Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23867/94

by Josef PRINZ

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

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 28 March 1994 by

Josef PRINZ against Austria and registered on 13 April 1994 under file

No. 23867/94;

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

8 March 1996 and the observations in reply as well as further

comments and documents submitted by the applicant between May and

August 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1945, is an Austrian national and resident

at Stein. When lodging his application, he was detained in a

psychiatric hospital at Mauer. He was later transferred to an

institution in Göllersdorf.

The applicant's previous application No. 17844/89 relating to the

alleged unfairness of criminal proceedings was declared inadmissible

in 1991.

A. Particular circumstances of the present case

The facts, as submitted by the parties, may be summarised as

follows.

On 4 October 1993 the Krems Regional Court (Landesgericht),

before which the applicant was represented by official defence counsel,

ordered that he be detained in an institution for mentally deranged

offenders (Anstalt für geistig abnorme Rechtsbrecher), pursuant to

S. 21 para. 1 of the Penal Code (Strafgesetzbuch). The Regional Court

found that the applicant had intimidated numerous persons by threats

of murder, but that he could not be held responsible because he was

suffering from a mental illness. The applicant had, in several letters

addressed to judicial authorities and lawyers, respectively, stated his

intention to murder particular judges and lawyers, mentioning also

either his "list of death" or details of the threatened offence.

In its decision, the Regional Court noted that the applicant had

twelve previous convictions, inter alia of intimidation, coercion,

bodily injury and property offences. The offences at issue in the

pending proceedings had started in the context of civil proceedings,

which had been instituted by the Austrian Attorney General's Department

(Finanzprokuratur), claiming compensation for damages of AS 2,000

caused by the applicant in the context of a burglary. In a judgment

of October 1991, the St. Pölten District Court (Bezirksgericht) had

decided against the applicant. The applicant had filed counter-claims

for compensation in respect of an illness suffered while serving a

prison sentence and had threatened with terrorist attacks. Following

the institution of criminal proceedings against him concerning the

above threat, the applicant commenced addressing written threats of

murder to various persons involved in these criminal proceedings, in

particular judges and lawyers.

Furthermore, having heard two psychiatric experts, the Regional

Court considered that the applicant suffered from a mental illness,

namely paranoia querulans. He had a system of fixed ideas and a

missionary devotion to implement his plans. His mental disturbances,

combined with the further symptoms of aggressiveness, his cruelty and

recklessness entailed a high risk for third persons. The Regional

Court regarded a faculty opinion on these matters as unnecessary,

taking into account that the two experts largely concurred in their

opinions and that there were no contradictions or shortcomings within

the meaning of the relevant provision of the Code of Criminal Procedure

(Strafprozeßordnung).

Moreover, the Regional Court considered that it had not been

required to hear the judges and other victims concerned, as requested

by the applicant. In this respect, the Regional Court observed that

the question of whether these persons had in fact been intimidated was

irrelevant for legal reasons, the offence of intimidation being

committed in case of threats of such a nature as to intimidate third

persons in general, if the offender intended to intimidate. The

Regional Court, having regard to the details stated in the applicant's

various letters, found that his threats of murder were of such a nature

as to intimidate third persons in general, and he had in fact intended

to intimidate the persons concerned. Considering his mental illness,

there was also a risk of further offences of the same kind.

The written judgment was served upon the applicant's official

defence counsel on 29 October 1993.

The applicant, assisted by his official defence counsel, filed

a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court

(Oberster Gerichtshof), challenging the dismissal of his requests for

the taking of further evidence as well as the part of the legal

reasoning and the findings as to his dangerousness in future. He

further lodged an appeal (Berufung). Defence counsel did not file any

grounds of appeal, and did not request that the applicant be permitted

to attend the Supreme Court hearing. On 15 February 1994 the applicant

personally filed submissions with the Supreme Court. According to the

applicant, he also requested the Supreme Court for leave to attend the

hearing of his plea of nullity and appeal, but this request was to no

avail.

On 2 March 1994 the Supreme Court held the hearing on the plea

of nullity and the appeal in the absence of the applicant who was

represented by his official defence counsel. The Supreme Court

rejected the plea of nullity as well as the appeal.

The Supreme Court, in its judgment, found that the rejection by

the trial court of the applicant's requests for the taking of evidence

did not impair the rights of the defence. In particular, the Supreme

Court confirmed the reasoning of the trial court that the applicant had

failed to show any contradictions or shortcomings in the expert

opinions which would be the only reasons to justify a faculty opinion.

Moreover, the question of whether the victims had in fact been

intimidated had been irrelevant. The Supreme Court also confirmed the

legal qualification of the offences committed by the applicant.

Finally, in the context of the applicant's appeal, the Supreme Court

examined his arguments challenging the trial court's findings as to his

dangerousness in future. In this respect, the Supreme Court considered

that the prognosis was reliably founded on the psychiatric expert

opinions and was confirmed by the general impression conveyed by the

applicant's criminal acts.

The decision was received at the registry of the Krems District

and Regional Court on 17 March 1994.

B. Relevant domestic law

a. Placement in an institution for mentally ill offenders

S. 21 of the Austrian Penal Code (Strafgesetzbuch) provides as

follows:

"1. If a person commits an offence punishable with a term of

imprisonment exceeding one year, and if he cannot be punished for

the sole reason that he committed the offence under the influence

of a state of mind excluding responsibility (S. 11) resulting

from a serious mental or emotional abnormality, the court shall

order him to be placed in an institution for mentally ill

offenders, if in view of his person, his condition and the nature

of the offence it is to be feared that he will otherwise, under

the influence of his mental or emotional abnormality, commit a

criminal offence with serious consequences.

