AS TO THE ADMISSIBILITY OF

                      Application No. 25878/94

                      by Michael Edward COOKE

                      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 12 August 1994 by

Micheal Edward COOKE against Austria and registered on 7 December 1994

under file No. 25878/94;

     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

     1 April 1996 and the observations in reply submitted by the

     applicant on 10 July 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1935, is a British national.  When lodging

his application, he was detained in a prison at Garsten, Austria.  In

the proceedings before the Commission he is represented by Ms. N. Mole,

a lawyer practising in London.

A.   Particular circumstances of the case

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

follows.

     In the early evening of 10 March 1993 the applicant was arrested

at Alpbach, Austria, on the suspicion of having killed, shortly before,

his friend Ms. W. with whom he had come to Austria for holidays.

Subsequently, the Duty Judge ordered the preparation of a psychiatric

expert opinion and appointed Prof. P. and further appointed an

interpreter for the questioning of the applicant.  At about 11 p.m.,

the applicant was questioned in presence of a public prosecutor and a

duty judge.  He refused to answer any questions unless a lawyer and a

diplomatic representative of his country were present.  The applicant

was informed that at the pre-trial stage he was not entitled to a

defence counsel.

     On 11 March 1993 Prof. P. started examining the applicant.  The

applicant was questioned by the Investigating Judge on 12 March 1993.

On this occasion, the applicant again complained about not having had

an opportunity to consult a defence counsel.  At the end of the

questioning, the Investigating Judge ordered that preliminary

proceedings be instituted against the applicant on the suspicion of

murder within the meaning of S. 75 of the Penal Code, and also ordered

his detention on remand.  The same day a reconstruction of the events

was conducted at the scene of the crime, i.e. a hotel at Alpbach,

apparently in the absence of the applicant.

     On 12 March 1993 the Austrian press reported on the events of

10 March 1993.

     On 20 April 1993 the Innsbruck Regional Court, having heard the

applicant and following his repeated request, decided that he be given

an English speaking official defence counsel for the whole duration of

the proceedings.  On 22 April 1993 the Tyrolian Bar Association

(Rechtsanwaltskammer) appointed Mr. P., a lawyer practising in

Innsbruck, as the applicant's defence counsel.

     On 6, 7 and 19 May 1993 the applicant was further questioned by

the Investigating Judge in the presence of the interpreter, but in the

absence of his defence counsel.  A further questioning took place on

28 June 1993.  Moreover, on 1 July 1993 Prof. P., having continued the

applicant's examination in May 1993, completed his expert opinion.

     On 16 August 1993 the Innsbruck Public Prosecutor's Office filed

an indictment charging the applicant with murder under S. 75 of the

Penal Code (Strafgesetzbuch).  The English translation of the bill of

indictment was completed on 30 August 1993.

     On 7 September 1993 the Innsbruck Court of Appeal (Oberlandes-

gericht) ordered the applicant's continued detention on remand.

     In October 1993 the Regional Court dismissed the applicant's

request for the preparation of a second expert opinion as regards his

criminal responsibility.

     On 22 October 1993 the applicant's defence counsel received

copies of the English translations of the records on the applicant's

questioning.  The English translation of Prof. P.'s expert opinion was

completed on 27 October 1993 and subsequently forwarded to the

applicant's counsel.  Counsel's request for a translation of the whole

file was dismissed, an appeal was to no avail.  The applicant, assisted

by an interpreter, consulted the file shortly before the date of the

trial, which had been listed for 17 and 18 November 1993.

     On 10 November 1993 the Regional Court dismissed the applicant's

requests to postpone the trial and to refer the matter back to the

Investigating Judge for further investigations.

     On 17 November 1993 the applicant's trial commenced before a

Court of Assizes (Geschworenengericht) of the Innsbruck Regional Court

(Landesgericht), sitting with a jury.  The applicant was assisted by

his official defence counsel Mr. P.  An interpreter was present.

     At the hearing, the Court heard the applicant's statements, the

testimony of several witnesses, inter alia the receptionist and the

owner of the hotel concerned, and the explanations of the medical

experts Prof. P and Dr. U.  It follows from the trial records that

questions were put to the witnesses by the Court, the Public

Prosecutor, the applicant's defence counsel and the expert Prof. P.

According to the applicant, only the questions to the applicant and two

British witnesses as well as their statements were translated, while

the statements made by the Austrian witnesses as well as the experts

remained untranslated.

     Moreover, the applicant's counsel requested the taking of further

evidence.  These requests were dismissed for the following reasons.

