Resolution ResDH(2004)76

concerning the judgment of the European Court of Human Rights of 8 February 2000 in the case of Michael Edward Cooke 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 Michael Edward Cooke delivered on 8 February 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. 25878/94) against Austria , lodged with the European Commission of Human Rights on 1 2 August 1 994 under former Article 25 of the Convention by Mr Michael Edward Cooke, a British national, and that the Commission declared admissible the complaint that in criminal proceedings against him, he was not present at the hearing of the appeals against his sentence before the Supreme Court, which subsequently rejected the appeals and upheld his sentence of twenty years ' imprisonment;

Recalling that the case was brought before the Court by the Commission, on 2 November 1 998;

Whereas in its judgment of 8 February 2000 the Court, unanimously:

- held that there had been a violation of Article 6, paragraph 1, taken in conjunction with Article 6, paragraph 3 (c), of the Convention;

- held that there had been no violation of former Article 25, paragraph 1, of the Convention and Article 34 of the Convention;

- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 1 000 pounds sterling in respect of non-pecuniary damage and 1 2 000 pounds sterling, less the amounts paid by way of legal aid, for costs and expenses and that simple interest at an annual rate of 7.5% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant ' s claim for just satisfaction;

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 measures which had been taken in consequence of the judgment of 8 February 2000, having regard to Austria ' s obligation under Article 46, paragraph 1 , of the Convention 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;

Having satisfied itself that on 1 2 April 2000, within the time-limit set, the government of the respondent state had paid the applicant the sums provided for in the judgment of 8 February 2000,

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

Appendix to Resolution ResDH(2004)76

Information provided by the Government of Austria during the examination of the case of Michael Edward Cooke

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 the hearing of the appeals by making a request to this 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 the appeals, as the court could not properly decide on a possible reduction in sentence or increase to life imprisonment 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 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, the applicant was summoned and heard at a new public hearing held before the Supreme Court on 1 4 December 2000. Following this hearing, the Supreme Court upheld the conviction but reduced the sentence from twenty years to eighteen years ' imprisonment.

As regards general measures , t he judgment of the European Court of 8 February 2000 was rapidly disseminated to the Supreme Court and the Presidents of the Appellate Courts. Extracts of the judgment were published in “ Österreichisches Juristenzeitschrift (ÖJZ)” No. 1 5 of 2000, accessible to all judges and state attorneys , the Newsletter of Österreichisches Institut für Menschenrechte (No. 2000/ 1 ) and on the website: ttp://www.sbg.ac.at/oim , so as 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 in the present case 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 waive 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 considers, in the light of the individual and general measures taken, that Austria has fulfilled its obligations under Article 46, paragraph 1 , of the Convention.