Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17358/90

by M.B.

against Austria

The European Commission of Human Rights sitting in private on

2 April 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M. NOWICKI

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 5 October 1990 by

M.B. against Austria and registered on 25 October 1990 under file No.

17358/90 ;

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

of Procedure of the Commission;

Having regard to:

- the observations submitted by the respondent Government on

11 September 1992 and the observations in reply submitted by the

applicant on 26 November 1992;

Having deliberated;

Decides as follows:

THE FACTS

The particular circumstances of the case

The applicant is a Turkish citizen born in 1969. He lives in

Innsbruck. He was initially represented before the Commission by

Mr. A. Heiss. He is now represented by Mr. W. L. Weh, a lawyer

practising in Bregenz.

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

summarised as follows.

The applicant was convicted on 23 March 1990 of attempting to

bribe civil servants. He was fined AS 25,200, suspended for three

years. On 6 March 1990, before the trial had begun, the presiding

judge had informed Mr. Heiss, the applicant's lawyer, that one of the

judges, Judge Schaumburger, had taken part in the preliminary

proceedings at the questioning of witnesses. The lawyer was asked to

inform the court by 16 March 1990 whether he challenged the judge on

this ground. The applicant's lawyer received the note on 12 March and

did not reply. Before the trial began on 23 March, the presiding judge

again stated that Judge Schaumburger had officiated as investigating

judge for part of the preliminary proceedings. The trial record states

that the parties waived the right to raise this point as a ground of

nullity ("Auf Geltendmachung dieses Umstandes als Nichtigkeitsgrund

wird allseits verzichtet"). The applicant alleges that the trial

record does not include this statement.

The applicant made a plea of nullity and an appeal against

sentence to the Supreme Court (Oberster Gerichtshof). In his plea of

nullity (under Article 281 para. 1(1) of the Code of Criminal Procedure

(Strafprozeßordnung)) he alleged that he had been heard by a judge who

was excluded by operation of law from participation. He also alleged

violations of Article 281 para. 1(4), (5) and (9)(a) of the Code of

Criminal Procedure. In particular, in connection with Article 281

para. 1 (5), the applicant complained that the trial court had found

two witnesses completely credible, and had found that contradictions

in their stories were easily explained as mistakes of memory. He

alleged that the contradictions were fundamental. He also stated that

there should have been a confrontation between two witnesses and the

applicant's brother, who had for a certain time been suspected of the

offences. The prosecution also appealed against the sentence.

On 7 August 1990 the Supreme Court rejected the applicant's plea

of nullity under Article 285 para. 1 of the Code of Criminal Procedure.

After confirming that a disqualified judge had taken part in the trial,

the Supreme Court referred to the waiver contained in the record of the

trial proceedings, and noted that Article 281 para. 1 (1) of the Code

of Criminal Procedure required a ground of nullity first to have been

raised at the trial itself. In connection with the applicant's plea

of nullity under Article 281 para 1 (5) of the Code of Criminal

Procedure, the Supreme Court found that the complaints were an attempt

to challenge the assessment of the evidence made by the judges of fact,

and as such were inadmissible and insufficient to constitute a ground

of nullity under Article 281 para. 1 (5) of the Code of Criminal

Procedure. The Supreme Court also found that there had, in fact, been

a confrontation between the two witnesses and the applicant's brother,

notwithstanding the applicant's allegation that there had been none.

The plea of nullity was rejected. The Supreme Court remitted the

question of the applicant's appeal against sentence to the Innsbruck

Court of Appeal (Oberlandesgericht).

The applicant's lawyer, Mr. Heiss, received the Supreme Court's

decision on 6 September 1990.

On 3 October 1990 the Innsbruck Court of Appeal, after an oral

hearing, increased the applicant's sentence to nine months'

imprisonment. Mr. Heiss received this decision on 16 October 1990.

Relevant domestic law

Article 68 para. 2 of the Code of Criminal Procedure (Straf-

prozeßordnung) provides that "a person shall be disqualified from

participating or deciding in the trial proceedings if he has acted as

investigating judge in the same case ..."

Article 281 para. 1 of the Code of Criminal Procedure provides

for the specific grounds on which a plea of nullity may be made. These

include:

"1. if the court was not properly constituted, ... or if a judge

took part in the decision who is excluded (under Articles 67 and

68), unless the cause of the plea of nullity was known to the

applicant before or during the trial, and was not raised by him

at the beginning of the trial or as soon as he became aware of

it,

...

5. if the judgment of the trial court in respect of decisive

facts is unclear, incomplete or self-contradictory ..."

Article 285 (d) para. 1 of the Code of Criminal Procedure

provides:

"A plea of nullity may be rejected immediately after deliberation

in private:

1. if it should already have been rejected by the court at first

instance, pursuant to Article 285 (a) ...,

2. if the plea of nullity is based on the grounds of nullity

enumerated in Article 281 para. 1 (1-8 and 11) and if the Supreme

Court unanimously finds that the complaint should be dismissed

as manifestly ill-founded without any need for further

deliberation."

