant has sufficiently raised the

complaint at issue in his first communication to the Commission, dated

21 July 1994.

The applicant submits that his official defence counsel, despite

the fact that he repeatedly expressed his wish to be heard personally

by the Supreme Court, did not inform him of the possibility to make a

request to this effect. The applicant contests the Government's view

as regards compliance with the six months time-limit.

Under Article 26 (Art. 26) of the Convention the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law, and within a period of six months from the date on which the final

decision was taken.

The Commission recalls that in order to exhaust domestic remedies

an applicant should have recourse to remedies which are available and

sufficient to afford redress in respect of the breaches alleged.

Article 26 (Art. 26) also requires that any procedural means that might

prevent a breach of the Convention should have been used (Eur. Court

HR, Akdivar v. Turkey judgment of 16 September 1996, Reports of

Judgments and Decisions 1996-IV, No. 15, p. 1210, para. 66). In this

context, it has been recognised that Article 26 (Art. 26) must be

applied with some degree of flexibility and without excessive

formalism; it is essential to have regard to the particular

circumstances of each individual case (Akdivar judgment, loc. cit., p.

1211, para. 69).

In the present case, the Commission considers that the question

whether the applicant ought to have requested leave to attend the

hearing of his appeal is so closely related to the merits of his

complaint that it cannot be dealt with separately.

As regards compliance with the six months rule, the Commission

notes that the Supreme Court gave judgment on 27 January 1994. The

applicant, in his letter of 21 July 1994, complained that the evidence

adduced against him did not suffice to carry a finding of guilt but

also claimed that the proceedings were unfair in that the Supreme Court

rejected his plea of nullity and his appeal in his absence. In these

circumstances, the Commission finds that the applicant has complied

with the six months time-limit under Article 26 (Art. 26) of the

Convention.

b. As to Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the

Convention, the Government submit that these provisions do not require

the applicant's presence at the hearing of his plea of nullity as the

Supreme Court is bound by the Assize Court's findings on the facts and

only has to determine questions of law. Further, the Government argue

that the hearing of the applicant's appeal did not involve any question

which would have necessitated that his personal attendance be ordered

ex officio.

The applicant contests the Government's view. As to the hearing

of his plea of nullity he submits in particular that his official

defence counsel was replaced by another official defence counsel

shortly before the hearing. He claims that the latter failed to contact

him and that he was, therefore, not duly represented before the Supreme

Court. As to the hearing of his appeal he submits that the Supreme

Court, in accordance with S. 296 para. 3 of the Code of Criminal

Procedure, would have been required to summon him in the interest of

justice as the proceedings involved an evaluation of his personality

and character.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application. The Commission concludes,

therefore, that the application is not manifestly ill-founded, within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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POBORNIKOFF v. AUSTRIA

POBORNIKOFF v. AUSTRIA

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