Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16266/90

by H.A.

against Austria

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

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

22 December 1989 by H.A. against Austria and registered

on 8 March 1990 under file No. 16266/90;

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, an Austrian citizen born in 1957, is at

present detained in the prison of Graz-Karlau. He is represented

by Rechtsanwalt Dr. Karl Bernhauser of Vienna.

In 1978, when serving as a soldier in an Austrian

peace-keeping contingent of the United Nations in Syria, the applicant

attacked his four fellow soldiers and killed two of them. He was

convicted of murder by an Assize Court of the Regional Criminal Court

(Landesgericht für Strafsachen) of Vienna on 22 September 1982. In

view of conflicting opinions of the psychiatric experts a faculty

opinion (Fakultätsgutachten) was obtained from the medical faculty of

the university of Vienna on the applicant's criminal responsibility.

The opinion was favourable to the applicant, but the Court found him

fully responsible and imposed a life sentence. This judgment was

confirmed by the Supreme Court (Oberster Gerichtshof) on

26 August 1983.

Concerning these criminal proceedings the applicant lodged an

application (No. 10532/83) which the Commission declared admissible on

15 December 1987, finding that it raised issues under Article 6 of the

Convention.

On 17 March 1989 the Commission decided to strike the

application off the list following its withdrawal by the applicant and

adopted a Report under Rule 54 of its Rules of Procedure. The

parties had agreed on an amicable solution of the case of which the

Government had informed the Commission in the following terms (letter

of 21 February 1989):

"........ I have the honour to inform you that in the

above-mentioned case a friendly settlement was reached

with the applicant. On the part of the Austrian

Government, the friendly settlement foresees

- the reduction, as a measure of grace, of the

applicant's prison sentence of life to 15

years of imprisonment;

- the payment of a lump sum of AS 50,000.- for the

costs of proceedings of the complaint procedure.

In view of this friendly settlement, the Austrian

Governments requests to strike the above application

off the Commission's list of pending cases."

The applicant had replied as follows (letter of 2 March 1989):

"The applicant declares that, having regard to the conditions

mentioned in the letter of the Austrian Government of

21 February 1989, he agrees to the withdrawal of the

application in accordance with Rule 54 of the Rules of

Procedure.

The withdrawal of the application is, however,

subject to the reservation that the application will be

reactivated if the Austrian Federal President should not

give his necessary consent to the friendly settlement by

granting an act of grace."

On 28 March 1989, i.e. after the adoption of the Commission's

Report, the Federal President (Bundespräsident) granted an act of

grace by which the applicant's prison sentence for life was reduced to

15 years of imprisonment.

The applicant submits that it was understood that he would be

released immediately. He had served ten years, i.e. two thirds of the

commuted 15 years' sentence, on 29 October 1988 and an expert opinion,

obtained in the proceedings by which the above act of grace was

prepared, had confirmed that the conditions for a conditional release

under Section 46 para. 2 of the Penal Code (Strafgesetzbuch) were met.

However, the applicant's subsequent request for conditional

release was rejected by the Regional Criminal Court of Graz on

25 July 1989. The Court left open whether the personal conditions

under Section 46 para. 2 of the Penal Code (Spezialprävention) were

fulfilled. It observed that it was also necessary under Section 46

para. 3 of the Penal Code to consider whether there were special

reasons of general crime prevention (Generalprävention) which spoke

against the applicant's release. The Court found that the applicant's

conditional release would raise problems of special prevention and be

inadmissible as being incompatible with general prevention.

Both the prosecution and the applicant appealed against this

decision. The prosecution requested that a decision on conditional

release be taken only after having obtained a further expert opinion

on the question whether it was still to be feared that the applicant

would commit further crimes. The applicant referred to his impeccable

conduct during his detention and the fact that the prison governor had

expressly recommended his conditional release. He further referred to

the opinion obtained in connection with the act of grace and submitted

that, if there were still doubts, the court should obtain a further

expert opinion. He finally claimed that it was unlawful to refuse

conditional release exclusively on grounds of general prevention of

crimes.

On 7 September 1989 the Graz Court of Appeal (Oberlandes-

gericht) rejected both appeals. It observed that under Section 46

para. 3 of the Penal Code the personal conditions and the

considerations of general crime prevention were generally of equal

weight. The Regional Court had rightly found that in the applicant's

case the latter prevailed. It had however failed to give sufficient

reasons for its decision. The Court of Appeal stated that murder was

one of the most serious crimes. The applicant had killed two persons

and attempted to kill two others in a treacherous way. His guilt was

therefore extraordinary. His trial had aroused great public interest

which continued to exist. A probation officer had reported that the

population was shocked about the applicant's mild sentence and the

prospect of his release after having served only two-thirds of it.

