Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20713/92

by J. K.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 May 1992 by

J. K. against Austria and registered on 29 September 1992 under file

No. 20713/92;

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

of Procedure of the Commission;

Having regard to the Commission's decision of 7 April 1994 to

declare the application partly inadmissible and to communicate and

adjourn the remaining complaint pending the Court's judgment in the

case of Bulut v. Austria;

Having regard to the judgment of the Court in the case of Bulut

v. Austria (Eur. Court. H.R., Bulut judgment of 22 February 1996,

Reports 1996).

Having regard to the Government's letter of 9 May 1996 and the

applicant's letter of 9 May 1996.

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1943. He has

formerly been a police officer. Before the Commission he was initially

represented by Mr. M. Tuschl, residing in Vienna, and is now

represented by Mr. R. Danner, residing in Krems.

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

summarised as follows.

A. Particular circumstances of the case

On 8 January 1990 the applicant was taken into detention on

remand. He was suspected of having taken heroin from a police deposit

of confiscated drugs and sold it.

On 16 February 1990 the applicant was released, but from 5 March

to 16 March 1990 and from 13 April to 16 April 1990 he was again taken

into detention on remand.

On 26 September 1990 the Vienna Regional Court (Landesgericht),

presided by Judge K., convicted the applicant of abuse of authority,

handling of drugs and false testimony and sentenced him to 3 years

imprisonment. The Regional Court found that the applicant, who

investigated drug cases had on 15 August 1989 taken heroin from a

deposit of seized drugs and handed it over to V.J., a drug dealer known

to him, who sold the heroin. Notwithstanding the secret message from

Q.H. found in the course of the search of the applicant's office the

applicant had denied in his capacity as a witness at the trial of Q.H.,

that he had received such a message

On 31 January 1991 the Supreme Court partly upheld the

applicant's plea of nullity and quashed the Regional Court's judgment

insofar as it concerned the conviction of abuse of authority and

handling of drugs because the Regional Court had not heard H.H. as a

witness as requested by the defence.

Proceedings were resumed before the Regional Court, presided over

by Judge St. On 14 June 1991 the applicant was convicted again of

abuse of authority and handling of drugs and sentenced to 3 years

imprisonment. This time H.H. was heard as a witness at the trial.

On 8 October 1991 the applicant lodged a plea of nullity and an

appeal. In his plea of nullity, relying on Section 281 paras. 5 and

5a of the Code of Criminal Procedure (Strafprozeßordnung), he

complained about the Regional Court's assessment of evidence. In

particular, he raised doubts as to the credibility of V.J., the main

witness for the prosecution, and complained that, contrary to what the

Regional Court had stated, this witness had given different versions

of the events in the course of the proceedings.

On 23 January 1992 the Supreme Court dismissed the applicant's

plea of nullity under Section 285d para. 1 sub-para. 1 and 2 of the

Code of Criminal Procedure without an oral hearing. The Supreme Court

held that the assessment of evidence could only be attacked if the

conclusions drawn by a court were illogical. It was not the Supreme

Court's task to verify the material correctness of the Regional Court's

findings. As regards the alleged discrepancies in the successive

statements of the witness V.J., the Supreme Court found that the

Regional Court had correctly assumed that they only concerned side

issues but not the essential facts of the case. In any event, the

applicant's allegations did not find any support in the file.

On 17 March 1992 the Vienna Court of Appeal, after an oral

hearing, dismissed the applicant's appeal.

B. Relevant domestic law

Section 281 para. 1 of the Code of Criminal Procedure (Straf-

prozeßordnung) provides for the specific grounds on which a plea of

nullity may be made. These include:

"5. if the judgment of the trial court in respect of decisive

facts is unclear, incomplete or self-contradictory ...

5a. if substantial doubts on the correctness of the decisive

facts on which the decision on the guilt is based arise from the

file."

Section 285a para 2 of the Code of Criminal Procedure provides:

"The court of first instance at which a plea of nullity against

the final judgment has been lodged has to reject this plea:

2. if at the giving of notice of the plea of nullity or its

presentation one of the grounds for nullity as mentioned in

Section 281 para. 1 (1 to 11) has not been indicated clearly, in

particular if the circumstances to which the ground of nullity

relates are not referred to expressly or at least by a clear

indication."

