Lexploria

AS TO THE ADMISSIBILITY OF

SUR LA RECEVABILITÉ

Application No. 22961/93

by Ismail ILHAN

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 21 October 1993

by Ismail ILHAN against Austria and registered on 19 November 1993

under file No. 22961/93;

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

28 June 1995 and the observations in reply submitted by the

applicant on 16 August 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1960, is a Turkish national, residing in

Feldkirch. In the proceedings before the Commission he is represented

by Mr. F. Graf, a lawyer practising in Feldkirch.

A. Particular circumstances of the case

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

summarised as follows.

On 3 November 1992 the Feldkirch District Court (Bezirksgericht),

upon the Public Prosecutor's demand for a stated penalty (Strafantrag)

issued a penal order (Strafverfügung) against the applicant in summary

proceedings without trial. The Court found that the applicant, on

17 August 1992, had, in passing a parked vehicle, driven on the left

side of the road with his car and had collided with a motorcyclist, who

had fallen down and had suffered a brain concussion. The Court

convicted the applicant of having negligently caused bodily harm

(fahrlässige Körperverletzung) and imposed a fine of 50 daily rates of

AS 100 each (in case of default 25 days' imprisonment).

On 26 January 1993, upon the applicant's objection (Einspruch),

a trial was held before the Feldkirch District Court. The applicant did

not appear. The Court, referring to S. 459 of the Code of Criminal

Procedure (Strafprozeßordnung), decided that the trial be held in the

absence of the applicant. It heard H., who had been injured in the

traffic accident, as a witness. H. stated that the applicant, in order

to pass a parking car, had driven on the left side of the road.

Following the trial, the Court passed a judgment in absentia

(Abwesenheitsurteil), convicting the applicant of having negligently

caused bodily harm and imposing a fine of 50 daily rates of AS 100 each

(in case of default 25 days' imprisonment). However, it suspended the

sentence on probation. The Court referred to the police investigations,

in particular to the applicant's statement before the police, noting

that he himself had admitted that he had driven too far on the left

side of the road, and to the corroborating statement of the witness H.

On 22 March 1993 the applicant lodged an objection (Einspruch)

against the judgment in absentia. He submitted in particular that the

trial should not have been conducted in his absence, as he had not been

duly summoned. In these and the following proceedings the applicant was

represented by counsel.

Thereupon, the Feldkirch District Court fixed 18 May 1993 as date

for rehearing the case. The applicant was summoned by a standard-form

letter entitled 'Personal summons of the accused to trial'. The

standard text informed him that he was to be heard by the court as an

accused and was, therefore, requested to appear at the trial at the

date and place indicated. Further the following sentence was added to

the standard text: 'Should you fail to appear at the trial, your appeal

will be void and the judgment in absentia will become final'. At the

bottom of the page, the standard-form letter contained some

instructions. They informed the applicant, inter alia, that he had the

right to appoint a counsel and that, should he fail to appear at the

trial, the hearing would be conducted in his absence or he would be

brought before the judge by the police.

On 18 May 1993 the Feldkirch District Court, in presence of the

applicant's counsel, noted that the applicant himself had not appeared

and decided on the basis of S. 478 para. 3 of the Code of Criminal

Procedure that the applicant's objection against the judgment in

absentia was to be considered void and that this judgment become final.

It considered in particular that the applicant had been duly summoned

for the trial of 18 May 1993 and that the summons had drawn his

attention to the consequences of his absence.

On 8 July 1993 the applicant filed an appeal (Beschwerde) against

this decision. He submitted in particular that it had not been

absolutely clear to him that he had to appear personally before the

court. Although the summons requested him to appear at the trial,

neither the sentence added to the standard text, nor the instructions,

requested that he appear in person. On the contrary, the said

instructions informed him that he had the right to appoint a counsel

and that, should he fail to appear, the trial might be conducted in his

absence or he might be brought before the judge by the police. Thus,

he could assume that the presence of his counsel at the trial would be

sufficient. Moreover, being a Turkish national, he was not familiar

with legal German. Finally, the applicant complained that S. 478

para. 3 of the Code of Criminal Procedure was contrary to the

requirements of a fair trial as it discriminated against an accused who

had already been convicted in absentia.

On 16 July 1993 the applicant, on the Feldkirch Regional Court's

(Landesgericht) request, submitted the original of the summons

at issue.

