KREMZOW v. AUSTRIA
Doc ref: 12350/86 • ECHR ID: 001-725
Document date: September 5, 1990
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AS TO THE ADMISSIBILITY OF
Application No. 12350/86
by Friedrich Wilhelm KREMZOW
against Austria
The European Commission of Human Rights sitting in private
on 5 September 1990, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
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 1 August 1986
by Friedrich Wilhelm KREMZOW against Austria and registered
on 22 August 1986 under file No. 12350/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to:
- the Commission's decision of 19 January 1989 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
23 May 1989 and the observations in reply submitted by the
applicant on 18 August 1989;
- the additional observations submitted by the applicant on
29 June 1990 and by the Government on 17 July 1990;
- the parties' oral submissions at the hearing on 5 September 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts as submitted by the parties may be summarised as
follows:
The applicant, an Austrian citizen born in 1938, was a
judge in the Austrian courts from 1964 to 1978. He is currently
serving a life sentence for murder in Vienna. He is represented
before the Commission by Rechtsanwalt Dr. Wilfried Ludwig Weh of
Bregenz.
On 16 December 1982, the applicant voluntarily presented
himself before the Regional Court (Kreisgericht) of Korneuburg and
confessed to having killed P, a Viennese lawyer for whom he had
been working, on 13 December 1982 by shooting him twice in the head
area with a revolver. The applicant provided no motive for the
homicide, which, according to him, had occurred in his wife's car on a
country road while the victim was asleep. Criminal proceedings were
instituted and the applicant has remained in detention ever since.
Immediately following his arrest, the applicant was taken into
psychiatric treatment and observation in view of a danger of his
committing suicide and of his overall mental condition. Because of
this condition, he was interned in the psychiatric hospital of the
City of Vienna from 1 to 20 April 1983 and to the Mittersteig special
institution for mentally deranged offenders since 6 December 1983.
On 17 December 1982, the investigating judge (Unter-
suchungsrichter) appointed two psychiatrists, Drs. G and K, as experts
to interview the applicant and prepare reports regarding his criminal
responsibility. On 28 February 1984, following a suggestion by Dr. G,
it further appointed a psychologist, Dr. Q, to examine the applicant.
Only Drs. G and Q, however, accomplished their tasks during the
investigation stage.
On 30 November 1983, the public prosecutor for Korneuburg
filed an indictment charging the applicant with murder under
Section 75 of the Penal Code (Strafgesetzbuch) and with illegal
possession of a firearm under Section 36 of the Firearms Act
(Waffengesetz). The applicant was further charged with aggravated
fraud (schwerer Betrug) under Sections 146 and 147 and breach of trust
(Untreue) under Section 153 of the Penal Code for unauthorised use of
the victim's professional current account for personal enrichment
during the applicant's employment by the victim. The indictment
alleged that dire financial straits had led the applicant to defraud
P and that the homicide was motivated by a desire to cover up the
misuse of the bank account. Finally, the indictment requested that
the applicant be committed to an institution for mentally abnormal
criminals (Anstalt für geistig abnorme Rechtsbrecher) under Section 21
of the Penal Code so that he be accorded intensive psychiatric
treatment. The public prosecutor based this plea on the reports of
Drs. G and Q who, while considering that the applicant was not
mentally ill to the extent that he could not appreciate the
wrongfulness of his act, did find that his "capacity to act with
insight was vastly reduced". The psychiatrist, Dr. G, found that the
applicant was suffering from a "grave personality disorder" which was
"tantamount to a penally relevant mental deviance of great dimension",
and that the crime was committed under the influence of this
personality disturbance.
The applicant's objection (Einspruch) to the indictment was
rejected by the Vienna Court of Appeal (Oberlandesgericht) on 20
December 1983. This Court considered, however, that a second
psychiatrist should be appointed as an expert. One of the judges
participating in that decision was W.
Subsequently, on 3 December 1984 the applicant challenged
W for bias as he had stated during a public news
conference that the applicant had used his judicial office only to
harass (sekkieren) people. On 14 January 1985, this challenge was
accepted by the Court of Appeal.
Regarding the appointment of a second psychiatrist, as ordered
by the Court of Appeal, the applicant, in a telephone conversation
with the presiding judge of the Regional Court of Korneuburg on
6 February 1984, suggested the names of two psychiatrists. According
to the applicant, the judge responded that Dr. K had to be appointed
because "the public prosecutor insists on it" and "I can't start a war
with the public prosecutor, I have to work with him". In an official
declaration the judge disputed this version, claiming he told the
applicant that Dr. K was appointed because he had originally been
appointed by the investigating judge. Thereupon, the applicant's
challenge of this expert was rejected by the Review Chamber
(Ratskammer) of the Korneuburg Regional Court on 18 April 1984.
In a later statement of 19 September 1988, the presiding judge
Ko declared that he had had doubts concerning the Court of Appeal's
decision ordering the taking of a second psychiatric expert opinion
in an interim procedure. Normally, the Court of Appeal should have
allowed the objection to the indictment and referred the case back to
the investigating judge with a view to obtaining a second psychiatric
expert opinion. He had discussed this matter with the above judge W
of the Court of Appeal who had shared his doubts but had explained the
Court of Appeal's decision by a concern not to compromise ("blamieren")
the public prosecutor's department at Korneuburg.
On 24 May 1984, the applicant terminated the mandate of his
freely chosen defence counsel due to a conflict of interest which had
developed in relation to a civil suit in which the applicant was
involved. When informing the Regional Court, the applicant
invoked his right under Article 6 para. 3 (c) of the Convention to
represent himself, objecting in advance to the assignment of an
official defence counsel (Pflichtverteidiger). On 25 May 1984,
defence counsel was nevertheless appointed on the ground that
representation by counsel was legally required in Assize Court
proceedings. The applicant's appeals against this decision to the
Constitutional Court (Verfassungsgerichtshof) and to the Vienna
Court of Appeal (Oberlandesgericht) were declared inadmissible.
On 13 June 1984, the trial (Hauptverhandlung) commenced before
a Court of Assizes of the Regional Court of Korneuburg sitting with a
jury (Geschworenengericht). Ko acted as presiding judge with F and R
as associate judges.
At the first session of the trial the applicant retracted his
confessions which he said were the product of a psychotic aberration.
He now asserted that P had committed suicide in his presence in
a garage in Vienna and he also made several discovery and evidentiary
motions aimed at proving this thesis. The trial was discontinued and
referred back to the investigating judge with a view to clarifying the
facts as now alleged by the applicant. The charges alleging the
misuse of P's bank account were then severed from the indictment
and were not pursued.
Following completion of supplementary investigations by the
investigating judge, a new trial began on 5 November 1984 before the
Court of Assizes which was now differently composed. Ko no longer
acted as presiding judge and was replaced in this function by former
associate judge R. F continued as associate judge together with a new
judge, Pr. A new jury of eight was also selected.
As regards the composition of the bench, the applicant has
submitted an affidavit (notariell beglaubigtes Gedächtnisprotokoll)
of the former presiding judge, Ko, dated 19 September 1988 which
contains, inter alia, the following statements:
When the case was first assigned to Ko, the distribution of
cases (Geschäftsverteilung) concerning Assize Court proceedings was
not regulated according to law in the Regional Court of Korneuburg.
The Vice-President of the Court asked Ko whether he wished to deal
with the applicant's case or another one. He replied that he would
deal with any case legally assigned to him. He was then charged with
the applicant's case. On the first day of the trial Ko was informed
by a judge of the Court of Appeal, B, that in the meantime measures
had been taken to regularise the distribution of cases in the
Regional Court so as to prevent complaints from the applicant.
