Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22606/93

by S. Z.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 6 April 1995, 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

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 5 May 1993 by S.

Z. against Austria and registered on 10 September 1993 under file

No. 22606/93;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant was a citizen of former Jugoslavia, born in 1966,

and is presently detained at the Stein prison.

On 23 September 1992 the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) preferred a bill of indictment against the

applicant and S.P. as co-accused, charging them with murder.

On 3 and 4 December 1992 the trial took place before the Court

of Assizes (Geschwornengericht) at the Vienna Regional Court

(Landesgericht) in which the applicant and S.P. were both assisted by

official defence counsels. According to the transcript of the court

hearing the court heard three witnesses and three experts and neither

of the accused requested the taking of further evidence at the trial.

On 4 December 1992 the Court of Assizes convicted the applicant

and S.P. of murder and aggravated robbery and sentenced them to life

imprisonment. The Court of Assizes found that on 5 June 1992 the

accused had murdered a woman, an acquaintance of the applicant, and

taken her jewels.

The applicant introduced a plea of nullity (Nichtigkeits-

beschwerde) and an appeal (Berufung) against the sentence. In his plea

of nullity the applicant submitted in particular that the questionnaire

submitted to the jury was incorrect. In his appeal he submitted that

the Court of Assizes had failed to take into account as further

mitigating circumstances his confession and that he had acted under the

influence of S.P.

On 20 April 1993 the Supreme Court (Oberster Gerichtshof), after

a public hearing in which the applicant was represented by his counsel

but did not participate himself, dismissed his plea of nullity and

appeal. As regards the plea of nullity, the Supreme Court found that

the questions put to the jury had been correct. As regards the appeal

the Supreme Court found that there were no indications in the file for

the alleged incitement by S.P. and that the Court of Assizes had acted

correctly in passing the sentence.

COMPLAINTS

The applicant complains about his conviction and the alleged

unfairness of the proceedings concerned. He submits in particular that

he had been questioned by the police in the absence of an interpreter,

that the case-file had not been translated for him into Serbo-Croat and

that the Court of Assizes had failed to hear important witnesses. He

further submits that his defence counsel did not defend him properly.

He also complains that he could not attend the hearing of the Supreme

Court. He invokes Article 6 paras. 1, 2, 3 (a) and 3 (d) and Article

7, 8, 13 and 14 of the Convention.

THE LAW

1. With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its 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 (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

The applicant further complains that the criminal proceedings did

not comply with the requirements of Article 6 (Art. 6) of the

Convention in several respects.

2. He submits that he had been questioned by the police in the

absence of an interpreter, that the case-file had not been translated

for him into Serbo-Croat and that the Court of Assizes failed to hear

important witnesses.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 6 (Art. 6) of the Convention as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognized rules of international law. It recalls that domestic

remedies within the meaning of Article 26 (Art. 26) of the Convention

have only been exhausted if, before the highest domestic body, the

applicant has submitted in substance his complaint before the

Commission, even without particular reference to the Convention

(No. 7299/75 and 7496/76, Dec. 4.12.79, D.R. 18 p. 5; No. 12164/86,

Dec. 12.10.88, D.R. 58 p. 63).

The Commission notes that the applicant in his plea of nullity

did not raise the issue of the interpreter, the translation of the case

file or the Court of Assizes' failure to summon witnesses for the

defence.

It follows that the applicant has not complied with the

requirement as to the exhaustion of domestic remedies contained in

Article 26 (Art. 26) of the Convention.

This part of the application must, therefore, be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

3. As regards the applicant's further complaints about the alleged

unfairness of the proceedings leading to his conviction, the Commission

recalls that the guarantees contained in paragraph 3 of Article 6

(Art. 6-3) of the Convention are specific aspects of the general

concept of fair trial set forth in paragraph 1 of this Article

(Art. 6-1). In the circumstances of the present case, it will consider

the applicant's complaints from the angle of paragraph 1 taken together

with the principles inherent in paragraph 3 (Art. 6-3)(see Eur. Court

H.R., Bönisch judgment of 6 May 1985, Series A no. 92, p. 15, para. 29;

Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14,

para. 29).

a. As regards the applicant's complaint that his defence counsel did

not defend him properly, the Commission recalls that the domestic

courts are obliged under Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention to ensure the accused's effective defence, but the person

concerned must provide them with the wherewithal to notice any

deficiency in the defence (No. 9022/80, Dec. 13.7.83, D.R. 33 p. 21 at

p. 36).

However, the applicant has not shown that at any stage in the

proceedings he had notified the authorities of the alleged shortcomings

in his defence. In these circumstances there is no appearance of a

violation of the applicant's right to a fair hearing in this respect.

b. Lastly the applicant submits that he could not attend the public

hearing before the Supreme Court.

The Commission notes that this hearing concerned first the

applicant's plea of nullity. In this respect the Commission recalls

that under Austrian law the Supreme Court in dealing with nullity

proceedings, is primarily concerned with questions of law that arise

in regard to the conduct of the trial and other matters. While the

Supreme Court is bound by the findings of fact made by lower courts,

it may be required to examine whether a motion to take evidence has

been properly refused by the trial court and whether the excluded facts

might have influenced the jury's verdict. If the accused is

represented by counsel, neither paragraph 1 nor 3 (c) of Article 6

(Art. 6-1, 6-3-c) require his presence at such proceedings (Eur. Court

H.R., Kremzow judgment of 21 September 1993, Series A no. 268-B, p. 44,

para. 63). In the present case, the applicant had been represented by

counsel and had not requested to be present at the hearing. Moreover

he had invoked as ground of nullity that the questionnaire submitted

to the jury was incorrect which is a question of law.

The hearing before the Supreme Court also concerned the appeal

against sentence. In such proceedings it is essential that the

appellant be present during the hearing of the appeal and afforded the

opportunity to participate in it together with his counsel, if the

court is called upon to assess not only the appellant's character and

state of mind at the time of the offence but also of his motive

(Kremzow judgment, loc. cit., p. 45, para. 67). In the present case,

however, the grounds of appeal submitted by the applicant, did not give

rise to an assessment of his motive or even of his character or state

of mind at the time of the offence.

Therefore, the Commission finds that the applicant's presence at

the Supreme Court's hearing was not required by Article 6 para. 1

(Art. 6-1) or para. 3 (c) (Art. 6-3-c) of the Convention. There is,

thus, no appearance of a violation of the applicant's right to a fair

hearing in this respect.

This part of the application, therefore, 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 THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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S.Z. v. AUSTRIA

S.Z. v. AUSTRIA

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