THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39917/98 by Roland BAUMANN against Austria

The European Court of Human Rights, sitting on 4 September 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 21 February 1996 and registered on 17 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Roland Baumann, is a Austrian national , born in 1969 and living in Graz (Austria).

The facts of the case, as submitted by the parties, may be summarised as follows.

On 1 July 1996 the Leoben Regional Court convicted the applicant of murder and aggravated coercion and sentenced him to 18 years’ imprisonment. In assessing the penalty ( Strafbemessung ) the court considered as mitigating circumstances the applicant’s “neglected education” ( vernachlässigte Erziehung ) and his partial confession. As aggravating circumstances, the court took account of his criminal record and the fact that he was a recidivist.

On 19 August 1996 the applicant, represented by counsel, filed a plea of nullity ( Nichtigkeitsbeschwerde ) and an appeal ( Berufung ). In his appeal he complained that the penalty was too high. As to the mitigating circumstances, he maintained that his neglected education was not given sufficient weight. Moreover, the Regional Court should have taken into account his intoxication and his particular mental state at the time of the criminal act due to the fact that he had suspected the victim of having tried to prostitute his wife. The applicant did not make a request to attend the hearing before the Supreme Court.

On 30 September 1996 the Supreme Court fixed the hearing date for the applicant’s plea of nullity and his appeal for 5 November 1996. The applicant received a notification, which stated that his counsel would be summoned to the hearing. As to the hearing of the plea of nullity, the notification informed him that he, being detained, could only appear through his counsel. As to the hearing of the appeal, he was informed that he would not be brought to court as the conditions set out in the relevant provisions of the Code of Criminal Procedure ( Strafprozeßordung ) were not fulfilled.

On 5 November 1996 the Supreme Court, after having held a hearing in the absence of the applicant but in the presence of his defence counsel, Ms. S., dismissed his plea of nullity as well as his appeal. As regards the appeal, the court found that the concurrent nature of the offences ( Zusammentreffen strafbarer Handlungen verschiedener Art ) had to be taken into account as an additional aggravating circumstance. The Supreme Court ruled that a neglected education could not be considered as a mitigating circumstance in the applicant’s case, given that he was an adult and had already been imprisoned several times before. Nor could the applicant’s intoxication be considered a mitigating circumstance because, in view of his previous offences, he should have appreciated the effects alcohol had on him. As to his mental state at the time of commission of the offence, the court relied on an expert’s psychiatric opinion to the effect that the applicant’s personality was characterised by an aggressive attitude as well as coldness and hostility towards other people. Under these circumstances the applicant’s special mental state could not be considered to be a mitigating factor. Furthermore, the Supreme Court noted that the applicant had not put forward any new mitigating circumstances.

COMPLAINT

The applicant complains under Article 6 § 3 (c) of the Convention that he was not able to attend the oral hearing before the Supreme Court.

THE LAW

The applicant complains that he was not able to attend the oral hearing before the Supreme Court. He invokes Article 6 § 3 (c) of the Convention which reads as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

The Government submit that the applicant has failed to comply with the six months rule under Article 35 § 1 of the Convention. They maintain that although the applicant had started to correspond with the European Commission of Human Rights as early as 21 February 1996 he only raised the complaint at issue for the first time in a letter of 20 September 1997 whereas the Supreme Court had given it judgment on 5 November 1996 which is more than six months before that date.

The applicant makes no submissions on this point.

The Court recalls that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

In this respect the Court observes that Rule 47 § 5 of the Rules of Court provides that the date of introduction of an application shall as a general rule be taken to be the date on which an applicant sets out, even summarily, the object of an application. The Court may, however, for good cause, take a different date as the date of introduction.

In the present case the applicant, on 21 February 1996, sent a letter to the European Commission of Human Rights in which he asked the Commission to send an observer to his trial as he feared that the trial would be unfair. On 18 April 1996 he was informed that the Commission was not in a position to send an observer. Subsequently, on 20 September 1997, the applicant addressed a further letter to the Commission in which he complained that the hearing on his plea of nullity and appeal had been held before the Supreme Court in his absence.

Since the applicant has set out for the first time the above complaint only on 20 September 1997, which is more than six months after the Supreme Court gave its judgment, he has failed to introduce this complaint within the time-limit provided for in Article 35 § 1 of the Convention. It follows that the application must be rejected, in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President