THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35115/97 by Oliver RIEPAN against Austria

The European Court of Human Rights (Third Section) , sitting on 15 June 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, Mr K. Traja, judges ,

and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 23 December 1996 and registered on 27 February 1997,

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 is an Austrian national, born in 1966. He is detained at Garsten prison (Austria). H e is represented before the Court by Mr Helmut Blum, a lawyer practising in Linz (Austria).

A. The circumstances of the case

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

The applicant is serving an eighteen year prison term following his conviction for murder and  burglary in 1987. He was first detained at Karlau prison from which he escaped in 1991 but was re-arrested within a day. In September 1994 he was transferred to Stein prison and on 8 May 1995 to Garsten prison, as there was a danger that he would try to escape.

On 8 May 1995, when prison personnel at Garsten carried out the necessary reception formalities,  the applicant refused to co-operate and demanded to be returned to Stein prison otherwise he and other inmates would set fire to Garsten prison. On the following day, in the course of an interview with the prison governor, he again insisted on being returned to Stein prison and threatened the prison governor that otherwise “someone would pay him a private visit”. A few days later he threatened a prison warder saying “that he should not turn his back on him”. On account of these incidents, criminal proceedings on charges of dangerous menace ( gefährliche Drohung ) were lodged against the applicant.

On 29 January 1996 the Steyr Regional Court ( Landesgericht ), sitting with a single judge, held a hearing in the “closed area” ( Gesperre ) of Garsten prison. The applicant, assisted by counsel, pleaded not guilty. The court heard a number of prison officers as witnesses. According to the minutes, the hearing was public. Neither the applicant nor his counsel complained about the lack of publicity then. Following the hearing, the Regional Court convicted the applicant of dangerous menace, finding that he had on three occasions threatened prison personnel with arson or assault, and sentenced him to ten months’ imprisonment.

Thereupon, the applicant filed an appeal on points of law and fact, as well as against sentence ( Berufung wegen Nichtigkeit , Schuld und Strafe ). He complained in particular, as a ground of nullity, that the hearing on 29 January 1996 had not been public since it took place in the “closed area” of Garsten prison, to which only people with special permits have access, other than prison personnel. He also claimed that the room in which the hearing was held was too small to accommodate any spectators. Further, he challenged the Regional Court’s assessment of evidence and its establishment of the facts. Finally, he complained that the sentence was too severe.

On 5 July 1996 the Linz Court of Appeal ( Oberlandesgericht ) held a public hearing in the presence of the applicant and his counsel.

The Court of Appeal dismissed the case. As to his complaint that the hearing of 29 January 1996 had not been public, the court noted that, according to information submitted by the Steyr Regional Court, the hearing was public in the sense that any interested person would have been allowed to attend. Had the prison governor been concerned that interested persons should not be granted access to the “closed area”, he would have been obliged to prohibit the conduct of the trial in that part of the prison. In any case, no such persons wishing to attend the trial had been present at the beginning of the hearing, and the judge had not been informed of any potential spectators.

As to the applicant’s appeal on points of fact, the Court of Appeal stated that it had no doubts regarding the Regional Court’s evaluation of the evidence and its establishment of the facts. The appellate court also confirmed the Regional Court’s legal view that the applicant had, by threatening prison personnel with arson or assault, committed the offence of dangerous menace. Finally, it found that the sentence was commensurate to the applicant’s guilt. At the end of the hearing the Court of Appeal delivered its judgment orally.

B. Relevant domestic law and practice

Federal Constitution

Article 90 § 1 of the Federal Constitution ( Bundes-Verfassungsgesetz ) provides:

“Hearings by trial courts in ... criminal cases shall be oral and public. Exceptions may be prescribed by law.”

Code of Criminal Procedure

Publicity of hearings

Section 228 § 1 of the Code of Criminal Procedure ( Strafprozessordnung ) provides that the trial is public. Failure to comply with this requirement constitutes a ground of nullity.

According to section 229 § 1, the public may be excluded from the trial in the interests of morals or public order. The court has to take a formal decision on the exclusion of the public. No remedy lies against such a decision.

Section 231 provides that, even where the public was excluded from the whole or part of the trial, the pronouncement of the judgment has to be public.

Pursuant to section 488, the above provisions apply to proceedings before a single judge.

