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G. v. AUSTRIA

Doc ref: 18248/91 • ECHR ID: 001-1338

Document date: July 1, 1992

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Cited paragraphs: 0
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G. v. AUSTRIA

Doc ref: 18248/91 • ECHR ID: 001-1338

Document date: July 1, 1992

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 18248/91

by G.G.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1992, the following members being present:

MM. E. BUSUTTIL, Acting President of the First Chamber

F. ERMACORA

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 24 January 1991

by G.G. against Austria and registered on 23 May 1991 under file No.

18248/91;

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 they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1954, is an Austrian national. In 1986

the applicant was placed under guardianship. When lodging his

application he was detained in a prison in Graz. Before the Commission

he is represented by Mr. G. Lehner, a lawyer practising in Linz.

On 8 March 1990 the Graz Regional Court (Landesgericht) convicted

the applicant of bodily assault and theft and sentenced him to three

years' imprisonment. Furthermore, the Regional Court decided to revoke

the suspension of the applicant's detention in a mental hospital which

had been granted on probation in 1988. In these proceedings the

applicant was assisted by an official defence counsel.

On 9 April 1990 the Graz Regional Court rejected the applicant's

plea of nullity (Nichtigkeitsbeschwerde) on the ground that the

applicant had accepted the judgment and waived his right to appeal.

On 28 June 1990 the Austrian Supreme Court (Oberster Gerichtshof)

dismissed the applicant's appeal (Beschwerde) against the decision of

9 April 1990. The Supreme Court, having regard to the records of the

trial, as well as the written statements of the presiding judge at the

Graz Regional Court, the court clerk, the official defence counsel and

the public prosecutor, considered that the applicant, having been

informed about his rights, had effectively waived his right to appeal

in presence of his official defence counsel. This waiver could not be

revoked, S. 268 para. 2 of the Austrian Code of Criminal Procedure

(Strafprozeßordnung) only applied to cases where the accused had not

been assisted by counsel. There was no indication that the applicant

did not have the possibility to consult his counsel. Furthermore, in

previous criminal proceedings, he had also waived his right to appeal.

On 26 July 1990 the Graz Court of Appeal (Oberlandesgericht)

declared the applicant's appeal (Berufung) inadmissible on the ground

that the applicant had waived his right to appeal. Moreover, the Court

declared the appeal of the applicant's guardian inadmissible as having

been lodged out of time. Under S. 294 para. 1 and S. 284 para. 2 of

the Code of Criminal Procedure he would have had to lodge his appeal

within the same time-limit as the applicant.

COMPLAINTS

The applicant complains under Article 6 of the Convention about

his conviction on 8 March 1990, and about the alleged unfairness of the

criminal proceedings. He submits that, being under guardianship, he

could not effectively waive his right to appeal. He also complains

that, unlike an accused not assisted by counsel, he could not revoke

his waiver, although he had not consulted his counsel. Furthermore,

his guardian had not been summoned for the trial and thus could not be

expected to lodge his appeal within the short time-limit of three days

as from the pronouncement of the judgment.

THE LAW

The applicant complains about his conviction by the Graz Regional

Court on 8 March 1990, about the decisions of the Supreme Court and

Graz Court of Appeal, and also of the court proceedings concerned.

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 only 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. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

Furthermore, the Commission finds no indication that the criminal

proceedings against the applicant were unfair. The Commission

considers in particular that the applicant, assisted by official

defence counsel, could properly present his defence. The applicant

failed to show that he was incapable of effectively waiving his right

to appeal. In this respect, the Commission noted that the applicant

had previously been involved in criminal proceedings where he also had

waived his right to appeal, and that the applicant could have consulted

his official defence counsel. Moreover, the applicant's guardian had

an independent right to lodge appeals on the applicant's behalf. The

fixing of the time-limits for such appeals under the Austrian Code of

Criminal Procedure, as well as their application in the present case

do not appear to be arbitrary.

It follows that the application is manifestly ill-founded within

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

Accordingly, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber Acting President of the First Chamber

(M. de SALVIA) (E. BUSUTTIL)

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