Lexploria

AS TO THE ADMISSIBILITY

Application No. 15701/89

by Alexander WICK

against Austria

The European Commission of Human Rights sitting in private on

30 August 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

Mr. H.C. KRÜGER, Secretary to the Commission

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 October 1989

by Alexander WICK against Austria and registered on 26 October 1989

under file No. 15701/89;

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 1964. He is

represented before the Commission by Mr. A. Friedberg, a lawyer

practising in Vienna. The applicant's present representative did not

act for him in the proceedings before the domestic courts. The facts,

as submitted by the parties, may be summarised as follows:

On 14 February 1989 the applicant was convicted of robbery by the

Vienna Regional Court (Landesgericht) and sentenced to four years'

imprisonment. He had an officially appointed lawyer for his trial.

Representation by a lawyer is compulsory in such cases. The appointment

includes preparation of appeal papers.

After judgment, which was pronounced immediately, the applicant

and his lawyer asked for extra time to consider appeals. The

applicant's representative states that the question of appeals was

discussed at the end of the trial, and that it was agreed that the

lawyer would initially make the notice of intention to bring a plea of

nullity and an appeal against sentence. The request for time to

consider appeals was granted, and the three day time-limit began to

run. On 15 February 1989 the applicant's lawyer lodged a notice of

intention to appeal against sentence and to make a plea of nullity

against the judgment. In the course of the proceedings before the

Commission the applicant's present representative has submitted a copy

of a letter of 15 February 1989 from the then representative to the

applicant in prison, informing the applicant that the lawyer had given

notice of intention to make both the appeal against sentence and, as

a precaution (in case there should be an error on the face of the

judgment when received) a plea of nullity. He added that if the

judgment disclosed no ground of nullity, he would only make the appeal

against sentence.

On 17 February 1989 the applicant, who had been detained in

custody after sentencing, was asked by a prison guard whether he wished

to file an appeal. The guard explained to the applicant that there

were two types of appeal, one being a complaint as to the proceedings

(plea of nullity - Nichtigkeitsbeschwerde) and the other being a

complaint about sentence (appeal against sentence - Berufung). The

applicant signed the pre-printed form which had been completed by the

guard and in which he stated his intention to file a plea of nullity

and explicitly waived his rights to other remedies. There were no

consultations between the lawyer and the applicant at this stage.

The lawyer received the written reasons for the judgment on

24 February 1989 and, on 8 March 1989, submitted an appeal document in

which he formally made an appeal against sentence and withdrew the plea

of nullity announced on 15 February.

On 7 April 1989 the applicant and the guard concerned were

questioned by a judge. The applicant stated that he had not realised

that a lawyer had been appointed for the entirety of the proceedings.

He did not want to change lawyer. He also stated that he had been sent

a copy of the lawyer's appeal document with an explanation of why the

lawyer had withdrawn the plea of nullity. The applicant confirmed that

the lawyer had properly presented the applicant's interests. The

prison guard stated that he invariably tells prisoners briefly about

the difference between a plea of nullity and an appeal against

sentence, and confirmed that the applicant had said "plea of nullity".

The guard confirmed that he had made the deletions in the pre-printed

form. He added that he could not tell whether the applicant had

misunderstood him and made the wrong choice, possibly because he was

worked up as a result of the sentence.

On 17 April 1989 the applicant's appeal was rejected by the

Vienna Court of Appeal (Oberlandesgericht). It noted that the

applicant had entered a plea of nullity himself and waived all other

remedies. It also noted that the applicant's properly appointed lawyer

had withdrawn the plea of nullity and made an appeal against sentence.

The court recalled that one of the grounds for rejection of an appeal

in camera was that the person had waived that appeal. The applicant

had waived his rights to an appeal against sentence and such a waiver

was irrevocable. Such a waiver was effective, regardless of the

reasons for its having been made. An officially appointed lawyer, like

a private lawyer, was only able to act where the defendant had not

stated his desires. On the other hand, the withdrawal of the plea of

nullity by the lawyer was effective even against the will of the

defendant.

