DISSENTING OPINION OF Mr B. MARXER

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

The applicant, assisted by his official defence counsel, lodged an appeal complaining about the severity of the sentence, referring to further mitigating circumstances such as his previous reputable life, his feelings of regret and repentance and his emotional state at the time of the offence.  The Public Prosecutor's Office also appealed against the sentence, requesting that a life sentence be imposed.  The Office considered that the fact that applicant's responsibility had been diminished at the time of the offence could not be regarded as a mitigating factor.  Rather it showed the applicant's particular dangerousness and aggressiveness towards women intending to terminate their relations with him.

The Supreme Court's task is generally limited to supervising the correct application of the criminal law, and the question of whether mitigating or aggravating circumstances have been correctly taken into account is a question of law.  In the exercise of its supervisory functions, the Supreme Court is bound by the jury's findings as to the facts.

In the present case, the Supreme Court had to consider both appeals against sentence on the basis of the facts established by the Court of Assizes of the Innsbruck Regional Court.  On that basis, the Supreme Court, having regard to the applicant's own submissions, considered that although he apparently quickly lost his self-control in contacts with women, there was no sufficient reason to exclude the mitigating circumstance of his previous good conduct.  The Supreme Court further, on the basis of the file, considered that there had been no provocation and that there were no indications of an exceptional mental or emotional excitement.  Except for the further mitigating circumstance, there was no other reason to amend the evaluation regarding the applicant's character or his mental state at the time of the offence, or his motive.  Taking all circumstances into account, the sentence imposed by the trial court appeared appropriate.

The only issue to be determined by the Supreme Court was whether, having regard to the established facts, the relevant provisions of the Austrian Penal Code regarding mitigating or aggravating circumstances had been correctly applied.  In particular, it has to be stressed that the Supreme Court itself was not called upon to make a direct assessment of the applicant's personality and character.  Accordingly, the personal attendance of the applicant at the hearing, failing a formally valid request by or on behalf of the applicant, was not required by Article 6.

Accordingly, in the present case there has been no violation of Article 6 paras. 1 and 3 (c) of the Convention.