Some time before the opening of the trial, the President of
the Court of Appeal, D, had come to see Ko in his office in the
Regional Court in order to enquire about the applicant's case. D
allegedly advised Ko to prevent the applicant from talking too much
at the trial and, if necessary, to turn him down ("abwürgen",
"niederbügeln"). During the trial, the associate judges, F and R,
also tried to influence him in this sense. However, Ko did not
interrupt the applicant and eventually the case was referred back to
the investigating judge. Although this was not a decision of the
presiding judge, the Vice-President of the Regional Court later
informed Ko that the Court of Appeal was dissatisfied with his conduct
of the trial which had led to this result and that the case would
therefore be taken away from him. Formally this was done by a
redistribution of cases within the Regional Court on the ground that
Ko had applied to be appointed to a different post. This, however,
was not the real ground as it must have been known to the persons
concerned, in particular the President and Vice-President of the
Regional Court, that he had no chance of being appointed to the post
in question.
All this was not known to the applicant at the relevant time.
However, at the trial the applicant repeatedly challenged the judges R
and F for bias.
The applicant had challenged the associate judge F
already before the opening of the second trial, on 30 October 1984,
together with two other judges of the Review Chamber of the
Korneuburg Regional Court, on the ground that they had used the
term "murder victim" in a decision handed down on 12 September 1984.
This challenge was rejected by the President of the Regional Court,
C, on 2 November 1984. C subsequently was challenged because of this
decision, but this challenge was also rejected. The applicant's
attempts to appeal further against these decisions were rejected as
inadmissible.
At the first trial session on 5 November 1984 the applicant
again challenged the associate judge F for bias because he had spoken
of "murder victim" and also because he had participated in several
other decisions of the Review Chamber. He submitted that members of
the Review Chamber must be considered as "investigating judges" within
the meaning of Section 68 para. 2 of the Code of Criminal Procedure,
and were excluded from participation in the trial by virtue of this
provision. He invoked his constitutional right to an independent and
impartial tribunal. This challenge was immediately rejected by the
bench of the Court of Assizes, including F himself.
As regards the presiding judge R, the applicant observes that
he had, on 18 July 1984, participated in a decision of the Review
Chamber ordering the applicant's continued detention under Section 180
para. 7 of the Code of Criminal Procedure which provides that in cases
of "grave suspicion" of offences carrying a minimum penalty of ten years'
imprisonment detention on remand shall as a rule be obligatory. In
the Review Chamber decision of 18 July 1984 the existence of such a
suspicion was stated in the following terms:
"Having regard to the initial confession, the
investigation and the indictment based thereupon
[the applicant is] gravely suspected of the crime
of murder despite the fact that he has now changed
his defence."
["Aufgrund des ursprünglichen Geständnisses, der
durchgeführten Erhebungen und der darauf basierenden
Anklageschrift trotz nunmehriger Änderung der
Verantwortung dringend des Verbrechens des Mordes
verdächtig"].
R had also participated in three further decisions of the
Review Chamber, including those dealing with the challenge of Dr. K
and the inspection of the applicant's diaries. However, the applicant
did not challenge R on the ground that he had been a member of the
Review Chamber. He claims that this fact came to his knowledge only
after the conclusion of the proceedings. Nor did the applicant
challenge the presiding judge R on the ground that at the beginning of
the trial he had ordered the applicant's continued detention under
Section 180 para. 7 of the Code of Criminal Procedure. The applicant
first challenged him at the trial session of 27 November 1987 for
having characterised one of the applicant's motions for evidence as
"querulous behaviour aimed at delaying the proceedings". This
challenge was immediately rejected by the bench, including R himself.
On 10 December 1984 the applicant again challenged the judges
R and F, complaining of a one-sided administration of evidence and the
rejection of the applicant's motions for evidence on the ground that
they had been made in order to delay the proceedings. The applicant
further complained that R had failed to intervene against prejudicial
remarks of the psychiatric expert, Dr. K (see below). As regards F,
the applicant again referred to his having used the term "murder
victim" and alleged, in addition, that during a demonstration of
evidence in a garage this judge had held a conversation with a
journalist instead of following the proceedings. The applicant finally
alleged violations of Article 6 para. 1 and Article 13 of the Convention
in that the bench, including the challenged judges, should decide on
the challenge and that no remedy existed against the bench's decision.
However, the bench, including judges R and F, rejected the above
challenge.
On the first day of the trial, the applicant also challenged the
court's selection of the jurors, claiming that the Jurors and Lay
Judges Act (Geschworenen- und Schöffenlistengesetz) of 1946 had not
been followed in that the decision to excuse or not to excuse certain
jurors had been taken by the presiding judge and not by the President
of the Regional Court. However, following information that the
relevant decisions had actually been taken by the Court's President
and that the order of the jury service list had been
observed, the applicant withdrew his motion (he claims that he
subsequently discovered that the information given to him had been
incorrect in that the order of the jury service list had not in fact
been observed). One juror, Mrs. B, had asked to be relieved from the
duty to sit as a juror because she had just lost her husband in an
accident and had now to run her farm alone and look after three
children and her disabled mother-in-law. She was nevertheless
appointed and not replaced when she burst into tears several times and
collapsed on the second day of the trial.
The trial court was in session for thirty court days and heard
the testimony of some forty-nine witnesses and the reports and
testimony of some eight experts. At least two visits to the scene
(Lokalaugenschein) were conducted and the applicant suffered an
emotional breakdown at one of these. The applicant submitted motions
for discovery and offers of evidence aimed at proving that his
original confessions stated something which was impossible, that he
was not in such financial straits as to have to defraud P, thus
providing a motive for the homicide, that P had himself
misappropriated money from clients and was guilty of both crimes and
unethical practices which led to a depressed, suicidal state of mind
and, finally, his suicide on 13 December 1982. These motions, made
personally by the applicant at twelve different court sessions, were
all rejected.
On 6 December 1984, the psychiatrist, Dr. K, testified and
read his report. He found in the applicant "above-average intelligence,
no mental illness which could deprive him of criminal responsibility,
but a psychic or mental abnormality of a high degree". In response to
a question by the applicant, Dr. K testified that two psychiatric
therapists, who had earlier treated the applicant during his
detention, disbelieved the suicide version and found it to constitute
a "disturbance of the trial", and considered it "trivial and a
transparent falsity". The applicant, invoking Article 6 para. 1 of
the Convention, objected to this testimony of Dr. K as being likely to
prejudge his guilt. He criticised the presiding judge for not having
reacted to these statements of the expert. The applicant further
submits in this context that on 12 November 1984 the presiding judge
overstepped his functions by sending a letter to the Federal Minister
of Justice asking him to lift the duty of confidentiality, which bound
the two psychiatric therapists who had treated the applicant during
his detention, so that they could testify at the trial. They actually
did so on 7 December 1984, but their duty of confidentiality was not
lifted by the Minister of Justice.
It appears from the documents submitted by the applicant, who
was assisted by a court-appointed defence counsel, that virtually all
of the written and oral motions and objections made before and during
the trial were made personally by the applicant. The applicant also
questioned at least some of the witnesses and experts, such as Dr. K.
He was not, however, given personal discovery or inspection rights.
He states that he and his counsel disagreed on trial strategy and that
no relation of confidence existed between them.
On 17 December 1984, the applicant asked the Court to be
allowed to be present at the oral instruction of the jury and the
discussion of the questions submitted to them. This motion was
denied and these proceedings were conducted in the absence of the
defence, i.e. the applicant and his defence counsel. Nor was
a representative of the prosecution present at this procedure.
