Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16493/90

by K.P.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 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

G.B. REFFI

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 19 March 1990 by

K.P. against Austria and registered on 23 April 1990 under file No.

16403/90;

Having regard to:

- the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

22 May 1992 and the observations in reply submitted by the

applicant on 13 July 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1946. He lives in

Seyring and is represented before the Commission by Mr. K. Bernhauser,

lawyer, of Vienna.

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

summarised as follows.

The applicant was convicted on 18 July 1989 by the Korneuburg

District Court (Kreisgericht) of various smuggling offences. He was

ordered to pay a fine of AS 80,000 with three weeks' detention in

default. The Korneuburg prosecuting authority (Staatsanwaltschaft) and

the Vienna customs authority (Zollamt) appealed against the sentence.

In accordance with Article 294 para. 5 of the Code of Criminal

Procedure (Strafprozeßordnung) the applicant, who was at liberty, was

summoned to appear at the appeal hearing. From 6 March 1990 until

16 May 1990, the applicant was detained on remand in connection with

offences not related to the present application. The applicant's

lawyer states that some days before the appeal hearing, the applicant's

then lawyer telephoned the office of the Vienna Court of Appeal

(Oberlandesgericht), requesting that arrangements should be made for

the applicant to appear at the hearing. The Government point out that

no record of any such conversation exists in the case-file. At the

hearing on 12 March, which the applicant's lawyer attended according

to a file note of the applicant's lawyer of 14 March 1990, the Court

was put on notice that the applicant was in detention on remand.

According to the applicant, the hearing proceeded without him. The

Government refer to the record, which states that the applicant was

present.

At the end of the hearing, the Court of Appeal increased the fine

imposed on the applicant to AS200,000 with two months' detention in

default.

On 30 September 1991 the applicant made a request for the record

of the appeal hearing to be amended. The request was denied on 14

October 1991, the Vienna Court of Appeal finding, inter alia, as

follows:

"According to the contents of the record of the appeal hearing

... [the applicant] was also present at that hearing. It cannot

be concluded from the contents of the record of the appeal

hearing whether he was produced from detention on remand that had

been imposed on him in another case.

The submission by the prison management of 27 September 1991 only

states that he was detained on remand from 6 March 1990 until 16

May 1990, that he was served no summons for the appeal hearing

(because he had already received it) and - as the prison

management's records show - that the [applicant] was not produced

for the appeal hearing, although the question remains open

whether the prison management's records are complete."

COMPLAINTS

The applicant complains that the sentence in his case was

increased on the prosecution's appeal and in his absence. He alleges

a violation of Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 March 1990 and registered

on 23 April 1990.

On 13 January 1992 the Commission decided to communicate the

application to the respondent Government. The Government submitted

their observations on 22 May 1992 and the applicant submitted his

observations in reply on 13 July 1992.

THE LAW

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

Convention in that he was not present at his appeal hearing, on which

occasion his sentence was increased.

Article 6 (Art. 6) of the Convention provides, so far as

relevant, 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 Government underline that the applicant knew of the date of

the appeal hearing but made no request to the prison authorities where

he was detained for permission to attend, that there is no confirmation

that his representative asked for him to be present before the hearing

or when the hearing began, and that although a request was made

(belatedly) for the appeal record to be amended to indicate that the

applicant was not present, no request was made for the addition to the

record of a request for him to attend. They consider that Article 6

(Art. 6) did not, in any event, require the applicant's attendance at

the appeal hearing in the present case as the applicant was able to

make, in writing and before the hearing, any comments he had on the

prosecutor's appeal, and as he was represented by a lawyer who did

attend the hearing.

The applicant repeats that the lawyer who attended the appeal

hearing confirms that he told the court that the applicant was

detained. He considers that there was no need for him to request the

prison authorities for permission to attend as his lawyer was dealing

with the matter. The applicant contests that the decision for the

Vienna Court of Appeal was one which could simply be dealt with on the

papers. He points out that questions of sentencing require the

sentencing court to form its own impression of the defendant.

The Commission first recalls that Article 6 (Art. 6) of the

Convention applies to proceedings relating to an appeal against

sentence such as that in the present case (cf. Eur. Court H.R.,

Kamasinski judgment of 19 December 1989, Series A no. 168, p. 44 para.

106, where, due to the nature of the charges, the appeal against

sentence was to the Supreme Court, and No. 12350/86, Kremzow v.

Austria, Comm. Rep. 20.5.92, pending before the European Court of Human

Rights, paras. 90 - 102, also concerning proceedings before the Supreme

Court). The Commission observes, however, that the factual background

to the present case is fundamentally different from that in that

Kremzow case. In that case the applicant fell under the limb of

Article 296 para. 3 of the Code of Criminal Procedure

(Strafprozeßordnung) which deals with defendants who are detained. The

present applicant who was at liberty at the

time, was summoned under the other limb relating to defendants who are

at liberty. It remains in principle for a defendant summoned whilst

at liberty to decide for himself whether he wishes to attend the appeal

hearing or not.

The Commission notes that there is disagreement in the present

case as to the facts. The Government consider that the applicant has

not established that he made the requests he claims, and that he was

actually present at the hearing; the applicant maintains the contrary.

The Commission has taken note of the comments of the prison

authorities, of the other defendants and of the representative of one

of those defendants and considers that the applicant was not in fact

present at the appeal hearing on 12 March 1990.

The Commission next finds that it cannot be said that the

applicant indicated any particular desire to attend the appeal hearing.

The representative who attended court on 12 March 1990 states that he

informed the court that the applicant was in detention on remand, but

he does not hint that the applicant wished to attend, or that he so

informed the court. Moreover, whilst an application was made for the

record to be amended to exclude reference to the applicant's presence,

none was made for the addition of the alleged request for the applicant

to be brought to the hearing. Finally in this respect, the Commission

notes that the applicant knew of the date of the hearing, and it might

have been expected that he would mention the matter to the prison

authorities if he had any desire to attend.

In the unusual circumstances of the present case, that is where

a defendant is initially informed of the date of an appeal hearing on

the footing that he is not in detention, and is subsequently detained

in connection with other matters with the result that he never received

the information provided to a defendant who is detained throughout, the

Commission finds that an applicant who is fully aware of the date of

his appeal hearing, and also is represented throughout, but who fails

to evince interest in that appeal hearing, cannot subsequently complain

if the hearing proceeds in the presence of the lawyer, but not the

applicant.

It follows that the application 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) (A. WEITZEL)

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K.P. v. AUSTRIA

K.P. v. AUSTRIA

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