The Court found in particular that the request to take evidence as to

Ms. W.'s personality and behaviour in the past related to an irrelevant

issue, and that her behaviour towards the applicant could be

established on the basis of his own statements.  Furthermore, the

defence had failed to show any shortcomings in the psychiatric expert

opinion, which would justify the preparation of a second expert opinion

as to his criminal responsibility.  The question of the applicant's

state of mind following the offence could not be clarified by hearing

witnesses but only on the basis of an expert opinion.  As regards the

further questions, in particular relating to the applicant's general

situation and conduct as well as his relation towards Ms. W., the

Court, considering the applicant's own statements sufficient and

trustworthy, found a further hearing of witnesses unnecessary.

     At the end of the hearing, the Court put five questions to the

jury: the first - main - question related to the offence of murder, the

following three - subsidiary - questions concerned the offences of

unpremeditated homicide, intentionally inflicted grievous bodily harm

resulting in death and grievous bodily harm resulting in death,

respectively, the fifth - main - question aimed at the applicant's

criminal responsibility.  The Court's directions to the jury covered

the jury's duties and the general legal notions of intent and

negligence.  As regards the questions, the jury was inter alia directed

that the offence of murder (Mord) consisted in the intentional killing

of a human being and that premeditated homicide (Totschlag) was the

intentional killing of a human being in a comprehensible state of

emotion (in einer allgemein begreiflichen heftigen Gemütsbewegung).

     On 18 November 1993 the jury, by a unanimous verdict, found the

applicant guilty of murder.  The jury also unanimously found that the

applicant was criminally responsible.  According to the record on their

deliberations, the jury relied in particular on the testimony of the

hotel owner as well as on the expert opinion of Prof. P.

     The Court sentenced the applicant to twenty years' imprisonment.

In fixing the sentence, the Court considered as a mitigating

circumstance that the applicant's capacity to act had been diminished

(verminderte Dispositionsfähigkeit), although his offence had not been

committed upon provocation and did not obviously contradict his

previous behaviour.  Moreover, he had not made a repentant confession

(reumütiges Geständnis), and his statements regarding the offence had

not essentially contributed to the establishment of the truth.

     The applicant, assisted by his official defence counsel Mr. P.,

filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court

(Oberster Gerichtshof), challenging the order of questions put to the

jury, the dismissal of his requests for the taking of further evidence

as well as the finding of the jury.  He further lodged an appeal

(Berufung) complaining about the length of the sentence, referring to

further mitigating circumstances.

     The Public Prosecutor's Office (Staatsanwaltschaft) also appealed

against the sentence, requesting that a life sentence be imposed.

     On 26 January 1994 the Supreme Court issued a summons for the

hearing on the plea of nullity and the appeals, indicating that, at the

hearing on the plea of nullity, the applicant, being incarcerated,

could only appear through his official defence counsel and that at the

hearing of the appeals he would not be brought to court as the

conditions of S. 296 para. 3 of the Code of Criminal Procedure were not

satisfied.

     On 3 February 1994 the Vienna Bar Association, upon the request

of the senior partner of counsel Mr. P., appointed Mr. S. as the

applicant's official defence counsel for the purposes of the

proceedings before the Supreme Court.  The applicant received the

certificate of appointment on 10 February 1994.  The applicant

requested the Supreme Court to be represented by Mr. P. at the hearings

and to attend them as an observer.  On 16 February 1994 the Innsbruck

Regional Court, upon instruction by the Supreme Court, informed the

applicant that the conditions of S. 296 para. 3 of the Code of Criminal

Procedure were not satisfied, and that attendance as observer was not

possible.

     On 17 February 1994 the Supreme Court held the hearing on the

plea of nullity and the appeals in the absence of the applicant.  He

was represented by his new official defence counsel Mr. S.  The Supreme

Court rejected the plea of nullity as well as both appeals.

     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 in detail the reasoning of the trial court that the

requests concerned partly irrelevant issues or requested the hearing

of witnesses on issues which required expert evidence.  Moreover, the

applicant had failed to show the necessity of a second expert opinion

as to his criminal responsibility.

     The Supreme Court also dismissed the applicant's argument that

the order of questions put to the jury, namely as a first - main -

question whether he had committed murder and as second - subsidiary -

question whether he had committed premeditated homicide, had been

incorrect.  In this respect, the Supreme Court considered that the main

question had to aim at the charged offence, while the subsidiary

questions should provide an opportunity for a different legal

qualification.  Murder and premeditated homicide were independent

offences which differed regarding the mental elements.

     The Supreme Court further found that the findings of the jury

could not be objected to.  In particular, the applicant's allegation

of a discrepancy in the statements of one of the main witnesses was

unfounded and, in any event, expert evidence had been taken on the

relevant issue, namely his mental state at the time of the offence.

