DISSENTING OPINION OF MM N. BRATZA, C. L. ROZAKIS,

Mrs J. LIDDY, MM B. MARXER, M. VILA AMIGO AND Mrs M. HION

We cannot share the view of the majority of the Commission that there has been a violation of Article 6 para. 1 of the Convention.

First we note that, the Supreme Court's task was limited to reviewing the findings of the lower instance which had heard the applicant directly.

Moreover, we attach importance to the fact that the Supreme Court had no power to impose a more severe sentence than that passed at first instance.

Taking into account the limited jurisdiction of the Supreme Court, it was not essential to the fairness of these proceedings that the applicant, who was detained in a mental institution, be present at the hearing together with his official defence counsel.  In our view, the Supreme Court, in the absence of any new factual elements, could adequately examine the Regional Court's prior assessment of the applicant's dangerousness in future on the basis of the case-file, which included psychiatric experts' reports and written submissions filed by the applicant.

In these circumstances, we consider that, in the absence of a request for leave to attend the hearing in accordance with S. 296 para. 3 of the Code of Criminal Procedure and of any other recorded motion to this effect, the Supreme Court could reasonably refrain from ensuring ex officio the applicant's personal presence at the hearing.  The interests of the applicant who was, according to the Austrian courts' findings, suffering from mental illness were safeguarded through his legal representation (cf., mutatis mutandis , Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 24, para. 60; Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-A, pp. 11-12, para. 22).

Having regard to the entirety of the proceedings before the Austrian courts, the nature of the issue before the Supreme Court  and to its limited jurisdiction, we find that there were special features justifying the applicant's absence from the hearing of his appeal, failing a formally valid request by or on behalf of the applicant to attend the hearing of his appeal.

Consequently, the applicant's absence from the Supreme Court's hearing of the appeals did not violate his right to a fair trial including the right to defend himself in person.