Final resolution DH (2000) 2

HUMAN RIGHTS

APPLICATION No. 22961/93

ILHAN AGAINST AUSTRIA

(Adopted by the Committee of Ministers on 14 February 2000 at the 695th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH (97) 593, adopted on 15 December 1997 in the case of Ilhan against Austria, in which the Committee of Ministers decided that there had been a violation of Article 6, paragraph 1, combined with Article 6, paragraph 3. c , of the Convention because certain criminal proceedings brought against the applicant had been unfair since the applicant, who had refrained from attending the hearing of his objection ( Einspruch ) against his conviction in absentia , could not be defended by his appointed counsel at this hearing; and also decided to make public the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 16 December 1998;

Whereas at the 666th meeting of the Ministers’ Deputies, the Committee of Ministers, agre e ing with the Commission’s proposals, held by a decision adopted on 15 April 1999, in accordance with Article 32, paragraph 2, of the Convention, that the Government of the respondent State was to pay the applicant as just satisfaction, within three months, 9 000 Austrian schillings in respect of non-pecuniary damage and 27 000 Austrian schillings in respect of costs and expenses, namely a total sum of 36 000 Austrian schillings, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the Government of the respondent State to inform it of the measures taken following its decisions of 15 December 1997 and 15 April 1999, having regard to Austria’s obligation under Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State accordingly gave the Committee information about the measures taken in consequence of the Committee’s decisions to avoid new violations of the same kind as the one found in this case (this information a p pears in the appendix to this resol u tion);

Whereas the Committee of Ministers satisfied itself that on 17 May 1999, within the time-limit set, the Government of the respondent State had paid the applicant the total sum of 36 000 Austrian schillings as just satisfaction,

Declares, after having taken note of the measures taken by the Government of Austria, that it has exercised its fun c tions under Article 32 of the Convention in this case.

Appendix to Final Resolution DH (2000) 2

Information provided by the Government of Austria during the examination of the Ilhan case by the Committee of Ministers

The violation of the European Convention on Human Rights in this case originated in Section 478, paragraph 3, of the Code of Criminal Procedure which provided that if an accused person, having lodged an objection ( Einspruch ) to a judgment delivered in absentia refrained from appearing in person before the court, his objection was considered void and the first judgment delivered in absentia became final. The absent accused had therefore no possibility to be defended by counsel before the court hearing the objection.

Following the Committee of Ministers’ decision finding a violation of Article 6 of the Convention, the Austrian authorities undertook a legal reform of the above-mentioned provision. The law abolishing the last sentence of paragraph 3 of Section 478 of the Code of Criminal Procedure entered into force on 10 April 1999 after its publication in the Austrian Federal Law Gazette ( BGBl. I No. 55/1999 ).

The government considers that since an accused in the applicant’s position can henceforth at least present his or her defence at the hearing through counsel, there is no longer any risk of new similar violations of the Convention. Consequently, Austria has fulfilled its obligations under Article 32 of the Convention in the present case.