On 21 July 1993 the Feldkirch Regional Court, dismissed the

applicant's appeal. The court found that the summons had been duly

served on the applicant and had explicitly drawn his attention to the

consequences of his absence at the trial. It followed from the title

of the summons and the additional sentence as well as from the nature

of a summons that he was requested to appear personally before the

court. Moreover, he had not been prevented from doing so by

circumstances beyond his control. As regards the applicant's complaint

that S. 478 para. 3 of the Code of Criminal Procedure was

discriminatory, the court noted that the accused had to be warned

explicitly about the consequences of his absence. Thus, the sanction

provided for in the contested provision was objectively justified and

was, therefore, in accordance with the requirements of a fair trial.

B. Relevant domestic law

S. 459 of the Code of Criminal Procedure (Strafprozeßordnung)

deals with the case in which the accused, who has been duly summoned,

does not appear in proceedings before the district court. It provides

that the judge, if he deems it necessary to hear the accused, may order

that he appear personally or, if the accused has already been ordered

to do so, that he be brought before the court. Otherwise, the judge may

start the proceedings, take evidence and, after having heard the

prosecutor, give his judgment, which has to be served on the accused.

According to S. 478 the accused, who has been convicted in

absentia in accordance with S. 459, can lodge an objection (Einspruch)

within two weeks after service of the judgment, if he has not been duly

summoned, or if he has been prevented to appear by circumstances beyond

his control (paragraph 1). In case the district court finds that the

objection is well-founded, it has to fix a date for a new trial. If the

accused does not appear, his objection is to be considered void and the

contested judgment in absentia becomes final (paragraph 3).

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the Feldkirch Regional Court's decision of 21 July 1993 prevented him

from defending himself in person or through his counsel. He submits in

particular that, as a Turkish national, he is not familiar with legal

German and that the summons did not explicitly request him to appear

personally at the trial of 18 May 1993. Thus, he could assume that it

was sufficient that his counsel be present. Finally, he submits that

S. 478 para. 3 of the Code of Criminal Procedure discriminates against

an accused, who has already been convicted in absentia as compared to

an accused, where this has not yet been the case. In particular he

points out that a full rehearing should take place, if counsel for the

defence is present, in order to guarantee that requests for the taking

of evidence can be made and that the criminal charge be examined in

regular proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 October 1993 and registered

on 19 November 1993.

On 6 April 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 28 June

1995, after an extension of the time-limit fixed for that purpose. The

applicant replied on 16 August 1995.

THE LAW

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

Convention that, in criminal proceedings against him, he was prevented

from defending himself in person or through his counsel.

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 ... 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 ... ."

The Government submit that Article 6 para. 3 (c) (Art. 6-3-c)

envisages the presence of a defence counsel in addition to the accused,

but not the representation of an absent client by the defence counsel.

Moreover, in criminal proceedings the requirements in respect of the

right and the obligation to participate in the trial are more stringent

than in civil proceedings. Thus, the Code of Criminal Procedure may,

by penalizing his absence, require the accused to be personally

present. According to the Government, S. 478 para. 3 of the Austrian

Code of Criminal Procedure is an objectively justified measure which

is in compliance with the requirements of a fair trial. They argue in

particular that the applicant was duly summoned to the trial on 18 May

1993 and was clearly informed of the consequences of his absence. Even

assuming that he was not sufficiently familiar with legal German, he

could be expected to ask his counsel or, eventually, the latter could

be expected to inform him.

The applicant submits that S. 478 para. 3 of the Code of Criminal

Procedure prevented his counsel from presenting his defence at the

trial on 18 May 1993. Thus, the arguments of the defence unlike the

arguments of the prosecution were not heard at all in the criminal

proceedings against him. He maintains that it was not clear from the

summons that he had to appear personally at the trial. Moreover, the

applicant considers that the requirement of his personal presence, in

addition to his counsel's presence, is contrary to Article 6

para. 3 (c) (Art. 6-3-c) of the Convention. He concedes that the

presence of the accused may be of considerable importance in criminal

proceedings. However, the requirement that he be adequately defended

is decisive for their fairness. Thus, the fact that he did not appear

at the trial on 18 May 1993 cannot justify that he was deprived of his

right to be defended by counsel.

After an examination of the complaint in the light of the

parties' observations, the Commission considers that it raises

questions of fact and law which can only be determined by an

examination of the merits. It follows that this complaint cannot,

therefore, be declared inadmissible as being manifestly ill-founded

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

No other grounds for inadmissibility have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the First Chamber President of the First Chamber

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

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ILHAN v. AUSTRIA

ILHAN v. AUSTRIA

LEXI