According to section 489 § 1 taken together with section 472 § 1, an appeal hearing against a judgment of a single judge has to be public. Sections 228 to 231 apply.

Appeal against a conviction by a single judge

According to section 489 § 1 taken together with section 464, an appeal on points of law and fact and against sentence lies against the judgment of a single judge. By virtue of section 467 § 1, the appellant may adduce new facts and evidence.

In accordance with section 473 § 2, the appellate court will re-hear witnesses and experts if it has doubts as to the correctness of the first instance court’s establishment of the facts, or if it holds that the hearing of new witnesses or experts as regards the same facts is necessary. Otherwise it will take its decision on the basis of the file.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that he did not have a public hearing in the criminal proceedings against him relating to charges of dangerous menace. He submits that the Steyr Regional Court held the trial in the prison where he is detained.

THE LAW

The applicant complains that he did not have a public hearing in the criminal proceedings against him. He relies on Article 6 § 1 of the Convention which, so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal established by law. Judgment shall be pronounced publicly but the press and the public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, ... .”

1. The Government contend that the applicant failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, because, although represented by counsel, he did not complain about the alleged lack of publicity at the hearing on 29 January 1996, but only in his appeal against the judgment. In the Government’s view he should immediately have requested the Steyr Regional Court to conduct the hearing outside the prison.

The applicant contests this view. He points out that the courts are, under the Code of Criminal Procedure, obliged to hold hearings publicly of their own motion. He could therefore not be expected to request a public hearing before the Steyr Regional Court. In any case, he argues that such a request would not have produced any other result than his appeal.

The Court recalls that the purpose of the rule on exhaustion of domestic remedies is to enable the State to have the opportunity to redress the alleged damage by domestic means within the framework of its own legal system before proceedings are brought in an international court (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210-11, § 65). The Court is satisfied that the applicant has given the Austrian courts such an opportunity by raising this issue in his appeal. As regards the Government’s argument that he should immediately have complained at the hearing on 29 January 1996, the Court notes firstly that in the Steyr Regional Court’s view the hearing was public. It further notes that no remedy (except the appeal against the subsequent judgment) lies against the trial court’s decision in this matter. The Court therefore fails to see how an immediate complaint about the alleged lack of publicity could have remedied the situation of which complaint is made.

In sum, the applicant has complied with the requirement of exhaustion of domestic remedies and the Government’s preliminary objection is to be rejected.

2. As to the merits of the application, the Government submit that the trial hearing of 29 January 1996 fulfilled the requirement of publicity. Firstly, the Steyr Regional Court had not ordered the exclusion of the public under section 229 § 1 of the Code of Criminal Procedure. It also stated in its minutes that the hearing was public. Moreover, the mere fact that the hearing was conducted on Garsten prison premises does not suffice to show that it was not public. The reason for conducting the hearing at the prison was not to prevent the public from attending but to prevent an escape attempt by the applicant. Further, the Government refer to the reasons adduced by the Linz Court of Appeal, in particular that the prison governor would not have allowed the hearing to be held at Garsten prison if he had had concerns about the presence of any potential spectators and that any such people would in fact have been allowed to attend. Finally, the Government contest that the room was too small to accommodate spectators. However, as no interested persons appeared, the question of choosing a larger room did not arise.

In the alternative, the Government argue that the lack of publicity was in the interests of public order and therefore justified under the second sentence of Article 6 § 1 of the Convention. Having regard to the fact that the applicant still had to serve a large part of his sentence, his previous escape attempt and his conduct, which led to the institution of the criminal proceedings at issue, there was legitimate concern that he might try to abscond.

The applicant maintains that the hearing on 29 January 1996 was not public. He emphasises that it was held in a part of the prison, the so called “closed area”, to which the public has no access. In any case, the attendance of any spectators was merely theoretical since the public had not been informed that the hearing would be held at the prison. Moreover, the room in which the hearing was held was too small to accommodate the public. In sum, the publicity of the hearing was de facto excluded.

As to the Government’s alternative submissions, the applicant contends that there was in any event a violation of Article 6 § 1 of the Convention as the Steyr Regional Court’s judgment was not pronounced publicly. Further, he submits that the trial judge did not formally exclude the publicity of the hearing, which shows that he did not consider that there were reasons justifying such a decision. In any event, the applicant denies that there was any danger of his absconding.

The Court considers, in the light of the parties’ submissions, that the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President