On 12 July 1990 the Minister for Justice gave a written reply to

a parliamentary question concerning the pre-printed form which the

applicant had signed. He stated that, since 7 May 1990, the form was

no longer in use. In particular, he considered that the form was

inadequate in several respects. He referred to the lack of clarity and

to the absence of sufficient information concerning appeals. It was a

particular concern of the Ministry that, although permissible in law,

pre-printed forms should not be used for waivers of remedies. He

underlined that the form was only for use in the case of defendants who

were not represented and reminded the parliamentarians that, as a

result of Article 182 of the Code of Criminal Procedure

(Strafprozeßordnung), very few unrepresented defendants were detained

after the first instance judgment. As the form was not used very

often, its continued use did not appear appropriate.

COMPLAINTS

The applicant complains that he was denied access to court

because the Vienna Court of Appeal accepted his waiver of the appeal

against sentence in circumstances where that waiver had been made under

a misapprehension which was compounded by the information given by the

prison guard. He initially alleged a violation of Article 6 para. 1

of the Convention and subsequently, in his observations submitted after

communication of the application to the respondent Government, referred

also to Article 6 para. 3(c) of the Convention and Article 2 of

Protocol No. 7.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 October 1989 and registered

on 26 October 1989.

On 7 October 1991 the Commission decided to request the parties

to submit written observations on the admissibility and merits of the

application.

The Government submitted their observations on 24 January 1992.

The applicant submitted his on 24 March 1992 and 25 May 1992.

On 11 February 1993 the applicant submitted replies to questions

put to him pursuance to Rule 47 para. 2 (a) of the Commission's Rules

of Procedure. The Government submitted their comments thereon on 29

March 1993.

THE LAW

The applicant complains of a denial of access to court in that

his waiver of an appeal against sentence was accepted by the Vienna

Court of Appeal even though that waiver was made under a

misapprehension. Initially he alleged violation of Article 6 para. 1

of the Convention and subsequently referred also to Article 6 para. 3

(c) of the Convention and Article 2 of Protocol No. 7 (Art. 6-1 , 6-3-

c, P7-2).

Article 6 para. 1 (Art. 6-1) of the Convention provides, as far

as relevant as follows:

"In the determination of ... any criminal charge ...

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law. ..."

The Government submit that the application is manifestly ill-

founded. They point out that the applicant, who had applied for and

received legal aid, knew that he was represented and could have asked

to see the lawyer before completing the form. They regard the absence

of contact between the lawyer and the applicant as a matter for which

they are not responsible. They consider that the applicant must have

thought it unnecessary to consult his lawyer on the question of an

appeal against the sentence, and that accordingly he must accept that

the Vienna Court of Appeal would not overturn his "waiver". For the

Government, it must be acceptable to take the line that, if

contradicting remedies are pursued by a defendant and his

representative, it is the will of the defendant which prevails. As to

the events between 15 and 17 February 1989, the Government point out

that the applicant is not able, through his then lawyer, sufficiently

to establish that the lawyer in fact sent the letter of 15 February,

or that (and when) the applicant received it.

The applicant points out that the form used in the present case

was intended for defendants who are not represented and that it should

therefore not have been used at all in the present case. He also

points out that he was taken from his cell to the prison offices to

fill in the form, that he did not have the files with him, and that the

declaration was made at 11.50 am, i.e. just before lunch and obviously

under pressure. He further points out that there was not, in any

realistic way, any possibility whatsoever of contacting the lawyer, and

that the lawyer and the applicant did in fact have a short conversation

immediately after the trial. He concludes that it is incompatible with

the principles of a fair trial that, in cases in which an accused must

be represented, the accused's own declarations are given priority over

those of the lawyer appointed for the entire proceedings. This is

particularly the case in exercising remedies, as the decision on

whether or not to pursue a remedy, must depend on the legal advice

given by the person appointed for that purpose.

The Commission finds that the application raises complex issues

of fact and law under the Convention, the determination of which must

be reserved to an examination of the merits.

The application cannot therefore be declared manifestly ill-

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

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits

of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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WICK v. AUSTRIA

WICK v. AUSTRIA

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