Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12960/87

by Franz HÖLLMÜLLER

against Austria

The European Commission of Human Rights sitting in private

on 3 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 20 March 1987

by Franz Höllmüller against Austria and registered on 3 June 1987

under file No. 12960/87;

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 facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1949, is an Austrian national and

resident in Korneuburg. When lodging his application he was detained

at the Korneuburg Prison.

In 1986 criminal proceedings were instituted against the

applicant on charges of murder, fraudulent conversion and unlawful

possession of a fire-arm. He was detained on remand from 16 January

until 7 October 1986.

On 6 and 7 October 1986 the Assize Court at the Korneuburg

District Court (Geschwornengericht beim Kreisgericht) held the trial

against the applicant who was represented by a chosen defence counsel.

On 7 October 1986 the Court convicted the applicant of

second-degree murder (Totschlag), fraudulent conversion and unlawful

possession of a fire-arm and sentenced him to seven years'

imprisonment. The jury found that the applicant had fraudulently

deprived a 60 year old woman of AS 20,000 and killed her in the course

of a dispute about this offence four months later. As regards the

sentence the Court considered as a mitigating circumstance in

particular that the applicant had confessed the offences. As

aggravating circumstances it took into account that the applicant had

committed several criminal offences and that he had profited by the

victim's weakness and helplessness. The period of his detention on

remand was to be counted towards his sentence.

On 1 December 1986 the applicant, represented by his defence

counsel, lodged a plea of nullity (Nichtigkeitsbeschwerde) against the

conviction and an appeal (Berufung) against the sentence. He alleged

in particular inconsistencies of the jury's vote and the minutes of

the vote. Furthermore he submitted that the Assize Court had failed

to decide upon an extraordinary mitigation of the sentence in his

case.

On 2 December 1986 the Korneuburg Public Prosecutor's Office

(Staatsanwaltschaft) also lodged a plea of nullity and an appeal. It

submitted in particular that the Assize Court incorrectly assessed the

aggravating circumstances and argued that the applicant had committed

a particularly callous and premeditated murder.

On 26 January 1987 the Austrian Supreme Court (Oberster

Gerichtshof) fixed the public hearing of the appeal and plea of

nullity for 19 February 1987. The applicant's defence counsel was

summoned. The applicant, who was in custody, was informed about the

date of the hearing and told that he could only be represented by

defence counsel at the hearing. The Court did not order that the

applicant be brought before it at the hearing. The Court, in this

respect, referred in particular to S. 286 para. 2 and S. 296 para. 3

of the Austrian Code of Criminal Procedure (Strafprozessordnung).

S. 286 para. 2 provides with regard to proceedings concerning

pleas of nullity that the defendant in custody shall be informed of

the day of the hearing. It shall be pointed out to him that he may

only be represented by defence counsel.

According to S. 296 para. 3 of the Code of Criminal Procedure,

as amended after the friendly settlement in the Peschke case

(No.8289/78, Comm. Report 13.10.81, D.R. 25 p. 182), S. 286 and 287

are applicable mutatis mutandis to appeal proceedings as regards the

fixing of a day for the public hearing and the procedure, provided

that the defendant not in custody shall always be summoned and that

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

production appears to be necessary in the interests of proper

administration of justice for other reasons ("... auch die Vorführung

des verhafteten Angeklagten zu veranlassen ist, wenn er dies in seiner

Berufung oder Gegenausführung beantragt hat oder die Vorführung sonst

im Interesse der Rechtspflege geboten ist.")

It does not appear that a request under S. 296 para. 3 of the

Code of Criminal Procedure, to be brought before the Supreme Court at

the appeal hearing, had been filed by the applicant or his defence

counsel in the present case.

On 19 February 1987 the Supreme Court dismissed both pleas of

nullity. Upon the Public Prosecutor's appeal, it increased the

sentence to nine years' imprisonment. The applicant's appeal was

dismissed accordingly. As regards the applicant's plea of nullity the

Court found that only defects in the vote as such could have entailed

the nullity of the judgment in question. Furthermore the Court,

having regard to the appeals, considered that the applicant's criminal

offences were interrelated in the sense that the earlier unscrupulous

fraudulent conversion resulted in the later dispute and murder. The

Court concluded that the outstanding degree of unlawfulness

(überdurchschnittlicher Unrechtsgehalt) of the offences committed by

the applicant required the increase of his sentence.

COMPLAINTS

The applicant complains under Article 6 para. 3 (d) of the

Convention that he was wrongly convicted and sentenced. Furthermore

he submits that the Court proceedings were unfair in particular on the

ground that his confession had been extorted and that the Assize Court

did not examine witnesses on his behalf. Moreover he complains that

he could not in person attend the hearing before the Supreme Court.

THE LAW

The applicant complains that he was wrongly convicted and

sentenced by the Korneuburg District Court on 7 October 1986 and also

of the court proceedings concerned.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

case-law (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).

It is true that the applicant also complains under Article 6

para. 3 (d) (Art. 6-3-d) of the Convention that the court proceedings

were unfair. He considers, in particular, that the Assize Court failed

to examine witnesses on his behalf. Furthermore he complains that he

was not allowed to attend the hearing before the Supreme Court.

The Commission has examined these complaints under Article 6

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

However, as regards the proceedings before the Assize Court,

the Commission, even assuming that the domestic remedies, in this

respect, were properly exhausted, finds that the applicant, who was

represented by a defence counsel of his own choosing, did not show

that he could not properly present his arguments at the trial or, in

particular, that he had requested the Assize Court to hear certain

witnesses on his behalf.

With regard to his complaint concerning the appeal proceedings

the Commission recalls that Article 6 (3) (c) (Art. 6-3-c) and Article

6 (1) (Art. 6-1) 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. Nos. 1169/61, Yearbook 6 p. 520; 2635/65,

Coll. 28 p. 43, 49; 7138/75, D.R. 9 p. 50 and 8289/79, D.R. 18 p. 160;

No. 9315/81, Dec. 15.7.83, D.R. 34 p. 96).

In the present case, the Commission notes that the Supreme

Court informed the applicant about the date fixed for the hearing,

and, referring to the relevant provisions of the Code of Criminal

Procedure, stated that he could only be represented by counsel. The

Supreme Court did not order that the applicant be brought before it at

the hearing, because the conditions under S. 296 para. 3 of the Code

of Criminal Procedure were not met. Furthermore, the Commission notes

that under S. 296 para. 3 the defendant in custody shall be brought

before the court at a hearing, if he so requests.

The Commission finds that the applicant has not shown that he

or his defence counsel filed such a request under S. 296 para. 3 of

the Code of Criminal Procedure. There is nothing in the applicant's

submissions to indicate that he or the counsel of his own choosing

were prevented from filing such a request and thus could not take care

that he was brought before the Supreme Court at the hearing. The

Commission considers in particular that the Supreme Court informed the

applicant about the date of hearing and his representation by counsel

in accordance with the relevant provisions of the Austrian Code of

Criminal Procedure.

It follows that the applicant is himself responsible for the

fact that he was not present at the hearing before the Supreme Court.

Furthermore, the Commission notes that the applicant's plea of

nullity and his appeal were presented in writing by his defence

counsel, who had already represented him in the proceedings at first

instance. His defence counsel was also present at the hearing before

the Supreme Court.

The Commission considers that, in these circumstances, there

is nothing in the applicant's submissions to suggest that the

proceedings before the Supreme Court were unfair, or otherwise

improperly conducted.

It follows that the application is manifestly ill-founded

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C. A. NØRGAARD)

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HÖLLMÜLLER v. AUSTRIA

HÖLLMÜLLER v. AUSTRIA

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