Resolution ResDH(2004)74

concerning the judgment of the European Court of Human Rights of 3 October 2000 in the case of Pobornikoff against Austria

(Adopted by the Committee of Ministers on 22 December 2004 at the 906th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 1 1 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the case of Pobornikoff delivered on 3 October 2000 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 2850 1 /95) against Austria , lodged with the European Commission of Human Rights on 2 1 July 1 994 under former Article 25 of the Co n vention by Mr Dimiter Pobornikoff , a German national, and that the Commission declared admissible the complaint that in criminal proceedings against him, he was not present at the hearing of his appeal on the merits and his plea of nullity before the Supreme Court, which subsequently rejected his appeal and upheld the sentence of life imprisonment;

Recalling that the case was brought before the Court by the government of the respondent state on 5 July 1999;

Whereas in its judgment of 3 March 1 999 the Court, unanimously:

- held that there had been no violation of Article 6, paragraph 1, taken in conjunction with Article 6, paragraph 3 (c), of the Convention as regards the applicant ' s absence at the hearing of the plea of nullity;

- held that there had been a violation of Article 6, paragraph 1, taken in conjunction with Article 6, paragraph 3 (c), of the Convention as regards the applicant ' s absence at the hearing of the appeal;

Recalling that, the applicant having made no claim for just satisfa c tion, the Court granted none;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 3 October 2000, having regard to Austria ' s obligation under Article 46, paragraph 1 , of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Declares, after having examined the information supplied by the Government of Austria, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH(2004)74

Information provided by the Government of Austria during the examination of the Pobornikoff case

by the Committee of Ministers

The violation of the European Convention on Human Rights in this case originated in Section 296, paragraph 3, of the Code of Criminal Procedure which provided that an accused person could only ensure his presence at appeal hearing by making a request to that effect in his appeal or counter-statement. The European Court of Human Rights concluded that the applicant should nevertheless have been brought before the Supreme Court at the hearing of his appeal, as the court could not properly decide on a possible reduction of the life sentence without gaining a personal impression of the applicant.

Concerning individual measures , following the European Court ' s judgment, the Chief State Prosecutor requested the Supreme Court, under Section 363, paragraph a, of the Code of Criminal Procedure, to reopen the impugned proceedings so as to rectify the procedural shortcomings at the basis of the violation of Article 6, paragraph 1 , of the Convention [*] . As a result, by decision of 4 September 200 1 , the Supreme Court decided to reopen the impugned proceedings. The applicant was summoned and heard at a new public hearing held before the Supreme Court on the same date. However, the Supreme Court found no mitigating circumstances to reduce the applicant ' s sentence.

As regards general measures , t he judgment of the European Court of 3 October 2000 was rapidly sent out to the Supreme Court and published in the Newsletter of the Österreichisches Institut für Menschenrechte ( No. 2000/5), to inform all authorities concerned of the violation found, thus allowing them to avoid new, similar violations in their practice. It may be recalled in this respect that the Convention and the European Court ' s case-law are granted direct effect by all supreme judicial authorities in Austria (see Resolution DH(93)60 in the case of Oberschlick No. 1 , adopted on 1 4 December 1 993 and Resolution ResDH(2002)99 in the case of Ahmed, adopted on 7 October 2002).

Subsequently, the problem at the basis of the violation has been fully remedied through an amendment to Section 294 of the Code of Criminal Procedure, which entered into force on 1 November 2000, which now provides that every detained person should be summoned and appear at the public hearing of his appeal unless he or his legal counsel expressly waives the right to do so. Accordingly, there is no longer any risk of the repetition of the violation similar to that found by the European Court in this case.

The Government of Austria concludes, in the light of the individual and general measures taken, that Austria has fulfilled its obligations under Article 46, paragraph 1 , of the Convention.

[*] By a judgment of 4 September 200 1 , the Supreme Court decided to reopen the contested proceedings.