THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33448/96 by Hans H. WEDENIG against Austria

The European Court of Human Rights ( Third Section ) sitting on 14 December 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr P. KÅ«ris,

Mrs F. Tulkens,

Mr W. Fuhrmann, Mr K. Jungwiert,

Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 August 1996 by Hans H. Wedenig against Austria and registered on 15 October 1996 under file no. 33448/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1959 and living in Haimburg . He is re p resented before the Court by Mr Michael Gnesda , a lawyer practising in Vienna.

A. Particular circumstances of the case

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

On 8 September 1995 the Innsbruck Regional Court ( Landesgericht ) convicted the applicant inter alia of attempted extortion ( versuchte Erpressung ). It found that he had, in May 1995, addressed two letters to the Tyrol Regional Governor threatening to contaminate water reservoirs in Tyrol unless an amount of 30 million Austrian schillings was paid. When determining the sentence, the court weighed a number of aggravating and mitigating circumstances. Given that the offence was punishable with six months’ to five years’ imprisonment, the court found that a prison sentence of two and a half years’ was commensurate to the applicant’s guilt in the circumstances of the case. Referring to the case-law of the Supreme Court ( Oberster Gerichtshof ), it noted that it also had to take into account to what extent punishment was necessary to deter the applicant from further wrongdoing or to deter others from committing similar offences.

On 12 December 1995 the Supreme Court dismissed the applicant’s plea of nullity ( Nichtigkeitsbeschwerde ). It noted the applicant’s allegation that the Regional Court had violated the law in that it took aspects of deterrence ( Spezial - und Generalprävention ) into account when determining his sentence. However, within the statutory range of punishment, the court, when determining which specific sentence was commensurate to the accused’s guilt, had a certain margin of appreciation within which it could also have regard to aspects of deterrence. Thus, the applicant had to be understood as alleging that the Regional Court had not correctly exercised its discretion. This question had to be examined before the Innsbruck Court of Appeal ( Oberlandesgericht ).

On 1 February 1996 the Innsbruck Court of Appeal dismissed the applicant’s appeal ( Berufung ). It noted that the Regional Court had relied on well established case-law when indicating that it had also taken aspects of deterrence into account. The Court of Appeal stated that it saw no reasons to reduce the sentence and confirmed the Regional Court’s view that the sentence was commensurate to the applicant’s guilt.

B. Relevant domestic law and practice

The applicant alleges that the determination of the concrete sentence was in contr a diction with section 32 of the Criminal Code ( Strafgesetzbuch ). Section 32  in the version which was in force at the material time - read as follows:

“(1) The basis for assessing the sentence is the degree of the offender’s guilt.

(2) In assessing the sentence, the court must weigh up the aggravating and mitigating factors, in so far as they have not already been taken into account to determine the type or tariff of penalty applicable. It must have regard, above all, to the extent to which the offence can be attributed to an attitude of reje c tion or indifference on the part of the offender towards values protected by the law, and the extent to which it can be traced back to external circumstances or motives capable of inducing even a law-abiding person to commit it.

(3) As a general principle, the severity of the sentence should be increased in proportion to the signif i cance of the damage or injury, or risk of damage or injury, caused by the offender or for which he is l i able, even if he did not cause it himself; the number of duties he breached by his conduct and the d e gree of premeditation, of care in preparing or ruthlessness in committing the offence, and in inverse proportion to the extent to which it could be guarded against.”

The established case-law (see for instance the Supreme Court’s judgments of 10.10.1977, EvBl 1978/49, of 21.06.1979, EvBl 1979/208, of 09.12.1980, EvBl 1981/117 and of 24.03.1983, EvBl 1984/38), as well as the prevailing opinion in academic writing (see for example Burgstaller , Grundprobleme des Strafzumessungsrechts in Österreich , ZStW 94 (1982) 127), interpret the above provision as follows: The offender’s guilt is decisive for the determination of the penalty. However, the offender’s guilt cannot be equated to one precise amount of penalty ( Punktsstrafe ), but determines a range of possible punishment ( Schu l drahmentheorie ). The actual sentence imposed on the offender must not exceed this range. Within this range, however, aggravating and mitigating circumstances  as enumerated in se c tions 33 and 34 of the Criminal Code  as well as aspects of deterrence may be taken into co n sideration when determining the actual amount of penalty.

COMPLAINTS

The applicant complains that the courts violated Article 7 of the Convention in that they took aspects of deterrence into account when determining his sentence. He submits in particular that this was contrary to the Criminal Code as the wording of section 32 does not explicitly refer to aspects of deterrence. He also invokes Article 6.

THE LAW

The applicant complains that the courts violated Article 7 of the Convention in that they took aspects of deterrence into account when determining his sentence. He alleges that this was not covered by section 32 of the Criminal Code. He also invokes Article 6 of the Convention.

The Court considers that the essence of the applicant’s complaint need only be e x amined under Article 7 § 1, which reads as follows:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court first notes that the offence of which the applicant was found guilty was punishable with six months’ to five years’ imprisonment. The applicant has not contested that this penalty was already applicable when the criminal offence was committed or that the sentence imposed on him, namely a prison term of two and a half years, lies within the stat u tory range of punishment.

The Court therefore considers it necessary to examine whether the fact that the n a tional courts may take aspects of deterrence into account when determining the applicant’s sentence was foreseeable in the applicant’s case. It is true that section 32 of the Austrian Criminal Code does not explicitly refer to the term “aspects of deterrence” as an element that may be taken into consideration when determining the sentence. However, it is long esta b lished case-law that the offender’s guilt defines only the possible range of punishment in the concrete case. Within that range the courts may take into consideration aggravating and mit i gating circumstances as well as aspects of deterrence. This interpretation of section 32 of the Criminal Code was therefore reasonably foreseeable for the applicant. Thus, the Court cannot find any appearance of a violation of Article 7 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar President