Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13996/88

by J.P.

against Austria

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. S. TRECHSEL, Acting President

C.A. NØRGAARD

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 24 June 1988 by

J.P. against Austria and registered on 1 July 1988 under

file No. 13996/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen. He lives in Neuzeug and

is represented in the proceedings before the Commission by Mr. G.

Stanonik, lawyer, of Salzburg. The facts, as submitted on behalf of

the applicant, may be summarised as follows:

The applicant was accused, with others, of receiving stolen

goods and of other offences. On 20 September 1984 the applicant's

representative, Mr. Stanonik, had made a request that all the judges

of the Steyr Regional Court (Landesgericht) stand down because they

were not impartial, and requested that the trial be referred to a

different court. The application was refused by the Court of Appeal

(Oberlandesgericht) of Linz on 21 September 1984. The trial began, as

planned, on 24 September 1984 before the Steyr Regional Court. The

applicant's representative repeated his application and, when it was

again refused, stated that he would stop defending the applicant, but

that his mandate continued ( "erklärte darauf, die Verteidigung

zurückzulegen, das Vollmachtsverhältnis bleibe aufrecht"). The

representative then left the room.

The Court asked the applicant whom he wished to choose as a

lawyer. He replied that he did not know anybody but that he had in

any event already paid Mr. Stanonik. The case was adjourned.

On 25 September 1984 the applicant was brought to the

President of the Court and told, in the presence of a member of Mr.

Stanonik's office, that a lawyer was required by law in trials with

assessors such as the applicant's (Schöffengericht) and that, as Mr.

Stanonik had left the room, it was not possible properly to continue

the trial. The applicant was therefore to name a further lawyer

within 8 days, and in default a "further defence lawyer" (weiterer

Verteidiger) would be appointed under Article 41 para. 3 of the Code

of Criminal Procedure (Strafprozessordnung). The applicant did not

name a further lawyer.

On 5 October 1984 the Regional Court appointed a further

lawyer, and the applicant's appeal against this decision was rejected

on 31 October 1984.

Mr. Stanonik repeated and extended his request that judges

should step down on 8 November 1984. The trial reconvened on 12

November 1984, when Mr. Stanonik stated that he was the applicant's

lawyer, and that the official lawyer should be discharged of his

duties. The Court considered that it was not clear that Mr. Stanonik

would remain until the end of the trial, and so the appointment of the

official lawyer stood. Mr. Stanonik made various applications for

members of the Court to stand down, which were all rejected.

At the end of the trial, on 5 December 1984, after the

applicant had been convicted of some of the charges and sentenced to,

inter alia, a three years' prison sentence, the official defence lawyer

successfully applied for his discharge as he was no longer needed. On

20 January 1985 he submitted his bill of costs, which he put at AS

230,479.25. The Court allowed costs of AS 172,915.50 on taxation on

22 February 1985. The applicant's appeal (Beschwerde) against this

decision was rejected by the Linz Court of Appeal on 27 March 1985.

The applicant's nullity appeal (Nichtigkeitsbeschwerde)

against the conviction of 5 December 1984 was rejected on 17 March

1986. The applicant's official lawyer took various steps to enforce

the award of costs, including the compulsory sale of certain real

property belonging to the applicant.

The applicant applied by way of an "official liability action"

(Amtshaftungsantrag) for reimbursement of the costs, alleging a

violation of his right to choose his own defence lawyer and of Article

1 of Protocol No. 1 to the Convention.

The Innsbruck Regional Court rejected this claim on 18 November

1986, finding that it was reasonable for the Steyr Regional Court to

conclude that Mr. Stanonik might absent himself from the court, and as

the refusal to discharge the official lawyer was neither illegal nor

wrong, the costs decision of 22 February 1985 also stood.

The Innsbruck Court of Appeal on 19 May 1987 considered the

applicant's appeal, noting that official liability actions lay only

where the matter could not be rectified by an appeal. It found that

the way in which the first instance (criminal) court had proceeded was

correct save that in the present case the applicant's validly

appointed lawyer had been present, both at the first trial hearing and

at the subsequent proceedings, and that he had requested that the

official lawyer be discharged. The criminal court's ruling that there

remained the possibility that the chosen lawyer would not appear and

the official lawyer should act in addition to the chosen one was not,

therefore, covered by the law. The Court of Appeal considered that

the proper course would have been for the criminal court to inform the

lawyer's Bar Association with a view to disciplinary sanctions (as in

fact happened), but that no other sanctions existed. As the official

lawyer should not have been appointed, at least from the moment when

Mr. Stanonik's request for the official lawyer's discharge had been

refused, it followed that the costs, which the applicant had been

required to pay, should be borne by the State.

The Court of Appeal found that the State should pay AS

145,671,35 with taxation costs of AS 11,074.80. It remitted the

question of execution costs to the court of first instance.

The Supreme Court (Oberster Gerichtshof) decided on the

State's appeal (Revision and Rekurs) on 11 November 1987 (judgment

received by the applicant's lawyer on 29 December 1987). The Supreme

Court re-instated the decision of the Regional Court, finding that the

function of an official liability action was not to determine whether

a decision was wrong, but rather whether it was based on an untenable

position. The Supreme Court noted that the assistance of a lawyer was

compulsory in trials with assessors, and that where a defendant did

not have a representative, the court was to appoint one. It did not,

however, follow that the presence of a chosen representative

necessarily excluded the appointment of an official lawyer. The

Supreme Court then examined at some length questions of the

appointment of official lawyers in addition to chosen lawyers, which

had been considered in the Federal Republic of Germany. It concluded

that, as the applicant's chosen lawyer had repeatedly applied for

judges to stand down and had on one occasion left the court, it was

reasonable to assume that he might repeat this behaviour, thereby

delaying the procedure. The Supreme Court did not consider that

Article 274 of the Code of Criminal Procedure, which provides for

disciplinary proceedings against a lawyer, excluded other measures,

such as the appointment of an official lawyer in addition to a chosen

lawyer.

COMPLAINTS

The applicant alleges a violation of Article 1 of Protocol No.

1 to the Convention in that, by the unnecessary and unlawful

appointment of a further lawyer, he was required to bear the costs of

the second lawyer. The applicant states that differences between

the criminal court and the lawyer should be settled at the lawyer's

expenses, the more so as, in the present case, the law provides for

the appointment of a lawyer only if the defendant does not have one,

and as Article 274 of the Code of Criminal Procedure (Strafprozess-

ordnung) expressly provides for a lawyer to bear the costs of an

adjournment made necessary because he fails to appear at a trial or

leaves before it ends. Article 274 also provides for adjournment if,

as did not happen in the present case, the Presiding Judge dismisses

the chosen lawyer and another cannot be found.

THE LAW

1. The applicant alleges a violation of Article 1 of Protocol No.

1 (P1-1) to the Convention in that he was required to pay the

fees of a second lawyer appointed against his will in criminal

proceedings against him.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the

matter ... within a period of six months from the date on which the

final decision was taken".

The Commission notes that the applicant appealed against the

decision to appoint the second lawyer. This appeal was rejected on

31 October 1984. Appeals against the taxation decision and the

conviction itself were rejected on 27 March 1985 and 17 March 1986

respectively. Finally, the applicant applied by way of an official

liability action (Amtshaftungsantrag) for reimbursement of the costs

wrongfully imposed on him. In this context, the Innsbruck Regional

Court (Landesgericht) rejected the claim, the Innsbruck Court of

Appeal (Oberlandesgericht) upheld it, and on 11 November 1987 the

Supreme Court (Oberster Gerichtshof) re-instated the Regional Court's

decision. The applicant's lawyer received the Supreme Court's

judgment on 29 December 1987.

The Commission finds that the obligation to pay costs in the

present case flows from the original decision of 5 October 1984,

against which the applicant appealed unsuccessfully. The applicant's

subsequent official liability action was a collateral attempt to

mitigate the effects of the original decision. The official

liability action was not an effective remedy under the generally

recognised rules of international law and consequently, the decisions

regarding this procedure cannot be taken into consideration in

determining the date of the final decision for the purpose of applying

the six months' time-limit laid down in Article 26 (Art. 26). The final

decision regarding the applicant's complaint is accordingly either the

decision of 31 October 1984 or, if the taxation appeal were an

effective remedy, the decision of 27 March 1985, whereas the present

application was submitted to the Commission on 24 June 1988, that is

more than six months after either of these dates.

It follows that this part of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. To the extent that the application can be seen as complaining

about an alleged deprivation of property because of the rejection of

the official liability action, the Commission, having regard to the

Supreme Court's judgment, finds that the applicant has not established

his claim under Austrian law. Accordingly, no "possessions" within

the meaning of Article 1 of Protocol No. 1 (P1-1) were involved and

this part of the application is therefore manifestly ill-founded

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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