Section 285d para. 1 of the Code of Criminal Procedure provides:

"During the private deliberations, an appeal on grounds of

nullity may be rejected immediately:

1. if it ought to have been rejected by the court at first

instance under Section 285 (a) ...,

2. if it is based on the grounds of nullity enumerated in

Section 281 para. 1 (1-8 and 11) and if the Supreme Court

unanimously finds that the complaint should be dismissed as

manifestly ill-founded without any need for further

deliberation."

COMPLAINT

The applicant's remaining complaint under Article 6 para. 1 of

the Convention concerns the lack of an oral hearing before the Supreme

Court on his plea of nullity.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 May 1992 and registered on

29 September 1992.

On 7 April 1994 the Commission decided to communicate the

applicant's complaint regarding the lack of an oral hearing in the

proceedings on his plea of nullity before the Supreme Court to the

respondent Government and declared inadmissible the remainder of the

application. At this stage the Commission did not request the parties

to comment on the admissibility and merits of the remaining complaint

as it decided to await the outcome of the case of Bulut v. Austria then

pending before the European Court of Human Rights.

On 22 February 1996 the European Court of Human Rights gave its

judgment in the case of Bulut v. Austria (Eur. Court. H.R., Bulut

judgment of 22 February 1996, Reports 1996).

On 17 April 1996 the Commission invited the parties to submit the

comments they wished to make in the light the above judgment of the

European Court of Human Rights.

On 9 May 1996 the Government informed the Commission that it did

not intend to make any submission. On the same day the applicant

informed the Commission that he wished to pursue his application.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the Supreme Court did not hold a hearing on his plea

of nullity.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar 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 an

independent and impartial tribunal established by law."

The Commission recalls that the manner of application of

Article 6 (Art. 6) to proceedings before appellate courts depends on

the special features of the proceedings involved; account must be taken

of the entirety of the proceedings in the domestic legal order and of

the role of the appellate court therein (Eur. Court H.R., Kerojärvi

judgment of 19 July 1995, Series A no. 322, p. 15, para 40 with

further references). Provided that there has been a public hearing at

first instance, the absence of "public hearing" at second instance may

be justified by the special features of the proceedings at issue. Thus

proceedings for leave to appeal or proceedings involving only questions

of law, as opposed to questions of fact, may comply with the

requirements of Article 6 (Art. 6) even where the appellant was not

given an opportunity of being heard in person by the appeal or

cassation court (Eur. Court H.R., Monnell and Morris judgment of 2

March 1987, Series A no. 115, p. 22, para. 58).

In the present case the applicant had a public hearing at first

instance. On 23 January 1992 the Supreme Court rejected the

applicant's plea of nullity in which he had relied essentially on

Sections 281 paras. 5 and 5a of the Code of Criminal Procedure. The

Supreme Court based its decision on Section 285d para. 1 sub-para. 1

and 2 of the Code of Criminal Procedure.

In the case of Bulut v. Austria, which also concerned the

rejection of a plea of nullity by the Supreme Court in proceedings

under Section 285d para. 1 sub-para. 1 and 2 of the Code of Criminal

Procedure, the European Court of Human Rights has found as follows:

"In the instant case, the Court notes that a public hearing was

held at first instance. It further notes that the Supreme Court

rejected Mr. Bulut's appeal pursuant to Article 285d para. 1 of

the Code of Criminal Procedure ... Under this provision the

Supreme Court, in summary proceedings, may refuse further

consideration of an appeal which it unanimously regards as

manifestly lacking any merit. The nature of the review can

therefore be compared to that of proceedings for leave to appeal.

Moreover, the Court is not satisfied that the grounds of nullity

under Article 281 para. 1 (4) and (5) if the Code of Criminal

Procedure, as formulated by the applicant ..., raised questions

of fact bearing on the assessment of the applicant's guilt or

innocence that would have necessitated a hearing. They

essentially challenged the trial court's assessment of the

available evidence, a challenge which the Supreme Court

considered inadmissible" (Eur. Court H.R., Bulut judgment of

22 February 1996, para. 42, Reports of Judgments and decisions

for 1996).

The Commission finds that the above Court's reasoning also

applies to the present case. Therefore, there is no appearance of a

violation of the applicant's rights under Article 6 para. 1

(Art. 6-1) of the Convention because of the lack of a hearing before

the Supreme Court.

It follows that the applicant's remaining complaint is manifestly

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

Convention.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the remaining complaint about the lack of

a hearing before the Supreme Court in the proceedings on the

applicant's plea of nullity.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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J.K. v. AUSTRIA

J.K. v. AUSTRIA

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