THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35400/97 by Agan KADUSIC against Austria

The European Court of Human Rights ( Third Section ) sitting on 7 December 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann, 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 19 December 1996 by Agan Kadusic against Austria and registered on 20 March 1997 under file no. 35400/97;

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 Bosnian national, born in 1960 and living in Linz.

He is represented before the Court by Mr T. Moser, a lawyer practising in Linz.

A. Particular circumstances of the case

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

On 5 July 1995 the applicant was arrested and taken into detention on remand on the suspicion of, inter alia, rape and intimidation. In the criminal proceedings against him, the applicant was assisted by Mr Moser as defence counsel.

The trial before the Linz Regional Court, sitting as a court with lay assessors ( Schöffengericht ), took place on 20 October 1995, 26 January and 19 March 1996. The Court was composed of two professional judges and two lay assessors.

At the hearing of 20 October 1995, the two lay assessors had to swear the judicial oath, in accordance with section 240a of the Code of Criminal Procedure ( Strafprozessordnung ). Under this oath, they are obliged to render judgment in accordance with existing law, to be independent and impartial and to resist influence by external pressures of any kind. The hearing was adjourned sine die in order to hear witnesses.

The trial was repeated, because of lapse of time, on 26 January 1996. The presiding judge stated at the beginning of the hearing that the lay assessors had sworn the oath in the proceedings at issue.

Following the continued hearing on 19 March 1996, the Regional Court convicted the applicant of rape, intimidation, attempted unlawful coercion and of having caused bodily harm as well as of an offence under the Weapons Act ( Waffengesetz ), and sentenced him to two years’ imprisonment. The Regional Court, having particular regard to the applicant’s statements and to the testimony of several persons heard as witnesses, as well as to medical and psychiatric expert evidence, found the applicant guilty of the offences in question.

The applicant lodged a plea of nullity ( Nichtigkeitsbeschwerde ) and an appeal ( Berufung ) against sentence with the Supreme Court ( Oberster Gerichtshof ).

On 20 August 1996 the Supreme Court dismissed the plea of nullity. It found, inter alia, that under section 240a of the Code of Criminal Procedure it had not been sufficient for the Regional Court to state merely at the hearing of 26 January 1996 that the lay assessors had already been sworn in for the same criminal proceedings in October 1995, since the oath of a lay assessor was only valid for the duration of one calendar year. However, it was clear from the specific circumstances of the case that this procedural mistake had no bearing whatsoever on the outcome of the criminal proceedings. It was inconceivable that the lay judges would have been less conscious of their oath made three months ago than a lay assessor who, in conformity with section 240a of the Code of Criminal Procedure, had given his or her oath in a different set of criminal proceedings even longer before (i.e. up to one year). The Supreme Court transferred the case regarding the appeal to the Linz Court of Appeal. The outcome of the appeal proceedings remains unknown.

B. Relevant domestic law

According to section 240a of the Code of Criminal Procedure, the lay assessors, who have not sworn the judicial oath in the calendar year, have to swear the oath. Failure to swear the oath is a reason for nullity. Section 240a(1) and (2) further regulate the form of swearing the oath and its contents. Paragraph 3 of section 240a provides that the judicial oath is valid for the calendar year.

Sections 273 to 276a concern the adjournment of the trial. Sections 273 to 276 set out the reasons for adjourning the trial. Section 276 a provides that in the hearing following the adjournment, the presiding judge summarises orally the relevant results of the preceding hearing on the basis of the trial record and other files to be taken into account and can then resume the hearing. The hearing shall, however, be repeated, if, inter alia , more than two months have elapsed since the adjournment.

COMPLAINT

The applicant complains that the criminal proceedings against him have not complied with Article 6 § 1 of the Convention. He submits that the chamber of the Regional Court had not been properly composed because the lay assessors who had been sitting together with the professional judges had not been sworn in pursuant to certain requirements of the Code of Criminal Procedure.

THE LAW

The applicant complains that the criminal proceedings against him have not complied with Article 6 § 1 of the Convention because the lay assessors who had been sitting together with the professional judges had not been sworn in pursuant to certain requirements of the Code of Criminal Procedure.

Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”

The Court recalls that in order to determine whether the aim of Article 6 - a fair trial - has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (see the Imbroscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 14, § 38).

The Court observes that in its decision of 20 August 1996 the Supreme Court found that a procedural error in the criminal proceedings against the applicant had occurred in that the Regional Court, in the hearing of 26 January 1996, should have sworn in again the lay assessors and not merely stated that they had already taken the oath at a previous session. However, in the Supreme Court’s view this procedural mistake had no bearing on the outcome of the criminal proceedings as it was inconceivable that the lay judges would have been less conscious of their oath made three months ago than a lay assessor who, in conformity with section 240a of the Code of Criminal Procedure, had given his or her oath in a different set of criminal proceedings even longer before. The Court also observes that the applicant has given no indication as to how this procedural mistake could have adversely influenced the proceedings against him.

Having considered the conduct of the domestic proceedings as a whole in the present case, the Court cannot find that the Regional Court’s failure to repeat the lay assessors’ oath at its hearing on 26 January 1996 infringed the applicant’s rights under Article 6 § 1 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza

Registrar President