2. If such a fear exists, an order for placement in an

institution for mentally ill offenders shall also be made in

respect of a person who, while not lacking criminal

responsibility, commits an offence punishable with a term of

imprisonment exceeding one year under the influence of his severe

mental or emotional abnormality. In such a case the placement

is to be ordered at the same time as the sentence is passed."

b. Plea of nullity and appeal against sentence

A first-instance court judgment given by a Regional Court can be

challenged by a plea of nullity to the Supreme Court on specific

grounds enumerated in S. 281 para. 1 of the Code of Criminal Procedure.

In general, the Supreme Court conducts a public hearing on the plea of

nullity which may also be combined with a public hearing on appeals

against sentence. As regards hearings on a plea of nullity, S. 286 of

the Code of Criminal Procedure 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, second sentence, of the 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 or otherwise if his personal presence appears

necessary in the interest of justice.

COMPLAINTS

1. The applicant complains that both the proceedings before the

Regional Court and the Supreme Court were unfair. He invokes Article 6

paras. 1, 2 and 3 (a), (b), (c) and (d) of the Convention.

a. The applicant complains in particular that he was not promptly

informed about the accusations against him, that he did not receive a

copy of the bill of indictment and was refused a copy of the files.

He also complains that he had no sufficient time to prepare his defence

at the trial and that, following the forced appointment of an official

defence counsel, he could not effectively defend himself in person.

He further considers that the Regional Court incorrectly refused his

requests to hear witnesses.

b. As regards the proceedings before the Supreme Court, the

applicant complains about the failure to permit his presence at the

hearing of his plea of nullity and of his appeal.

2. Finally, the applicant submits that his confinement to an

institution for mentally deranged offenders pending the proceedings

before the Supreme Court and the bad treatment in the institution

amount to inhuman and degrading treatment within the meaning of

Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 March 1994 and registered

on 13 April 1994.

On 29 November 1995 the Commission decided to communicate to the

respondent Government the applicant's complaint that he was not present

at the Supreme Court's hearing on his appeal.

The Government's written observations were submitted on

8 March 1996. The applicant submitted observations in reply and

further comments and documents between May and August 1996.

THE LAW

1. The applicant complains that both the proceedings before the

Regional Court and the Supreme Court were unfair. He invokes Article 6

paras. 1, 2 and 3 (a), (b), (c) and (d)

(Art. 6-1, 6-2, 6-3-a, 6-3-b, 6-3-c, 6-3-d) of the Convention.

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

"1. 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. ...

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

b. to have adequate time and facilities for the

preparation of his defence;

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;

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;

..."

a. The applicant complains in particular that he was not promptly

informed about the accusations against him, that he did not receive a

copy of the bill of indictment and was refused a copy of the files.

He also complains that he had no sufficient time to prepare his defence

at the trial and that, following the forced appointment of an official

defence counsel, he could not effectively defend himself in person.

He also considers that the Regional Court incorrectly refused his

requests to hear witnesses.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur.

Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994,

Series A no. 288, p. 20, para. 61; Klaas v. Germany judgment of

22 September 1993, Series A no. 269, p. 17, para. 29).

In the circumstances of the present case, the Commission, having

regard to all material before it, finds that the applicant's

submissions regarding the preliminary investigations as well as the

trial proceedings before the Regional Court do not disclose any

appearance of a breach of Article 6 (Art. 6). The Commission

considers in particular that the applicant, assisted by official

defence counsel, could effectively ensure his defence at these stages

of the proceedings. Moreover, the Regional Court's decisions to reject

the applicant's requests to take further evidence were reasoned by the

lack of relevance of the circumstances to be proven and cannot be

objected to under Article 6 (Art. 6).

It follows that the applicant's complaints in these respects are

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

b. As regards the proceedings before the Supreme Court, the

applicant complains about the failure to allow his presence at the

hearing concerning both his plea of nullity and his appeal against

sentence.

aa. The Government claim that the applicant's complaint that he could

not attend the Supreme Court hearing of his appeal should be rejected

as inadmissible for non-exhaustion of domestic remedies by virtue of

Articles 26 and 27 (Art. 26, 27) of the Convention. They point out

that he failed to request his attendance at the hearing of his appeal

in accordance with S. 296 para. 2 of the Austrian Code of Criminal

Procedure.

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. Normal recourse should be had by an applicant 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 (cf. Eur. Court HR, Akdivar v. Turkey judgment of 16

September 1996, para. 66, to be published in the Reports of Judgments

and Decisions for 1996). 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 (cf. Akdivar judgment,

op. cit., 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 the

applicant's complaint under Article 6 (Art. 6) that it cannot be

separated.

bb. The Government submit that the hearing before the Supreme Court

did not involve any question which would have necessitated the

applicant's personal attendance.

The applicant objects to the Government's views. He submits

inter alia that his appeal against sentence related to the question of

his confinement to an institution for mentally deranged offenders.

The Commission considers, in the light of the parties'

submissions, that this part of the application 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 applicant's complaint that

he could not attend the Supreme Court hearing 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.

2. As regards the remainder of complaints, the Commission finds

that, even assuming compliance with Article 26 (Art. 26) of the

Convention, the applicant's submissions concerning his confinement to

an institution for mentally deranged offenders pending the proceedings

before the Supreme Court and his general allegations of bad treatment

in this institution, do not disclose any appearance of a violation of

Convention rights, in particular of Article 3 (Art. 3). 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.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint that he was not present at the hearing

before the Supreme Court;

and, unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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PRINZ v. AUSTRIA

PRINZ v. AUSTRIA

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