On 18 December 1984, the jury unanimously found the applicant
guilty of murder and unlawful possession of a firearm. They
were also unanimous in finding that he did not lack criminal
responsibility and, in their handwritten statement of reasons
(Niederschrift der Geschworenen), expressed the opinion that "the
motive remains unknown, too many possibilities".
The bench, sitting with the jury, set the applicant's sentence
at twenty years' imprisonment, the maximum determinate sentence
possible under Austrian law. It ordered him to be committed to an
institution for mentally abnormal criminals as requested by the
prosecution. Detailed reasons, weighing mitigating and aggravating
factors, were given for this sentence. Finally, the Court refused to
rule on the claims of the private parties, referring them to the
ordinary civil courts.
On 4 January 1985 the applicant complained to the Court of
Appeal by way of hierarchical appeal (Aufsichtsbeschwerde) that he had
not received the judgment within the statutory time-limit of fourteen
days. On 21 January 1985 he challenged the presiding judge, R, on the
same ground, claiming that the delay, which hindered the applicant in
preparing his appeals, revealed bias on the part of that judge.
However, the Court of Appeal on 22 January 1985 rejected the
hierarchical appeal finding that the delay was justified by the
necessity to prepare also the voluminous transcript of the trial for
the applicant's use. Relying on this decision, the President of the
Regional Court on 23 January 1985 rejected the challenge of the
presiding judge.
The applicant lodged complaints against the judgment of the
Court of Assizes both with the Constitutional Court and the
Administrative Court, claiming that, due to the procedure for
appointing the jury, the Court of Assizes could not be considered as
an independent and impartial tribunal within the meaning of the
Federal Constitution. These complaints were rejected as inadmissible
by decisions of the Constitutional Court of 14 March 1985 and of the
Administrative Court of 12 June 1985.
The applicant also filed a plea of nullity (Nichtigkeits-
beschwerde) with the Supreme Court (Oberster Gerichtshof) complaining
that he had been denied the right to defend himself, and the right to
a fair trial due to the bias of judges, that all offers of proof had
been rejected, that comments of Dr. K were prejudicial and that he was
excluded from the oral instructions of the jury.
The applicant's mother and wife filed a further plea of
nullity and an appeal (Berufung) with the Supreme Court complaining of
the length of the sentence and the commitment of the applicant to an
institution for mentally abnormal criminals.
The public prosecutor appealed against the sentence and asked
that a life sentence be imposed.
Finally, the son of the victim P, being one of the private
parties, appealed against the decision to refer his claims to the
ordinary civil courts.
The Supreme Court transmitted the case file to the Attorney
General (Generalprokurator). The Attorney General's position paper
("croquis") was received by the Supreme Court on 2 August 1985. The
applicant moved for personal discovery of this report on
18 September 1985.
On 4 June 1986, the Supreme Court set the hearing on the pleas
of nullity and the appeals for 2 July 1986. The applicant claims that
the relevant notification of the Attorney General was accompanied by
the file including the Supreme Court's draft decision prepared by its
judge rapporteur. The applicant further submits that according to an
official statement of the judge rapporteur the draft decision was
discussed between the members of the Supreme Court prior to the oral
hearing. The Government admit that such a draft decision was
in the file, but deny that it was ever made available to the Attorney
General or that informal votes on the decision to be taken by the
Supreme Court were taken prior to the hearing on 2 July 1986.
The notification of the date of the Supreme Court's hearing
which was sent to the applicant provided that at the hearing of the
pleas of nullity the applicant could only appear through his official
defence counsel; at the hearing of the appeals he would not be brought
to the Court as the conditions of Section 296 para. 3 of the Code of
Criminal Procedure were not met.
On 19 June 1986, the applicant petitioned the Supreme Court to
be allowed to attend the hearing of the pleas of nullity in person, a
right accorded to defendants who are not incarcerated. In this
respect he invoked Articles 6 and 14 of the Convention and observed
that in 1986 alone he had been granted permission thirty times to
appear personally at various courts and administrative authorities in
Vienna. At the same time the applicant observed that no decision had
so far been taken on his request to get a copy of the Attorney
General's "croquis" and that a procedure whereby the Attorney General,
but not the defence, was informed of the views of the members of the
Supreme Court on the various remedies would violate the principle of
equality of arms stipulated in Article 6 of the Convention.
On 25 June 1986 the Supreme Court rejected the applicant's
petition to be brought to the hearing on the pleas of nullity and his
motion to discover the "croquis" of the Attorney General and to
inspect the case file. The Supreme Court noted that the applicant had
not applied to be brought to the hearing of the appeals. It had no
doubts concerning the constitutionality and conformity with Article 6
of the Convention of Section 286 para. 2 of the Code of Criminal
Procedure which stipulates that an accused in detention has no right
to appear personally at the hearing of a plea of nullity, but only a
right to be represented by counsel. Moreover, the applicant
personally was not entitled to receive a copy of the Attorney
General's "croquis". Article 6 of the Convention had been observed
because a copy of this document had been made available to his
official defence counsel. The applicant's defence counsel was
notified of this decision at the hearing on 2 July 1986.
On 2 July 1986, in the absence of the applicant and after
having obtained some factual clarifications from the trial court under
Section 285 f of the Code of Criminal Procedure on which the applicant
was not given an opportunity to comment, the Supreme Court rejected
the applicant's and his relatives' pleas of nullity. It allowed both
the public prosecutor's appeal and in part the appeal of the
applicant's relatives, sentencing the applicant to life imprisonment
and nullifying the commitment to an institution for mentally abnormal
criminals, the applicant thus being required to serve the life
sentence in prison. Finally, the Supreme Court rejected the private
party's appeal.
According to the applicant, the Supreme Court's decision is a
replica of the "croquis" of the Attorney General. The Supreme Court
evaluated the aggravating and mitigating circumstances discussed by
the trial court and found that it had incorrectly refused to recognise
the applicant's self-surrender as a mitigating circumstance under
Section 34 para. 16 of the Penal Code. However, taking the mitigating
and aggravating circumstances as a whole, it considered that the
latter by far outweighed the former, including the applicant's
abnormal mental condition at the time of committing the crime. The
treacherous crime, approaching a "liquidation" of the unsuspecting
victim in order to prevent the discovery of the applicant's own
financial improprieties, showed such a base state of mind that only a
life sentence was proportionate to his guilt.
COMPLAINTS AND LEGAL SUBMISSIONS
The applicant complains under Article 6 para. 1 of the
Convention that the Assize Court, sitting with jury, was objectively or
structurally not an "independent and impartial tribunal". Two of the
three members of the bench at his trial had participated in decisions
of the Review Chamber of the Regional Court involving preventive
detention, challenges of an expert witness, and confiscation of the
applicant's diaries, thus mingling functions of an investigative or
inquisitorial nature with those of a trial judge.
The applicant also challenges the structural "independence
and impartiality" of the jury in that the compiling of the lists of
prospective jurors is arbitrary and suffused with partisan politics,
that the jurors are selected without any participation of the opposing
parties, and that no mechanism exists enabling the accused to
determine whether or not a prospective juror is biased, and therefore
to intelligently challenge a hypothetically biased juror.
Under Article 6 para. 1 the applicant also complains that two
of the trial judges revealed prejudice in their trial rulings,
comments and interventions. The bench acted illegally in its
selection of the jury by violating Austrian statutes and excusing
or not excusing prospective jurors in an arbitrary manner.