     As regards the appeals, the Supreme Court noted that the

applicant's own statements appeared to indicate that he quickly lost

his self-control in contacts with women.  Nevertheless, there was no

sufficient reason to exclude the mitigating circumstance of a previous

reputable conduct of life.  The Supreme Court further, on the basis of

the file, considered that there had been no provocation and that there

were no indications for an exceptional mental or emotional excitement.

Except for the further mitigating circumstance, there was no other

reason to amend the evaluation regarding the applicant's character or

his mental state at the time of the offence, or his motive.  Taking all

circumstances into account, the sentence imposed by the trial court

appeared appropriate.

     The decision was received at the Innsbruck Regional Court on

3 March 1995 and by the applicant's defence counsel Mr. P. on

10 March 1994.

B.   Relevant domestic law

a.   Official defence counsel

     S. 39 of the Code of Criminal Procedure provides that in all

criminal cases the accused has the right to have a defence counsel whom

he may choose among the persons included in a list kept by the Court

of Appeal.  S. 41 provides inter alia that if the person charged with

a criminal offence is unable to bear the costs of his defence, the

court shall at his request decide that he will be given a defence

lawyer whose costs he will not have to bear if and in so far as this

is necessary in the interests of justice, in particular the interests

of an appropriate defence.  According to S. 42 para. 2, the court,

having decided to assign a defence counsel, shall notify the Bar

Association competent for the area in which the court is situated so

that a practising lawyer can be appointed as defence counsel.  The

replacement of a defence counsel in the course of the proceedings can

take place upon motion by the accused (S. 44 para. 2 of the Code of

Criminal Procedure, S. 45 of the Practising Lawyers Act (Rechtsanwalts-

ordnung)), or upon request of the lawyer concerned, inter alia, if the

representation requires activities outside the area of the first

instance court where he has his office.

b.   Plea of nullity and appeal against sentence

     A first-instance court 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.  The Supreme Court's task is mainly to control the

acts of the bench and the presiding judge of the Court of Assizes

examining, in particular, whether the trial has been conducted in a

manner which complies with fundamental procedural principles, whether

the right questions have been put and the right directions given to the

jury.  The Supreme Court may only verify whether the jury has provided

unclear, incomplete or contradictory answers to the questions put to

it.  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 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, applicable to nullity pleas

arising out of trials by jury 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, 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

     The applicant complains that both the proceedings before the

Court of Assizes and the Supreme Court were unfair.  He invokes

Article 6 paras. 1, 2 and 3 (a), (b), (c), (d) and (e) of the

Convention.

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

informed about the nature and cause of the accusations against him.

He states that while on 12 March 1993 an interpreter informed him that

preliminary proceedings were instituted against him on the charge of

murder, the exact nature of this charge was not explained in detail and

that his requests for a translation of the relevant legal provisions

remained unsuccessful.

b.   He further submits that his absence at the reconstruction on

12 March 1993 was in breach of the principle of equality of arms.

c.   The applicant also complains that, despite his earlier requests,

the appointment of an official defence counsel was ordered only on

20 April 1993.

d.   Moreover, he considers that the failure to provide translations

of documents promptly impaired the preparation of his defence and his

right to the free assistance of an interpreter.  In this respect, he

also complains about the lack of a full and continuous interpretation

of the trial before the Court of Assizes.

e.   In addition, the applicant considers that the reporting in the

Austrian media, in particular reports in the press as well as a short

report in the public broadcasting at the evening of the first day of

his trial, prejudiced the fairness of the proceedings and the

impartiality of the jury.

f.   As regards the taking of evidence by the Court of Assizes, he

complains that, at the trial, his requests for the taking of further

evidence were dismissed.  He also submits that the Prosecutor's Office,

in the bill of indictment, had relied on the statements of two persons

which he could not question at the trial.

g.   According to the applicant, the order of questions put to the

jury infringed both his right to a fair trial and the presumption of

innocence.

h.   As regards the proceedings before the Supreme Court, he complains

about the failure to allow his presence at the hearing of his plea of

nullity and of the appeals against sentence.  As regards the nullity

plea, he points out that the new official defence counsel Mr. S. had

been appointed only shortly before the hearing concerned and that there

had been no communication between him and counsel before the hearing.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 12 August 1994 and registered

on 7 December 1994.

     On 29 November 1995 the Commission decided to communicate to the

respondent Government the applicant's complaint that he was not

present, and was not effectively defended, at the hearing before the

Supreme Court.

     The Government's written observations were submitted on

1 April 1996, after an extension of the time-limit.  The applicant

submitted observations in reply on 10 July 1996.