COMPLAINTS

In his original application of 5 October 1990 the applicant

alleged a violation of Article 6 para. 1 of the Convention by virtue

of the participation of a judge who was excluded from the proceedings

by operation of law. He submitted that the prohibition contained in

Article 68 para. 2 of the Code of Criminal Procedure was absolute, and

that it was not possible to waive the right to object to such

participation.

On 6 March 1991 the applicant, now represented by Mr. Weh,

submitted a further series of complaints in which, in addition to the

complaint concerning the participation of the judge, he complained that

the nullity proceedings were in violation of Article 6 para. 1 of the

Convention in that no oral hearing had taken place, even though the

nullity proceedings in substance dealt with the facts of the case. He

considered that the Austrian reservation to Article 6 of the Convention

was incompatible with Article 64.

He also complained that the Procurator General submitted a

statement to the Supreme Court which was not made available to the

defence, and that the Supreme Court had divulged the name of the judge

rapporteur to the Procurator General in violation of Section 20 of the

Supreme Court Act.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 October 1990 and registered

on 25 October 1992.

On 11 May 1992 the Commission decided to communicate the case to

the respondent Government for observations. The Government submitted

their observations on 11 September 1992 and the applicant submitted his

observations in reply on 26 November 1992.

THE LAW

The applicant alleges violation of Article 6 para. 1 (Art. 6-1)

of the Convention in several respects. Article 6 of the Convention

provides, insofar as relevant, as follows:

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

him, everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

With regard to the participation of Judge Schaumburger, the

Government point out that the applicant was twice given the opportunity

to challenge the judge, but did not avail himself of either. They

consider that the applicant has validly waived his right to challenge

the judge. They point out that Judge Schaumburger refrained from any

procedural action until the waiver was declared, and that it was the

presiding judge (who was not excluded) who invited the applicant's

lawyer on each occasion to state whether he objected to the

participation of Judge Schaumburger . The Government consider that it

is unrealistic to allege that a refusal to waive would have entailed

extra costs and delay as, had the applicant chosen to reject Judge

Schaumburger's participation before the trial, the presiding judge

would simply have nominated the next judge on the schedule of business

to take part in the trial.

The applicant points to a distinction in Austrian law between

matters which give rise to an exclusion of a judge and those which give

rise to the possibility of challenge: in cases such as the present,

concerning exclusion, that exclusion is fixed by operation of law

without the parties' raising it. The applicant considers that it

cannot be possible to waive objection to participation by a judge who

is excluded by operation of law, as the very wording of the provision

precludes acceptance by a defendant. He considers therefore that the

court was neither "independent and impartial" nor a tribunal

"established by law".

As to the question of the absence of a hearing before the Supreme

Court, the Government consider that the complaint is covered by the

Austrian reservation to Article 6 (Art. 6) of the Convention which

provides as follows:

"The provisions of Article 6 (Art. 6) of the Convention shall be

so applied that there shall be no prejudice to the principles

governing public court hearings laid down in Article 90 of the

1929 version of the Federal Constitutional Law."

Whilst the Government accept that a request by the applicant to

the Supreme Court to conduct an oral hearing would have had no

prospects of success, they consider that the applicant's complaint

under Article 281 para. 1 (5) of the Code of Criminal Procedure was

rejected by the Supreme Court for legal reasons and without regard to

the merits.

The applicant considers in this respect that the Austrian

reservation to Article 6 (Art. 6) of the Convention does not comply

with the criteria of Article 64 of the Convention, that the plea of

nullity raised under Article 281 para. 1 (5) of the Code of Criminal

Procedure related exclusively to questions of fact, and that he should

therefore have been entitled to a public hearing before the Supreme

Court.

As to the complaint that the Procurator General submitted a

statement to the Supreme Court which was not made available to the

defence, the Government accept that the Procurator General made the

following "observations" to the Supreme Court:

"In the view of the Procurator General, the plea of nullity

brought by the accused, M.B., meets the criteria for a decision

pursuant to Art. 285 of the Code of Criminal Procedure. The

transmission of a copy of the decision is requested."

They also accept that these observations were not served on the

applicant. They consider, however, that the Procurator General's

"observations" do not amount to comments on the facts of the case, nor

did they amount to factual arguments, such that the principle of

"equality of arms" was not violated.

The applicant underlines that the Procurator General is a

prosecution authority, and he considers that the fact that the

"observations" did not deal with the merits of the case is irrelevant.

The Commission considers that the applicant's complaints as a

whole are closely interrelated and cannot be separated. It further

considers that they raise complex and difficult questions of law and

fact, including questions relating to the Austrian reservation to

Article 6 (Art. 6) of the Convention. In these circumstances, the

applicant's complaints cannot at this stage be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. They require to be determined as to

their merits, no other ground of inadmissibility having been

established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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M.B. v. AUSTRIA

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