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FOCO v. AUSTRIA

Doc ref: 20007/92 • ECHR ID: 001-1651

Document date: September 7, 1993

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FOCO v. AUSTRIA

Doc ref: 20007/92 • ECHR ID: 001-1651

Document date: September 7, 1993

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 20007/92

by Tibor FOCO

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 7 September 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

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 1992

by Tibor Foco against Austria and registered on 19 May 19912 under file

No. 20007/92;

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 applicant is an Austrian citizen born in 1956. He is

detained at Stein Prison. The facts of the application as submitted

by the applicant and apparent from the documents lodged with the

application, may be summarised as follows.

On 31 March 1987 the applicant, with a co-accused, was convicted

before the Linz Regional Court (Landesgericht) of several offences,

including murder. He was sentenced to life imprisonment. The pleas

of nullity and appeals against sentence by both co-accused were

dismissed by the Supreme Court (Oberster Gerichtshof) on 15 September

1987. The applicant's representative received the decision of the

Supreme Court on 23 October 1987.

On 12 May 1989 a request for the proceedings to be reopened

(Wiederaufnameantrag) was dismissed, and an appeal against that

decision was rejected by decision of the Linz Court of Appeal

(Oberlandesgericht) on 6 June 1989.

On 8 January 1991 the applicant made a disciplinary complaint

(Aufsichtsbeschwerde) against the presiding judge of the Court which

convicted him in 1987. On 14 May 1991 the Linz Court of Appeal

rejected nine of the applicants ten points. Point 6 of the applicant's

points related to a complaint that, on 23 and 24 April 1987 a witness

at the trial had been questioned by the police outside the confines of

the trial, and that the presiding judge had been present for part of

this questioning. The Linz Court of Appeal, agreeing with the

applicant, established a violation of Article 6 of the Convention in

that the applicant's rights to a fair trial had been denied by the

violation of the procedure rights to have public, direct and oral

hearing, and the principle that all authorities must establish facts

fairly (Instruktionsgrundsatz). The judgment of the Linz Court of

Appeal was declaratory, and no further measures followed.

On 11 December 1991 the Linz Regional Court dismissed requests

by the applicant and his co-accused for the re-opening of the

proceedings in which they were both convicted. The Linz Court of

Appeal, on 15 June 1992, re-opened the proceedings in respect of the

co-accused but rejected the appeal (Beschwerde) of the applicant

against the decision of 11 December 1991. The Court, referring to its

own decision of 14 May 1991, found that the violation of Article 6

there established could not give rise to the grounds for the

proceedings to be reopened under Article 353 para. 2 Code of Criminal

Procedure (Strafprozeßordnung).

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

in respect of his conviction.

THE LAW

The applicant alleges a violation of Article 6 (Art. 6) of the

Convention in respect of his conviction.

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

the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter ... within

a period of six months from the date on which the final decision was

taken".

In the present case the decision of the Supreme Court which was

the final decision regarding the proceedings leading to the applicant's

conviction was given on 15 September 1987 and received by the

applicant's then representative on 23 October 1987, whereas the

application was submitted to the Commission on 21 October 1991,

that is more than six months after the date of this decision.

Furthermore, an examination of the case does not disclose the existence

of any special circumstances which might have interrupted or suspended

the running of that period. The applicant's various attempts to have

the proceedings re-opened and the disciplinary proceedings he

introduced cannot affect this position.

The Commission notes that the decision of the Linz Court of

Appeal of 14 May 1991 that the proceedings violated Article 6 (Art. 6)

in one respect was given less than six months before the date of

introduction of the application. However, those proceedings were of

the nature of disciplinary proceedings against a judge. Accordingly,

notwithstanding the conclusion that Article 6 (Art. 6) had been

violated in one respect in the criminal proceedings, the disciplinary

proceedings did not themselves determine the criminal charges which

were at issue in the proceedings which culminated in the applicant's

conviction.

It follows that the application has been introduced out of time

and must be rejected under Article 27 para. 3 (Art. 27-3) 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) (A. WEITZEL)

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