Finally, the applicant alleges a violation of Article 6 para.1
of the Convention in that a judge of the Court of Appeal, W,
participated in the rejection of his objection against the
indictment. The judge concerned was found to be biased against the
applicant at a later hearing.
The applicant complains of a global violation of Article 6 at
his trial as a result of a cumulation of individual violations of
various rights enumerated therein.
The applicant alleges violations of the presumption of
innocence guaranteed by Article 6 para. 2 of the Convention in that
the prosecution relied on his original confession and in that the
Court placed the burden on the applicant to prove lack of criminal
responsibility; moreover the Court appointed a psychiatrist with a
close relationship to the prosecution and who, testifying as an
expert, improperly expressed opinions as to the applicant's guilt and
the spuriousness of his defence.
The applicant also attacks the Austrian system of
court-appointed psychiatric experts as violating his right to
present evidence on his own behalf. He asserts that the court
psychiatric experts have traditionally worked in close contact with
the public prosecutor and that their function strips them of
independence and impartiality. In these circumstances, the denial
of his motion to have a faculty psychiatric opinion from an Austrian
university (Fakultätsgutachten) on the question of criminal
responsibility, violated the "equality of arms".
The applicant further claims that Article 6 para. 3 (d) of the
Convention was violated in that he was denied the attendance and
examination of witnesses and the presentation of other evidence on his
own behalf under the same conditions as allowed the prosecution; all
his offers of proof to gather and submit evidence were rejected as
being "exploratory" (Erkundungsbeweis).
The applicant additionally complains of a violation of
Article 6 para. 3 (c) of the Convention in that he was denied his
right to represent himself by having a court-appointed defence counsel
forced on him by the trial court, although as a former judge, the
applicant was capable of representing himself.
The applicant finally complains of the exclusion of the
defence from the bench's oral instructions to the jury and the
discussions of the questions submitted to them for decision. He
submits that, since no instructions of the jury preceded the taking of
evidence, there was no way for the parties to know if the jury
understood the law it was asked to apply; thus secrecy of the
instructions and discussion of questions leaves room for manipulation
by the bench.
Regarding the proceedings before the Supreme Court, the
applicant claims that the special position accorded the Attorney
General in the hearing of nullity pleas and appeals violates Article 6
para. 1 of the Convention by undermining the Court's "independence and
impartiality". This close relationship between the Court and the
Attorney General, a prosecutorial agency, violates the principle of
"equality of arms" as well. Despite previous decisions by the
Convention organs aimed at changing the long tradition of dependence
of the Supreme Court on the Attorney General, the practices still
violate the Convention. The Supreme Court sends the Attorney General
the entire case file long before the defence has access thereto, as
well as the draft decision of the Supreme Court's judge rapporteur,
to which the defence has no access. The Attorney General will then
provide a position statement or "croquis" which is traditionally used
by the Supreme Court as the basis for its final decision. This in
itself constitutes an unfair disadvantage to the defence and a
violation of the "equality of arms". This equality was also violated
because the Attorney General was told which Chamber of the Supreme
Court would deal with the case and who was the Supreme Court's
rapporteur. This information was not available to the defence.
A further violation of the "equality of arms" is alleged in
regard to the Supreme Court's procedure under Section 285 f of the
Code of Criminal Procedure, whereby the Court obtained additional
information on evidence which only came to light in the appeal
proceedings and on which the defence was not given any opportunity to
be heard.
The applicant alleges a global violation of his Article 6
para. 1 right to a fair hearing on appeal in that the Supreme Court
decided on the pleas of nullity and appeals without seeing the
applicant, without a transcript of the trial and without questioning
the experts.
In raising the applicant's sentence of twenty years in an
institution for mentally abnormal criminals to a life sentence in
prison, the Supreme Court furthermore relied on a motive of covering
up criminal fraud conduct which had not been proved and had been
found to be unconvincing by the jury. This reliance on unproved
evidence also violated the presumption of innocence.
The applicant further complains that the Supreme Court
violated Article 6 para. 3 (c) of the Convention by denying his
request to be present at the hearing of the plea of nullity. He
asserts that the right to defend himself in person at an appeal
hearing is essential to fair trial where the Supreme Court can
increase the sentence. The Supreme Court's failure to advise him or
his defence counsel of the denial of his motion to be present until
the day of the hearing also violated his right under Article 6
para. 3 (b) of the Convention to have adequate time for the
preparation of his defence.
In addition the applicant asserts that Article 14 of the
Convention, in conjunction with Article 6 para. 3 (c), was violated
in that appellants who are not detained have the right to attend
hearings before the Supreme Court and, in particular, have the right
to the last word.
The applicant also alleges a violation of Article 14 in
conjunction with Article 5 of the Convention in that the Supreme Court
found that he had acted with extreme "treacherousness" (Heimtücke)
despite the undisputed evidence of mental or psychic impairment.
Finally, the applicant complains of a violation of Article 13
in that there are no sufficient domestic remedies in Austria to
challenge violations of Article 6. Thus it is not possible to
challenge the constitutionality of Austrian legislation, the
composition of the jury, and decisions on bias of judges and experts,
on self-representation and on the right to be present at the appeal
hearing before the Supreme Court.
PROCEEDINGS
The application was introduced on 1 August and registered on
22 August 1986. On 19 January 1989 the Commission decided, pursuant
to Rule 42 para. 2 (b) of the Rules of Procedure, to bring the
application to the notice of the respondent Government and to invite
them to submit before 7 April 1989 their observations in writing on
its admissibility and merits.
Following an extension of the above time-limit at the request
of the Government, they submitted their observations on 23 May 1989.
The applicant was requested to reply thereto before 10 July 1989. At
his request, the time-limit was extended and he submitted his
observations on 18 August 1989.
On 2 April 1990 the Commission decided to invite the parties,
pursuant to Rule 42 para. 3 (a) of the Rules of Procedure, to submit
further observations in writing before 15 June 1990 and, pursuant to
Rule 42 para. 3 (b), also to submit observations orally at a hearing
on the admissibility and merits of the case. Questions were put to
the parties in this context.
After both parties had been granted extensions of the above
time-limit, the applicant submitted additional observations on 29 June
and the Government on 17 July 1990.
The oral hearing of the parties took place on 5 September 1990.
The Government were represented by their Agent, Ambassador Dr.
Helmut Türk of the Federal Ministry of Foreign Affairs, assisted by
Ministerialrat Dr. Wolf Okresek of the Federal Chancellery and
Ministerialrat Dr. Gert Felsenstein of the Federal Ministry of Justice.
The applicant was represented by his counsel, Rechtsanwalt Dr.
Wilfried Ludwig Weh of Bregenz, assisted by Mrs. Eva Weh.
THE LAW
1. The applicant first complains of the composition of the
Korneuburg Court of Assizes which he claims was not an "independent
and impartial tribunal established by law" as required by Article 6
para. 1 (Art. 6-1) of the Convention.
a) The applicant submits with regard to the procedure for the
appointment of the jury, as regulated in the Austrian Jurors' and Lay
Judges' Act 1946, that the parties do not assist in the selection of
the jury which allegedly is subject to political influences and that
in his case the procedure followed was unlawful in that the jury was
in fact selected by the presiding judge of the trial rather than the
President of the Regional Court. The applicant withdrew his initial
objections against the procedure after having been led in error by the
presiding judge. The decisions to excuse or not to excuse certain
jurors were arbitrary. The excuse of Mrs. B, who had personal
problems and suffered a nervous breakdown during the trial, should
have been allowed. Finally, the substitute jurors were not appointed
in the right order.