His brother allegedly had also objected to his returning home. In

criminology the preventive purpose of penalties was no longer seen to

be deterrence from committing crimes, but reinforcement of trust in

the effective operation of the legal system. This depended on the

attitudes of the population concerning the type of crime and the

personality of the offender. The crime of the applicant had aroused

great public interest which also concerned his further fate. Further

execution of the sentence was therefore necessary, in particular since

it had already been mitigated by an act of grace. The applicant's

release after only 10 years and 10 months of detention would undermine

the public's trust in the effectiveness of criminal law. Since a

conditional release was thus excluded for considerations of general

crime prevention, it was not necessary to obtain further evidence on

the question whether the applicant might commit further crimes.

COMPLAINTS

The applicant claims a violation of the principles of a fair

trial, as guaranteed by Article 6 para. 1 of the Convention. By

referring to the nature of his crime and his guilt the courts

allegedly disregarded the results of the faculty opinion obtained in

the criminal proceedings and the applicant's successful complaint to

the Commission. Furthermore they unfairly failed to take into account

the expert opinion preceding the act of grace or to obtain further

expert advice.

The applicant also claims a violation of Article 3 of the

Convention. In his view it was inhuman and degrading to base the

continued enforcement of his sentence exclusively on the attitudes of

the general public. By so doing the courts allegedly disregarded the

principle underlying the Convention system that penalties must be

related to personal guilt and responsibility. The courts'

considerations on general crime prevention are not confirmed by

empirical results of social research. The applicant requests the

Commission to obtain expert advice on this question.

THE LAW

1. The Commission first notes that the present application is

related to application No. 10532/83 which, after having been declared

admissible on 15 December 1987, was struck off the list on 17 March

1989, following an agreement reached between the parties.

Article 30 para. 3 (Art. 30-3) of the Convention provides that the

Commission may decide to restore an application to its list of cases

if it considers that the circumstances justify such a course. The

Commission has examined whether Application No. 10532/83 should be so

restored.

The applicant claims that it was understood that, following

the act of grace reducing his life sentence to 15 years of

imprisonment, he would be granted a conditional release having

completed two thirds of the commuted sentence as the conditions of

Section 46 para. 2 of the Penal Code were met.

The Commission notes, however, that no reference was made to

conditional release of the applicant in the communications received

from the parties prior to its decision of 17 March 1989.

The Commission therefore cannot find that the agreement

between the parties underlying the withdrawal of Application

No. 10532/83 is invalid or has not been fulfilled, and that

Application No. 10532/83 should be restored to the list.

2. The applicant complains that Article 6 para. 1 (Art. 6-1) of the

Convention has been violated in the proceedings concerning the grant

of conditional release.

The Commission recalls its constant case-law according to

which proceedings concerning the execution of a sentence imposed by a

competent court, including proceedings on the grant of conditional

release, are not covered by Article 6 para. 1 (Art. 6-1) of the

Convention. They neither concern the determination of " a criminal

charge" nor of "civil rights and obligations" within the meaning of

this provision (cf. e.g. No. 1446/62, Plischke v. Austria, Dec.

7.3.64, Yearbook 8 pp. 455, 463; No. 1760/63, X. v. Austria, Dec.

23.5.66, Yearbook 9 pp 167,175; No. 2306/64, X. v. Austria, Dec.

19.7.66, Collection 21 pp. 23, 31; No. 4133/69, X. v. U.K., Dec.

13.7.70, Yearbook 13 pp. 780, 790). The Commission further recalls

that a right to be released on probation is not as such included among

the rights and freedoms guaranteed by the Convention and that Article

5 para. 4 (Art. 5-4) does not apply in this respect (cf. No. 9089/80,

Dec. 9.12.80, D.R. 24 pp. 227, 229).

It follows that the applicant's above complaint is

incompatible with the provisions of the Convention, ratione materiae.

It must accordingly be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant further alleges a violation of Article 3

(Art. 3) of the Convention because his conditional release was refused

exclusively on grounds of general prevention of crimes.

The Commission notes that the applicant's life sentence was

reduced by an act of grace to 15 years' imprisonment and that the

applicant withdrew Application No. 10532/83 on this basis. He cannot

now claim that the commuted 15 years' sentence was in itself an

inhuman or degrading punishment.

The applicant claims that, under Section 46 of the Penal Code,

it was not admissible to refuse conditional release exclusively on

grounds of general prevention of crime. However, the interpretation

of the domestic law is primarily a matter for the domestic courts.

The Commission notes that the Austrian courts in the present case held

that the considerations of special and general prevention of crime

must be given proper weight, and that in the present case the

considerations of general prevention prevailed because of the very

serious nature of the applicant's crime and the great public interest

which it had roused. Contrary to the applicant's submissions the

courts did not confirm that there were no reasons of special prevention

justifying the applicant's further detention. The Regional Court

expressed doubts in this respect. The Court of Appeal implicitly

confirmed this statement. It considered a further investigation

unnecessary because of the overriding importance of the considerations

of general prevention.

In these circumstances the Commission considers that the

applicant's above complaint under Article 3 (Art. 3) has no sufficient

basis in the facts. The application must therefore be rejected as

being 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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