Information Note on the Court’s case-law 15

February 2000

Cooke v. Austria - 25878/94

Judgment 8.2.2000 [Section III]

Article 6

Article 6-3-c

Defence in person

Refusal to allow appellant to attend hearing of appeal against sentence: violation

Facts : The applicant was convicted of murder by a jury which also found that he was criminally responsible. He was sentenced to 20 years' imprisonment, the court taking into account as mitigating circumstances his diminished responsibility. The applicant lodged a plea of nullity and also an appeal against sentence, in which he invoked further mitigating circumstances;  the prosecution also appealed against the sentence, reque sting a life sentence. The Supreme Court issued a summons for the hearing on the plea of nullity and the appeals, indicating that, in respect of the plea of nullity the applicant, being incarcerated, could only appear through his official defence counsel a nd that, in respect of the appeals, he would not be brought before the court as the relevant conditions were not satisfied. The applicant was informed a few days before the hearing that S. had been appointed as his counsel and he immediately wrote to the c ourt requesting permission to attend the hearings as an observer. He was informed that this was not possible. The hearing was held in his absence. The Supreme Court rejected the plea of  nullity and upheld the sentence imposed by the trial court.

Law : Gove rnment's preliminary objection:  The Court decided to join to the merits the Government's preliminary objection, in which they claimed that the applicant had failed to make an explicit request to be brought before the Supreme Court, as opposed to his reque st to attend as an observer.

Article 6 § 1 and § 3 (c): The Austrian Supreme Court in nullity proceedings deals primarily with questions of law arising in relation to the conduct of the trial and other matters, and the presence of the appellant is not gene rally required by these provisions. In this case, the applicant's plea of nullity related to procedural and legal matters and his general apprehensions are not sufficient to cast doubt on the effectiveness of his representation at the hearing. There were t hus no special circumstances warranting his personal presence, and there was no violation of Article 6 in that respect. However, with regard to the appeals against sentence, the court was called on to examine whether the sentence should be increased or red uced and in this respect it had to consider the applicant's personality and character, including his state of mind at the time of the offence, his motive and his aggressiveness in general. Taking into account what was at stake, the case could not be proper ly examined without gaining a personal impression of the applicant and it was essential that he be present and afforded an opportunity to participate. Moreover, although the defence counsel did not request that the applicant be summoned, the State was in t he circumstances under a positive duty to ensure his presence, and there had no therefore been a failure to exhaust domestic remedies.

Conclusion : violation (unanimous).

Article 34 (former Article 25 § 1): The Court has jurisdiction under this provision to examine incidents which occurred partly before and partly after the Commission's decision on admissibility, notwithstanding the fact that the Commission did not examine the issue. However, the Government's approach to the applicant's former representative , while undesirable, cannot be regarded as pressure on the applicant to withdraw or modify his complaint or as designed to dissuade or discourage him from pursuing it. Furthermore, the applicant has not provided any proof in respect of alleged overhearing of telephone conversations or opening of letters by the prison authorities and there is nothing to show that he was in any way frustrated in the exercise of his right of petition.

Conclusion : no violation (unanimous).

Article 41: The Court awarded the applicant GBP 1,000 in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.

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