The Government submit that the provisions of the Jurors' and
Lay Judges' Act 1946, which have in the meantime been replaced by new
legislation, were in line with the standard in other Convention States
and not contrary to the Convention. In particular Article 6 para. 1
does not require participation of the parties in the selection of the
jury. It is sufficient that under Austrian law individual jurors can
be challenged as biased and that the impartiality of the court is
ensured in this way. The applicant withdrew his initial objections to
the procedure and did not subsequently lodge a plea of nullity
concerning the composition of the jury, as he could have done under
Section 345 para. 1 (1) of the Code of Criminal Procedure. He
therefore did not exhaust the domestic remedies in this respect. In
any event the jury was composed according to the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission may leave open whether or not the applicant has
exhausted all domestic remedies as the above complaint is inadmissible
on another ground.
The Commission is satisfied that the decisions concerning the
selection of the jury were taken by the competent organ, i.e. the
President of the Regional Court, according to the applicable
provisions of the Jurors' and Lay Judges' Act. It is not contrary to
Article 6 para. 1 (Art. 6-1) that this Act did not allow the
participation of the parties in the selection of the jury.
Nor is it contrary to this provision that some discretion was
left to the Court's President as regards the acceptance or refusal of
excuses by persons included in the jurors' lists. In a system
primarily based on a chance selection of the jurors the exercise of
such discretionary powers is not arbitrary even assuming that, in the
case of Mrs. B., a different decision might have been more
appropriate. The Commission notes that this juror was able to
exercise her functions normally after her nervous breakdown at one
stage of the proceedings. In any event substitute jurors were present,
according to the law, who could have been called in if one of the main
jurors had not been able to exercise his functions. The Commission
finds no indication that any of the decisions concerning the selection
of the jurors was based on their opinions or attitudes. It has not
been claimed that any of the jurors was biased.
The Commission therefore finds that the applicant's right to
an "independent and impartial tribunal established by law" has not
been infringed by the selection and composition of the jury.
b) The applicant complains that two of the professional judges,
including the presiding judge, lacked both objective and subjective
impartiality.
The presiding judge allegedly lacked objective impartiality
because he had taken part in a number of Review Chamber decisions
involving directions for the investigation (inter alia supervision of
the applicant's correspondence, inspection of his personal diaries
which contained notes on his conversations with his defence counsel,
refusal of requests for evidence and rejection of objections against
an allegedly biased psychiatric expert). He had further made rulings
on the prolongation of the applicant's detention on remand, and in
this context assessed the suspicion against the applicant, as a member
of the Review Chamber and subsequently, at the beginning of the trial,
in his capacity as presiding judge. In the latter capacity he had
also shown subjective bias against the applicant by failing to
intervene against certain statements of the above psychiatric expert,
by writing a letter to the Minister of Justice concerning the lifting
of the duty of confidentiality of medical officers who had treated the
applicant, and by rejecting one of the applicant's requests for
evidence on the ground that it amounted to "querulous behaviour aimed
at delaying the trial".
The applicant claims that the second judge concerned
also lacked objective impartiality in that he had taken part in
Review Chamber decisions, and that he was subjectively biased
in that he had shown preconceived ideas about the case by using the
words "murder victim" and "instrument of the act" which were
incompatible with the applicant's defence based on suicide. Moreover,
this judge failed in his duties by not giving his full attention to a
demonstration of evidence and instead conversing with a journalist.
The Government claim that the above two judges were impartial
both from the objective and the subjective point of view. Participation
in Review Chamber decisions is not as such a circumstance susceptible
of undermining a judge's impartiality at the trial, because the Review
Chamber's functions are different from those of the investigating
judge whom it supervises. In the particular case of a jury trial, the
professional judges of the bench are not called upon to take part in
the finding of guilt, which is the exclusive task of the jury, and
also for this reason their impartiality cannot be seen as being
compromised by their earlier participation in Review Chamber
decisions. The decisions on the prolongation of the applicant's
detention on remand did not involve the assessment of a qualified
suspicion as in the Hauschildt case (Eur. Court H.R. judgment of
24 May 1989, Series A no. 154) and therefore the presiding judge's
objective impartiality was not compromised. Nor did his conduct at
the trial reveal subjective bias. The statements of the psychiatric
expert cannot be imputed to the court and an intervention against
these statements by the presiding judge was not required because the
applicant was given an opportunity to reply. Finally, the use of
certain words by the presiding judge and one of the assistant judges,
if placed in the right context, also did not reveal subjective bias.
The term "instrument of the act" was a neutral one, the term "murder
victim" just a repetition of the words used in the relevant
application by a private party, and the words "querulous behaviour"
finally were used in relation to a matter of minor importance and in
circumstances where they appeared justified.
Impartiality means that even the appearance of partiality
must be avoided (cf. Eur. Court H.R. Piersack judgment of 1 October 1982,
Series A no. 53, and De Cubber judgment of 26 October 1984, Series A
no. 86). The Commission does not consider that the impartiality of the
judges on the bench of a jury trial is subject to a different standard
because they do not take part in the votes on the verdict. In Austria
they have an important role concerning the direction of the trial,
including in particular the taking of evidence and the legal instruction
of the jury - they can set aside the verdict and they also participate
in the vote on the sentence. It is therefore required that they be
fully impartial.
However, the earlier participation of trial judges in
decisions of the Review Chamber supervising the investigation does not
create an appearance of partiality, in particular if, as in the
present case, the decisions in question relate only to isolated
aspects of the investigation and do not involve a decision on whether
or not the accused should be brought to trial or otherwise a general
assessment of the evidence or legal issues to be discussed at the
trial (cf. No. 9976/82, Ben Yaacoub v. Belgium, Comm. Report 7.5.85,
Series A no. 127A, p. 13 paras. 103 et seq.). The two judges who had
taken part in Review Chamber decisions supervising the investigation
of the applicant's case therefore did not lack objective impartiality
for this reason.
The presiding judge was involved in two decisions on the
prolongation of the applicant's detention on remand which were based
on Section 180 para. 7 of the Austrian Code of Criminal Procedure.
The Review Chamber decision of 18 July 1984 to which the applicant has
especially referred rested on formal criteria (confession,
investigation, indictment), which were not discussed in substance. The
applicant's new defence was also mentioned, but apparently found
insufficient to undermine the suspicion of murder. The qualification
of the suspicion as "grave" ("dringend"), did not mean a "particularly
confirmed suspicion" or a "very high degree of clarity as to the
question of guilt" as in the Hauschildt case (Eur. Court H.R. judgment
of 24 May 1989, loc. cit., p. 22 paras. 51 - 52). The decision on the
applicant's detention thus remained within the boundaries of suspicion
and did not improperly encroach upon the trial court's tasks i.e. the
determination of the defendant's guilt (cf. Hauschildt judgment, ibid.,
para. 50). There is accordingly no appearance of the presiding judge
lacking objective impartiality because of his involvement in the above
decisions on the applicant's detention.
Nor is there any appearance of subjective bias against the
applicant on the part of the two judges concerned. The conduct of a
long and difficult trial necessarily required a number of procedural
decisons to be taken by the presiding judge. That some of these
decisions were unfavourable to the applicant cannot in itself be seen
as indicating bias. That the presiding judge did not intervene
against a statement of a psychiatric expert does not mean that he
approved this statement, in particular as he gave the applicant the
opportunity to reply immediately. The presiding judge's letter to the
Minister of Justice may have been unusual, but clearly aimed at the
clarification of certain facts and did not interfere with the
applicant's defence. Finally, the rejection of a request for evidence
on the ground that it was "querulous behaviour aimed at delaying the
trial" may have been justified in the circumstances. In any event it
did not amount to a premature rejection of the applicant's line of
defence as a whole nor did it reveal a generally unfavourable attitude
of the presiding judge towards the applicant.