     The applicant was granted legal aid.

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), (d) and (e)

(Art. 6-1, 6-2 , 6-3-a, 6-3-b, 6-3-c, 6-3-d, 6-3-e) 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;

           e.    to have the free assistance of an interpreter if he

     cannot understand or speak the language used in court."

2.   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).

3.   As regards the preliminary stage of the criminal proceedings

against him and the trial before the Court of Assizes, the applicant

complains in particular that he was not promptly informed about the

accusations against him, that he was absent at a reconstruction, that

official defence counsel was appointed belatedly, that there was no

prompt translation of relevant documents and full interpretation at the

trial as well as that the reporting in the Austrian media adversely

affected the trial.  He further complains about the taking of evidence

and the order of questions put to the jury.

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

regard to all material before it and assuming compliance with

Article 26 (Art. 26) of the Convention, finds that the applicant's

submissions regarding the preliminary investigations as well as the

trial proceedings before the Court of Assizes do not disclose any

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

     The Commission, having regard to the case-law on the information

to be given to a foreign accused (cf. Eur. Court HR, Kamasinski v.

Austria judgment of 19 December 1989, Series A no. 168, pp. 36-37,

para. 79), notes in particular that when questioned at the early

investigation stage the applicant was informed that he was suspected

of murder, and refers in particular to the decision of the

Investigating Judge of 12 March 1993 to institute preliminary

proceedings.  When the applicant was questioned, interpretation took

place.  Furthermore, the bill of indictment was translated into English

and made available to the applicant apparently end of August or

beginning of September 1993, leaving sufficient time for the applicant

to acquaint himself with the details of the charge against him.

Moreover, since 22 April 1993 the applicant was assisted by an English

speaking defence counsel.

      The Commission further finds that the applicant failed to show

that, assisted by defence counsel, he could not duly challenge any

shortcomings or any erroneous conclusions drawn from the reconstruction

at the trial.   Moreover, there is nothing to show that the appointment

of his defence counsel on 22 April 1993, i.e. about six weeks after his

arrest and several months before both the indictment and the trial,

rendered the whole of the proceedings unfair.

     As regards the interpretation issues, the Commission notes that

there was some delay in forwarding to the applicant translations

regarding the interviews at the pre-trial stage and that his request

for a full translation of the whole file was dismissed.  However, the

applicant could also consult the files, assisted by an interpreter, and

he was assisted by an English speaking defence counsel.  At the trial,

the applicant did not complain about an allegedly insufficient

interpretation.  It follows from the trial records that his defence

counsel took actively part in the questioning of the witnesses.  In

these circumstances there is no indication that the applicant could not

effectively exercise his defence rights (cf. Eur. Court HR, Luedicke,

Belkacem and Koç v. Germany judgment of 28 November 1978, Series A

no. 29, p. 20, para. 48; Kamasinski judgment, op. cit., p. 35,

para. 74, and  p. 38, para. 83; and, mutatis mutandis, Stanford v. the

United Kingdom judgment of 23 February 1994, Series A no. 282-A,

pp. 10-11, paras. 26-31).

     As regards the reporting on the applicant's case in the Austrian

media, the Commission finds no particular circumstances to conclude

that the fairness of the proceedings was adversely affected

(cf. No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86).  In this respect, the

Commission also notes that, at the trial, the applicant did not

challenge the jury as a whole, or individual members, for lack of

impartiality.

     The Commission considers that the Court of Assizes' taking of

evidence does not disclose any appearance of a breach of Article 6

(Art. 6).  In particular, the Court of Assizes, on the basis of the

applicant's own statements, did not regard as necessary to hear further

witnesses or considered that relevant expert evidence had already been

obtained.  As to the order of questions put to the jury, the

Commission, taking into account the Supreme Court's reasoning as to the

independent nature of the offences "murder" and "premeditated homicide"

under Austrian law and the procedural requirement that the first and

main question should correspond to the charge against the accused,

finds no indication that the applicant's rights under Article 6

(Art. 6) were infringed.

     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.

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

applicant complains about his absence at the hearings concerning both

his plea of nullity and his appeal against sentence and the allegedly

belated appointment of counsel for these hearings.

a.   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.

b.   The Government submit that the hearings 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 defence counsel for these hearings was appointed

shortly before.  Moreover, the Public Prosecutor's Office, in its

appeal, had requested an increase of his sentence to life imprisonment,

whereas he had applied for a reduction of his sentence.

     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 hearings 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 ADMISSIBLE, without prejudging the merits of the case,

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

     before the Supreme Court;

     DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber