Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15975/90

by G.

against Austria

The European Commission of Human Rights sitting in private

on 1 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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 30 June 1989 by

G. against Austria, and registered on 11 January

1990 under file No. 15975/90;

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 1952, is an Italian national. He has

lived in Austria since 1960. When lodging his application he was

detained at a prison in Vienna. Before the Commission he is

represented by Mr. K. Bernhauser.

A. Particular circumstances of the case

On 18 March 1983 the Court of Assizes of the Vienna Regional

Court sitting with a jury (Geschwornengericht) convicted the applicant

of murder and sentenced him to life imprisonment. In these and the

following proceedings the applicant was represented by counsel.

On 4 October 1983 a Chamber of the Austrian Supreme Court

(Oberster Gerichtshof), composed of the Presiding Judge Fa. and the

Judges Be., Fr., La. and Br., dismissed the applicant's plea of

nullity (Nichtigkeitsbeschwerde). Upon the applicant's appeal

(Berufung), the sentence was reduced to eighteen years' imprisonment.

Subsequently, the applicant started to serve his sentence.

On 28 February 1987 the Vienna Court of Appeal (Oberlandes-

gericht), upon the applicant's appeal (Beschwerde), granted his

request for a retrial in view of new evidence on the question of the

applicant's criminal responsibility.

On 22 June 1988 a new trial started before the Court of

Assizes of the Vienna Regional Court sitting with a jury. The Court

heard several witnesses. Furthermore, two medical experts were heard

on the question of the applicant's criminal responsibility, having

particular regard to the alleged taking of drugs.

On 1 July 1988 the Court of Assizes noted that the jury had

unanimously found the applicant guilty of murder, had unanimously

denied that he was not criminally responsible and had also found him

guilty of unlawful possession of a weapon. The Court of Assizes

convicted the applicant of murder and unlawful possession of a weapon,

and sentenced him to sixteen years' imprisonment.

The applicant lodged a plea of nullity and an appeal against

sentence (Berufung) with the Supreme Court, and filed the reasons on

24 August 1988. He referred to S. 345 para. 1, Nos. 4, 6, 8 and 10a,

of the Code of Criminal Procedure (Strafprozessordnung) and submitted

in particular that the questions to the jury had not been properly

put. Furthermore, having regard to the testimony of one witness and

the evidence given by one of the experts, there were serious doubts as

to the facts upon which the decision of the jury as to his criminal

responsibility was based. He also argued that the Regional Court had

not correctly assessed the length of his sentence.

On 12 September 1988 the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) filed an appeal requesting in particular that the

sentence be increased according to the applicant's guilt. The

applicant's comments on this appeal were received by the Vienna

Regional Court on 29 September and 6 October 1988.

On 12 January 1989 the Supreme Court, sitting as a chamber

with the Presiding Judge Be. and the Judges Fr., Re., Br. and Ku.,

rejected the applicant's application of 2 November 1988 for his

personal attendance at the hearing. The Supreme Court, referring to

S. 286 para. 2 and S. 296 para. 3, second sentence, of the Austrian

Code of Criminal Procedure, found that the applicant's request had been

lodged out of time, and that furthermore his personal attendance was

not necessary in the interest of justice. The applicant, being

detained, had failed to ask for his personal attendance in his appeal

and in his submissions commenting upon the appeal of the Public

Prosecutor's Office.

On 17 January 1989 the Supreme Court, after a public hearing

in the presence of the applicant's defence counsel, dismissed the

applicant's plea of nullity. Upon the appeal of the Public Prosecutor's

Office, the sentence was increased to eighteen years' imprisonment.

In this respect the Supreme Court deviated from the Regional Court's

weighing of the aggravating and mitigating circumstances.

B. Relevant domestic law

SS. 67 to 74 (a) of the Austrian Code of Criminal Procedure

(Strafprozeßordnung) concern the disqualification and challenge of

judges and other members of a court.

According to S. 67 a judge is disqualified if he is the victim

of the offence at issue or if he is related to the accused, the

victim, the public prosecutor, the private prosecutor or the defence

counsel.

S. 68 disqualifies any judge on grounds of conflict of

interest, namely as being a witness or expert, having laid the charges

concerned or acted as public prosecutor, as having represented the

private prosecutor, the private party or the accused, as having acted

as court witness, or having otherwise an interest in the outcome of

the case. Furthermore, judges having acted in the same case as

investigating judge, or having participated in the decision of the

accused's appeal against his committal for trial are disqualified from

participating in the trial, as well as judges having participated in a

first trial, if a new trial has to take place after successful nullity

or appeal proceedings.

S. 69 provides that members of courts of higher instances are

also disqualified if they acted as investigating judge, if they

participated in a decision at a lower instance, and they are

disqualified as presiding judge or rapporteur, if they are, within the

meaning of S. 67, related to a person having acted as investigating

judge or rapporteur at a lower instance.

Under S. 72 of the Code of Criminal Procedure a public

prosecutor, private party, private prosecutor or accused may challenge

members of the court, if there are other reasons than those mentioned

in SS. 67 to 69, which may raise doubts as to the complete

impartiality of the person concerned. Judges are obliged to give

notice of any reason, which could give rise to doubts as to their

complete impartiality.