As to the words used in a decision for which one of the
associate judges was co-responsible, the Commission agrees with the
Government that the term "instrument of the act" (Tatwaffe) is a
neutral expression not susceptible of justifying an assumption of
subjective bias. The expression "murder victim" ("Mordopfer") did not
take account of the applicant's defence which was based on a suicide
version. However, the judge explained this as an inconsiderate
repetition of the words used in the relevant application by a private
party. This application concerned a minor item unrelated to the
central issue in the case. The Commission therefore does not find
that the use of this expression revealed a biased attitude of the
judge concerned towards the applicant. Finally, the Commission also
sees no indication of bias in the conversation of this judge with a
journalist during a demonstration of evidence.
The complaints of the applicant concerning the composition of
the Korneuburg Court of Assizes are therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant next complains that before this Court he did not
enjoy a "fair hearing" as required by Article 6 para. 1 (Art. 6-1) of
the Convention and that his rights under Article 6 para. 3 (c)
(Art. 6-3-c) (the right to defend himself in person) and (d) (Art. 6-3-d)
(the right to the examination of witnesses on his behalf under the
same conditions as witnesses against him) were also violated as well
as the presumption of innocence enshrined in Article 6 para. 2
(Art. 6-2). The Commission finds it appropriate to examine first the
various specific complaints before proceeding to a global assessment
of the fairness of his trial.
a) Invoking his right "to defend himself in person" under Article
6 para. 3 (c) (Art. 6-3-c) of the Convention, the applicant claims
that at his trial he should as a former judge have been allowed to
defend himself without the assistance of an official defence
counsel. The imposition of a counsel in whom he had no confidence
interfered with his general line of defence; in a number of
instances he and his defence counsel disagreed and Austrian law gave
precedence to the counsel's position. Moreover, following the
appointment of an official defence counsel he could not personally
exercise certain rights such as the right to make procedural
applications or the right to inspect the file.
The Government submit that the legal requirement of
representation by counsel in Assize Court proceedings serves the
protection of the accused and that the applicant practically conducted
his defence himself.
The Commission has consistently held that a legal requirement
of representation by counsel in certain types of proceedings does not
as such violate Article 6 para. 3 (c) (Art. 6-3-c). This provision
guarantees inter alia that proceedings against the accused will not
take place without adequate representation for the defence if this is
required by the interests of justice and the accused is unable to pay
for it. The accused has no absolute right to determine the manner in
which his defence is ensured. The States may regulate the conditions
under which the accused is authorised to exercise the right to
defend himself in person (cf. No. 2676/65, Dec. 3.4.67, Coll. 23
p. 31; No. 2645/65, Dec. 19.7.68, Coll. 28 p. 43; No. 5923/72, Dec.
30.5.75, D.R. 3 p. 43; and No. 9127/80, Dec. 6.10.81, D.R. 26 p.
238). They may also require that an accused represented by a lawyer
must generally exercise his procedural rights through this lawyer
(No. 7138/75, Dec. 5.7.77, D.R. 9 p. 50) and regulate the
appearance of counsel before courts and their obligation to respect
certain principles of professional conduct (No. 7572/76, 7586/76 and
7587/76, Ensslin and others v. the Federal Republic of Germany, Dec.
8.7.78, D.R. 14 p. 64).
The Commission, however, points out that having regard to the
text of Article 6 para. 3 (c) (Art. 6-3-c), which expressly mentions
the right of the accused to defend himself in person, the regulations
in question must give sufficient scope to this right and any
limitations must be based on the interests of justice, including the
protection of the accused himself.
The Commission considers that the above principles have been
observed in the present case. The interests of justice may require
legal representation of the accused even if he is an experienced
lawyer. Even if the accused is an experienced lawyer, he may not
always be able to act in his own best interests, in particular if
there is evidence of a possible psychiatric impairment. Insofar as
the applicant claims that he had no confidence in his official defence
counsel, it would have been open to him to ask for his replacement or
to appoint a lawyer of his own choice, as he had in fact done at the
first stage of the proceedings. Moreover the Commission finds no
indication of a fundamental disagreement between the applicant and his
official defence counsel. As the Government observe, the applicant
largely conducted his defence himself and his official counsel limited
himself to supporting and ratifying the applicant's various requests
and submissions.
In these circumstances the Commission finds no appearance of
a violation of the applicant's right under Article 6 para. 3 (c)
(Art. 6-3-c) to defend himself at his trial.
b) The applicant submits that these proceedings were opened
following an irregular procedure by the Court of Appeal: one of the
judges was biased against the applicant as later confirmed by the
Court of Appeal in its decision of 14 January 1985. The Court of
Appeal should have accepted his objection to the indictment and should
have ordered a supplementary investigation rather than the taking of
additional psychiatric expert evidence in an interim procedure.
The Government claim that the Court of Appeal's decision to
reject the applicant's objection against the indictment was taken on
20 December 1983, whereas the applicant did not complain of it before
1 August 1986. Therefore the complaint was raised outside the six
months' time-limit stipulated in Article 26 (Art. 26) of the
Convention. In any event this decision did not involve a
determination of the criminal charges against the applicant. In the
Government's view the decision was lawful and at the relevant time
there were no grounds to doubt the objective impartiality of the
above judge, such grounds having arisen only at a later date.
The Commission accepts that the Court of Appeal was not
directly called upon to determine the criminal charges against the
applicant. Nevertheless its decision on the admission of the
indictment was relevant for the trial and therefore for the fairness
of the proceedings as a whole, which can only be judged after the
termination of the proceedings. Therefore the Commission cannot
reject the applicant's above complaints for non-compliance with the
six months' rule, but must deal with its substance.
The Commission is not required to consider the lawfulness of
the Court of Appeal's decision under Austrian law. It may leave open
whether the requirement of "impartiality" also applies to a court
which decides on the admission of the indictment, as in the present
case there was no reason to doubt the impartiality of the Court of
Appeal's judges at the relevant time. Its decision to order a second
psychiatric expert opinion to be taken before the start of the trial
does not appear unfair as the consultation of a second psychiatrist
had in fact already been decided by the investigating judge. The
Commission further notes that the subsequent statement of one of the
Court of Appeal's judges at a press conference provided a ground for
his successful challenge, but this cannot retroactively deprive the
Court of Appeal's decision of its justification. Consequently there
is no appearance of a violation of Article 6 para. 1 (Art. 6-1) of
the Convention by virtue of the Court of Appeal's procedure.
c) The applicant complains that the second psychiatric expert
then appointed was biased against him; that this appointment was based
on a request by the prosecution, and that at the trial this expert
made inadmissible statements prejudging the applicant's new defence
based on the suicide version which was described as incredible, having
regard to declarations of two therapists who had treated the applicant
during his detention and to which the above-mentioned expert
referred. The presiding judge not only failed to intervene against
the expert's statements, but even reacted to them by writing a letter
to the Minister of Justice in which he requested that the duty of
confidentiality which bound the therapists be lifted. The applicant
claims that the circumstances surrounding the hearing of the
above-mentioned expert made the whole trial unfair.
The Government refer to the first presiding judge's statement
that the expert was appointed, not because of an intervention of the
prosecution, but because he had already been appointed by the
investigating judge. In the Government's view this expert was not
biased, in fact his opinion was not expressed in an excessive manner
as he adopted a cautious approach concerning the therapists'
statements. The applicant was given an opportunity to reply
immediately. The presiding judge's letter to the Minister of Justice
aimed at a clarification of the facts and in no way undermined the
applicant's defence. The therapists were heard at the trial, but
could not testify on the question of the applicant's new defence
because their duty of confidentiality had not been lifted by the
Minister. The Government see no unfairness of the proceedings on
account of these facts.
The Commission has already found above that the hearing of the
second psychiatric expert did not involve subjective bias on the part
of the presiding judge. It sees no reason to regard the procedure
adopted as unfair. It was not unfair to appoint the expert who had
been called in at the investigation stage but who had not carried out
his functions at that stage. The applicant's allegations concerning
statements of the first presiding judge during a telephone
conversation on 6 February 1984 are not corroborated by any objective
evidence. Even assuming that the prosecution had insisted on the
consultation of this particular expert, this would not have made his
hearing unfair.
The expert's critical remarks concerning the applicant's new
defence did not, in the Commission's view, constitute an element of
unfairness. They were cautious and the expert refrained from adopting
the views of the two therapists as his own opinion. He merely
referred to their statements which concerned a central aspect of the
case.
The Commission sees no reason why the presiding judge should
have intervened against the expert's statements. He gave the
applicant an opportunity to reply immediately. The writing of a
letter to the Minister of Justice may have been unusual but cannot be
regarded as unfair. The principle of objectivity was observed because
the therapists to which the letter referred could also have given
evidence in the applicant's favour. Ultimately they were not heard
because their duty of confidentiality was not lifted. There was
therefore no direct evidence before the Court on the motives of the
applicant's new defence, but this cannot be regarded as unfair.
d) The applicant has also complained that generally the
administration of the evidence was one-sided, in that experts heard at
the trial tend to have biased views because of their involvement in
the investigation where there is close co-operation with the
prosecution, and in that most requests for evidence by the defence
were rejected while those of the prosecution were allowed, sometimes
even when they concerned the same item. He invokes his right under
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention to the
examination of witnesses on his behalf under the same conditions as
witnesses against him.
The Government deny a violation of this provision and
generally refute the allegation that the administration of the
evidence in the applicant's case was unfair. The Court carefully
examined not only the prosecution's charge of murder, but also the
applicant's defence based on the suicide theory. The experts did not
base their opinions merely on the file, but also on their own
independent observations. The Supreme Court thoroughly scrutinised
each of the applicant's requests for evidence and found that their
rejection was justified for objective reasons.
The Commission notes that the first trial was interrupted
because the applicant, changing his defence, relied on the suicide
version. A supplementary investigation was carried out and at the
second trial the Court dealt very extensively with the applicant's new
defence arguments. The Commission notes that numerous requests for
evidence submitted by the applicant were rejected, but finds no
indication that generally the evidence for the defence was not
examined under the same conditions as the evidence for the
prosecution.
This also applies to the administration of the expert evidence
in the present case. The Commission finds no basis for the allegation
that any experts who have taken part in the investigation cannot be
regarded as neutral. The applicant has not shown why an individual
expert could not be regarded as neutral and, in addition, that he was
not allowed to call in a counter-expert on behalf of the defence (cf.
Nos. 11170/84, 12876/87 and 13468/87, Brandstetter v. Austria, Comm.
Report 8.5.90, para. 148). He has failed to substantiate his
allegations in this respect. He did not request the appointment of
counter-experts on the ground that the experts consulted were not
neutral. In respect of the above-mentioned psychiatric expert whom he
challenged as biased, he requested his replacement but not the
appointment of an additional expert. There was, in fact, a second
psychiatric expert whose neutrality the applicant did not challenge.
The Commission considers that in these circumstances the rejection of
the applicant's request for a faculty opinion did not amount to a
violation of his rights under Article 6 para. 3 (d) (Art. 6-3-d) in
isolation or in conjunction with Article 6 para. 1 (Art. 6-3-d+6-1).
The situation complained of is not comparable to that in the Bönisch
case (Eur. Court H.R. judgment of 6 May 1985, Series A no. 92).
Nor is there any appearance of a violation of Article 6
para. 3 (d) (Art. 6-3-d) or Article 6 para. 1 (Art. 6-1) as regards
the administration of evidence in other respects.
e) Still with regard to the administration of the evidence, the
applicant alleges a violation of the presumption of innocence as
guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention, in that
he was subjected to a reversal of the burden of proof as regards his
criminal responsibility and that undue reliance was placed on his
original confession, and in that the presiding judge did not
intervene against the statements of the second psychiatric expert.
The Commission finds no indication of a violation of the
presumption of innocence. There was no reversal of the burden of
proof. The prosecution was required to prove the charges in the
indictment. It could rely on the applicant's original confession. It
was further required to prove the applicant's criminal responsibility.
The applicant was free to submit arguments in his defence concerning
both issues, but was not required to prove his innocence or his lack
of criminal responsibility. Neither the psychiatric expert's
statements nor the presiding judge's conduct of the hearing of this
expert affected the presumption of innocence under Article 6 para. 2
(Art. 6-2).
f) Finally, the applicant claims that the proceedings were unfair
and contrary to Article 6 para. 1 (Art. 6-1) of the Convention because the
parties were not allowed to be present at the legal instruction of the
jury by the presiding judge (Section 323 of the Code of Criminal
Procedure). He stresses the importance of the summing up and claims
that the absence of the parties may lead to improper manipulation of
the jury by the presiding judge, although the presiding judge is
required to prepare a written memorandum on the legal instruction
which can be controlled in subsequent nullity proceedings.
The Government deny a violation of the right to a "fair and
public hearing" by this procedure. They submit that the rights to a
public hearing and equality of arms end with the conclusion of the
trial hearing. The parties obtain the questions to be answered by the
jury and the written memorandum on the legal instruction at the end of
this hearing and this is sufficient to satisfy the right to a fair
hearing. The subsequent meeting of the presiding judge with the jury
is exclusively aimed at preparing the jurors, who have no training as
judges, for their task. It is thus part of the court's deliberations
which subsequently lead to the passing of judgment. A right of the
parties to take part in these deliberations cannot be derived from
Article 6 para. 1 (Art. 6-1). The Austrian regulation corresponds to
the European standard - there are several other Contracting States
(including Switzerland, Italy, France, Finland and Greece) where the
summing up and legal instruction of the jury also take place in the
absence of the parties.
The Commission accepts that a distinction must be drawn
between the requirements of "fair hearing" and "public hearing" in
Article 6 para. 1 (Art. 6-1). The "fair hearing" requirement concerns
the criminal proceedings as a whole; it can also be violated at the
stage of the proceedings which concerns the preparation of the
judgment. However, the applicant has not substantiated that the
proceedings in the present case have been unfair at this stage. In
essence he claims that the right to a "public hearing" should extend
to the summing up and legal instruction of the jury in order to allow
a control of its fairness.
As the European Court of Human Rights observed in the cases
of Pretto (judgment of 8 December 1983, Series A no. 71, p. 11
paras. 21 - 22), Axen (judgment of 8 December 1983, Series A no. 72,
p. 12 paras. 25 - 26), and Sutter (judgment of 22 February 1984,
Series A no. 74, pp. 12 - 13 paras. 27 - 28),
"the public character of proceedings before the judicial
bodies referred to in Article 6 para. 1 (Art. 6-1) protects
litigants against the administration of justice in secret with
no public scrutiny; it is also one of the means whereby
confidence in the courts, superior and inferior, can be
maintained. By rendering the administration of justice
visible, publicity contributes to the achievement of the
aim of Article 6 para. 1 (Art. 6-1), namely a fair trial,
the guarantee of which is one of the fundamental principles
of any democratic society, within the meaning of the
Convention. ... Whilst the member States of the Council
of Europe all subscribe to this principle of publicity,
their legislative systems and judicial practice reveal
some diversity as to its scope and manner of implementation
as regards both the holding of hearings and the
'pronouncement' of judgments. The formal aspect of
the matter is, however, of secondary importance as compared
with the purpose underlying the publicity required by
Article 6 para. 1 (Art. 6-1). The prominent place held in a
democratic society by the right to fair trial impels
the Court, for the purposes of the review which it has to
undertake in this area, to examine the realities of the
procedure in question".
In the above-mentioned cases and also in the Ekbatani case
(judgment of 26 May 1988, Series A no. 134, p. 13 para. 28) the Court
further stressed that account must be taken of the entirety of the
proceedings conducted in the domestic legal order, and that exceptions
from the principle of publicity can be justified, in particular where
the courts do not have the task of establishing the facts of the case,
but only of interpreting the legal rules involved (Ekbatani judgment,
loc. cit., p. 14 para. 31).
There was a public hearing of the applicant's case before the
Korneuburg Court of Assizes which covered all aspects, including the
taking of the evidence and arguments by the parties on the legal
qualification of the facts. The questions to the jury were determined
in a public procedure and the bench's legal instruction to the jury
was likewise made public in its written form. Only the oral
instruction of the jury by the presiding judge on the basis of the
written memorandum elaborated by the bench took place in the absence
of the parties and was not public. This oral instruction covered both
the facts and the legal questions of the case. The reason given for
the exclusion of the parties and the public in general is that this
part of the proceedings is seen as belonging to the internal
deliberations of the court.
The Commission recalls that in its above judgments the
European Court of Human Rights has accepted a certain margin of
appreciation of the Contracting States as regards the scope and
implementation of publicity enshrined in Article 6 para. 1 (Art. 6-1).
It notes that apart from Austria several other European States also
have legal systems where the instruction of the jury is not public.
In these circumstances the Commission finds that the respondent
State's margin of appreciation is not overstepped if it adopts such
a system. It is not unreasonable to exclude publicity at this stage
on the ground that the discussion of the case with the jury prior to
its vote on the verdict is part of the internal deliberations of the
court.
g) Having found each of the more specific procedural complaints
of the applicant unfounded, the Commission also finds that the
combination of the various issues raised by him did not make the trial
as a whole unfair. It considers that the Assize Court proceedings in
question provided the applicant with all the guarantees of a "fair and
public hearing before an independent and impartial tribunal
established by law".
The applicant's above-mentioned complaints concerning the
proceedings before the Korneuburg Court of Assizes are therefore
manifestly ill-founded and must be rejected under Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant has raised a number of further complaints
concerning the proceedings before the Supreme Court.
He complains under Article 6 paras. 1 and 3 (c) in conjunction
with Article 14 (Art. 6-3-c+14) of the Convention that, unlike an
accused at liberty, he was not allowed to be personally present at
the Supreme Court's hearing in which not only questions of law, but
also questions of fact and an assessment of his personality were at
issue. In particular he considers it as unfair that, without his
personal presence, the Supreme Court raised his sentence from twenty
years' imprisonment in an institution for mentally abnormal criminals
to life imprisonment in an ordinary prison, relying on a motive of
financial offences which had not been established by the court of
first instance.
He submits that the rejection of his request to be brought to
the hearing before the Supreme Court was not justified and was
disproportionate, in particular if compared to the many other
instances where he was allowed to be brought before courts or
administrative authorities. Moreover, the relevant decision was not
served upon him before the hearing, thus leaving him insufficient
time of preparation (Article 6 para. 3 (b)(Art. 6-3-b). The fact that
his above request to be brought before the Supreme Court was limited
to the hearing of the pleas of nullity cannot, in the applicant's
view, be interpreted as implying a waiver of his right to request his
presence at the hearing of the appeals from sentence, the Supreme
Court's hearing being a combined one and his presence in any event
being required in the interest of justice. By not being allowed to be
present, he was also deprived of his right to the "last word" which he
would otherwise have had.
The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Supreme Court's nullity proceedings in which
additional information obtained in the procedure under Section 285f of
the Code of Criminal Procedure was used without giving the applicant
an opportunity to comment thereon.
He also complains under Article 6 para. 1 (Art. 6-1) of the
way in which the Supreme Court's judgment was prepared. The
Attorney General's office was not only told to which Chamber of the
Supreme Court the case had been assigned and who was the judge
rapporteur, but was also provided with the Supreme Court's file
including a draft judgment prepared by the judge rapporteur prior to
the hearing. The Attorney General's office was thereby given a
privileged position incompatible with the principle of equality of
arms. Furthermore, the preparation of a draft judgment prior to the
Supreme Court's hearing was in itself unfair, in particular as the
draft judgment was adopted unchanged as the Supreme Court's decision
after the hearing, which thus became an empty formality where the
additional arguments of the defence had no chance of being taken into
account.
Finally, the applicant alleges a violation of Article 5 in
conjunction with Article 14 (Art. 14+5) of the Convention as regards
the sanction imposed by the Supreme Court, and a violation of
Article 13 (Art. 13) of the Convention as regards the scope of the
remedies available before the Supreme Court to redress violations of
Article 6 (Art. 6).
The Government submit that, with regard to his presence at the
Supreme Court hearing, the applicant has not exhausted the domestic
remedies insofar as this concerns the hearing of the appeals from
sentence. The applicant's request to be brought to the Supreme Court
was made for the hearing of the pleas of nullity and thus implied a
waiver of his right to be present at the hearing of the appeals. In
any event the applicant's personal presence at the hearing of the
pleas of nullity and the appeals was not required under the Convention
as the Supreme Court was exclusively called upon to deal with
questions of law. The Government contest that the decision concerning
the applicant's presence was served belatedly and that in assessing
the relative weight of aggravating and mitigating circumstances, the
Supreme Court went beyond the findings of the court of first instance.
As to the use of additional information the Government observe
that this information (i.e. certain parts of the victim's diary) was
relied upon by the Supreme Court only in an obiter dictum to confirm a
finding based on the file, and that in any event this information was
made available to the defence through the court of first instance
prior to the Supreme Court's hearing.
Finally, as regards the Supreme Court's judgment, the
Government do not contest that a draft was prepared by the judge
rapporteur prior to the hearing. They deny, however, that this draft
was made available to the Attorney General's office. The latter's
position paper was brought to the knowledge of the defence prior to
the Supreme Court's hearing, and therefore the principle of
equality was preserved - in particular if one considers the special
role of the Attorney General who is not the adversary of the defence
in the Supreme Court proceedings but has more the function of a
neutral assistant of the Court. Moreover, at the hearing before the
Supreme Court the defence could reply to the Attorney General's
arguments and comment on any other aspect of the case. The hearing
was not a mere formality because the applicant's defence arguments
would in fact have been taken into account in the decision if they had
convinced the Court.
The Commission considers that the applicant's complaints
concerning the Supreme Court proceedings are closely interrelated and
therefore cannot be separated. It further considers that they raise
complex and difficult questions of law and fact, in particular as
regards the refusal of the applicant's personal presence at the
hearing in which his sentence was considerably aggravated, and as
regards the procedure for the preparation of the judgment prior to the
hearing of the pleas of nullity and appeals. 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
1. DECLARES the applicant's complaints relating to the
Supreme Court's proceedings ADMISSIBLE, without prejudging
the merits of the case;
2. DECLARES the remainder of the application INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)