S. 73 provides inter alia that a motion of challenge has to

be filed with the court, of which the judge challenged is a member,

and that the reasons for the motion have to be indicated precisely.

S. 74 para. 1 stipulates that as a rule the President of the court, of

which the judge concerned is a member, decides on the motion of

challenge; paragraph 2 regulates the competence to decide upon motions

to challenge the President of a district court, a full court of first

instance or its President or a full appellate court or its president.

A plea of nullity against a judgment of an Assize Court may

only be based upon the specific reasons enumerated in S. 345 para. 1

of the Code of Criminal Procedure. Thus a plea of nullity may be

lodged where during the trial hearing there has been a breach of, or a

failure to comply with, a provision in respect of which it is

expressly provided that such breach or failure shall entail nullity

(para. 1 No. 4); if provisions concerning the questions to the jury

were violated (para. 1 No. 6); if the presiding judge incorrectly

explained the law to the jury (para. 1 No. 8); if there are considerable

doubts as to the correctness of the relevant facts upon which the vote

of the jury was based (para. 1 No. 10a).

According to S. 286 para. 2 of the Code of Criminal Procedure,

in nullity proceedings before the Supreme Court, an unrepresented

defendant in custody has to be informed of the date set down for the

hearing and advised that he may only appear through a lawyer.

According to S. 296 para. 3, second sentence, of the Code of

Criminal Procedure, in appeal proceedings before the Supreme Court,

the defendant not in custody shall always be summoned and the

defendant in custody shall be brought before the court if he so

requests in his appeal or in his counter-statement or if his presence

appears to be necessary in the interests of the proper administration

of justice or for other reasons.

COMPLAINTS

1. The applicant complains that, unlike a defendant not in

custody, he could not attend the hearing before the Supreme Court in

person. Furthermore he complains that the Supreme Court did not

properly review the Regional Court's judgment, and did not give

sufficient reasons for its decision. He invokes Articles 6 para. 1 and

14 of the Convention and Article 2 para. 1 of Protocol No. 7 to the

Convention.

2. He complains under Article 6 para. 1 of the Convention that

his plea of nullity and appeal were not heard by an impartial court on

the ground that three of the five judges at the Supreme Court deciding

upon his plea of nullity and appeal in 1989 had already been dealing

with his case in the nullity and appeal proceedings in 1983. He

considers that he could not have lodged a motion to challenge these

judges.

THE LAW

1. The applicant complains about the judgment of the Austrian

Supreme Court of 17 January 1989, and also of the proceedings

concerned.

Insofar as the applicant appears to complain about the

decision of the Supreme Court as such, the Commission recalls that, in

accordance with Article 19 (Art. 6) 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).

The applicant complains under Article 6 para. 1 and Article 14

(Art. 6-1, 14) of the Convention and Article 2 para. 1 of Protocol

No. 7 (P7-2-1) to the Convention that, unlike a defendant not a

custody, he could not attend the hearing before the Supreme Court in

person.

Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the

Convention, insofar as relevant, provide as follows:

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

him, everyone is entitled to a fair ... hearing ...

3. Everyone charged with a criminal offence has the

following minimum rights:

(d) to examine or have examined witnesses against him

and to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against

him; ..."

Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

Article 2 para. 1 of Protocol No. 7 (P7-2-1) provides in particular

that "everyone convicted of a criminal offence by a tribunal shall

have the right to have his conviction or sentence reviewed by a higher

tribunal".

The Commission has first examined the applicant's complaint

that the Supreme Court dismissed his request to attend the oral

hearing on his appeal in person.

The Commission recalls that Article 6 para. 1 and para. 3 (d)

(Art. 6-1, 6-3-d) of the Convention do not expressly guarantee the

right to be present during the hearing of an appeal, but that the

right to be present must be considered with the other rights of the

defence in the context of an evaluation of the fairness of the

proceedings as a whole (cf. No. 7138/75, Dec. 5.7.77, D.R. 9 p. 50;

No. 8289/79, Dec. 5.3.80, D.R. 18 p. 160; No. 9315/81, Dec. 15.7.83,

D.R. 34 p. 96).

Furthermore a difference in treatment between defendants at

liberty and those in custody as regards their personal attendance at a

hearing on appeal can be justified and does not necessarily amount to

discrimination contrary to Article 14 (Art. 14) of the Convention

(Eur. Court H.R., Kamasinski judgment of 19 December 1989, Series A

No. 168, pp. 44 - 45, paras. 104 - 108).

The Commission notes that under S. 296 para. 3 of the Austrian

Code of Criminal Procedure the defendant in custody shall be brought

before the Supreme Court at a hearing, if he so requests in his appeal

or his counter-statements to the appeal of the public prosecutor, or

if his presence appears to be necessary in the interests of the proper

administration of justice or for other reasons. In the present case,

the Supreme Court rejected the applicant's request, filed by his

defence counsel, to attend the hearing of his appeal in person on the

ground that he had lodged his request out of time, namely not in his

appeal or in his submissions commenting upon the appeal of the Public

Prosecutor's Office. Furthermore his personal attendance was not

necessary in the interest of justice.

It follows that the applicant is himself responsible for the

fact that he was not present at the hearing of the appeal proceedings

before the Supreme Court.

The Commission, considering that the applicant's plea of

nullity and appeal as well as his counter-statements to the appeal of

the Vienna Public Prosecutor's Office were presented in writing by his

defence counsel, who attended the hearing before the Supreme Court,

finds no indication that the refusal of his personal attendance

violated the rights invoked by the applicant, in particular his right

to a fair trial under Article 6 para. 1 (Art. 6-1) of the Convention.

Furthermore the Commission, having considered the applicant's

complaint that the Supreme Court did not properly review the Regional

Court's judgment, and did not sufficiently reason its decision, finds

that there is nothing in the file to indicate that the Supreme Court

did not duly take the applicant's submissions and arguments into

account, and that the proceedings were thus unfair.

Consequently, this part of the application is manifestly

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

Convention.

2. Furthermore, the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention that three of the five judges at the

Supreme Court deciding upon his plea of nullity and appeal against

sentence in 1989 had already been involved in the first nullity and

appeal proceedings in 1983. He considers that he was not heard by an

impartial court. He submits in particular that in 1989 the Supreme

Court increased the sentence to eighteen years' imprisonment as it had

fixed the sentence in 1983.

The Commission notes that the applicant did not lodge a motion

to challenge the three judges concerned for bias, although he was

informed about the composition of the Supreme Court, at the latest by

the decision rendered on 12 January 1989. The applicant submits that

such a challenge would not have had any prospect of success. It is

true that the prior participation of a Supreme Court Judge in nullity

and appeal proceedings concerning the same case does not figure

amongst the reasons for disqualification of judges set out in SS. 67

to 69 of the Code of Criminal Procedure. Moreover, the procedural

requirements for a challenge of several judges of the Supreme Court

including the Presiding Judge do not clearly follow from SS. 73 and 74

of the Code of Criminal Procedure.

However, the Commission leaves the question open whether the

applicant must be considered as having waived his right to have his

case determined by an impartial court on the ground that his complaint

in this respect is, in any event, manifestly ill-founded for the

following reasons.

The Commission recalls that the existence of impartiality for

the purposes of Article 6 para. 1 (Art. 6-1) must be determined

according to a subjective test, that is on the basis of the personal

conviction of a particular judge in a given case, and also according

to an objective test, that is ascertaining whether the judge offered

guarantees sufficient to exclude any legitimate doubt in this respect

(Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A No.

154, p. 21, para. 46).

The applicant does not complain about the lack of personal

impartiality of the three Judges.

Under the objective test, it must be determined whether, quite

apart from the judge's personal conduct, there are ascertainable facts

which may raise doubts as to his impartiality. In this respect even

appearances may be of a certain importance. It is decisive whether

the fear that a particular judge lacks impartiality can be held

objectively justified (Hauschildt judgment, op. cit., p. 21, para. 48).

As regards courts of first instance, there is no general rule

resulting from the obligation to be impartial that a superior court

which sets aside an administrative or judicial decision is bound to

send the case back to a different jurisdictional authority or to a

differently composed branch of that authority (Eur. Court H.R.,

Ringeisen judgment of 16 July 1971, Series A No. 13, p. 40, para. 97).

Furthermore, it is common in the Convention countries that higher

courts deal with similar or related cases in turn (Eur. Court H.R.,

Gillow judgment of 24 November 1986, Series A No. 109, p. 28, para. 73).

In the present case in the first set of proceedings in 1983

the Supreme Court dismissed the applicant's plea of nullity and, upon

his appeal, reduced his sentence from life imprisonment to eighteen

years' imprisonment. The charges against the applicant were thereby

finally determined, but a retrial was held and the case was again

taken to the Supreme Court. In 1989 three of the five judges at the

Supreme Court who participated in the above decision of 1983 dismissed

the applicant's plea of nullity and, upon the appeal of the Public

Prosecutor's Office, increased the sentence from sixteen to eighteen

years' imprisonment.

The Commission considers that the Supreme Court, in the

nullity and appeal proceedings, had to decide whether there were

specific reasons of nullity within the meaning of S. 345 para. 1 of

the Code of Criminal Procedure, in particular procedural defects or

relevant errors of law committed, or considerable doubts as to the

facts found, by the trial court and whether the trial court had

correctly assessed the circumstances in respect of the fixing of the

sentence. It was not called upon to decide on the applicant's

guilt. The Presiding Judge Be. and the Judges Fr. and Br. who were

twice dealing with the applicant's case remained in the same function

in the proceedings. There are no special circumstances which would

objectively justify the applicant's fears that these Judges were

lacking impartiality.

It follows that the applicant's complaint that in 1989 his

plea of nullity and appeal against sentence were not heard by an

impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) is

also 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 Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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G. v. AUSTRIA

G. v. AUSTRIA

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