AS TO THE ADMISSIBILITY OF
Application No. 21528/93
by Jan BOHUSLAV and Jirí LAUSMAN
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 August 1992 by
Jan BOHUSLAV and Jirí LAUSMAN against Austria and registered on
15 March 1993 under file No. 21528/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Czech citizen born in 1975 and 1972,
respectively. The first applicant is living in Prague and the second
applicant is living in Horice.
The facts, as they have been submitted by the applicants, may be
summarised as follows.
A. Particular circumstances of the case
On 13 August 1990 a member of the private security staff of a
banking institute arrested the applicants in Vienna on the suspicion
of conspiracy to a robbery and handed them over to the police. In the
course of this incident, the second applicant was wounded by a bullet.
On 13, 14, 16 and 20 August 1990 the applicants were questioned
by the Investigating Judge of the Vienna Juvenile Court
(Jugendgerichtshof) and the Vienna police authorities. During these
interrogations concerning the charge of attempted robbery, no counsel
was present. Furthermore, the interpreter who assisted the police
authorities was neither court-appointed, nor had he been previously
sworn in.
On 27 August 1990 the Vienna Public Prosecutor's Office
(Staatsanwaltschaft) dropped the charge for bodily harm brought by the
second applicant against the member of the security staff who had
wounded him.
On 20 September 1990 the Vienna Juvenile Court convicted the
applicants of conspiracy to commit a robbery and sentenced both to
eight months' imprisonment, suspended on probation. The applicants were
subsequently released on parole.
On 21 February 1991 the Vienna Court of Appeal (Oberlandes-
gericht) dismissed the applicants' appeal for nullity (Berufung wegen
Nichtigkeit) and their appeal against the assessment of guilt (Berufung
wegen Schuld). Upon the first applicant's appeal against sentence
(Berufung wegen Strafe), it reduced his prison term to six months. The
decision was served upon the applicants' counsel on 29 March 1991.
On 28 January 1992 the Attorney General (Generalprokurator), upon
the suggestion of the Office of the President of the Czechoslovak
Republic, lodged a plea of nullity for the preservation of the law
(Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme
Court (Oberster Gerichtshof).
On 17 March 1992 the Supreme Court held that the law had been
infringed in the preliminary investigations against the applicants, in
that the Investigating Judge had omitted to appoint immediately a
defence counsel when he instituted preliminary investigations against
two minors. Moreover, the interpreter who assisted in the questioning
of the applicants had not been sworn in.
B. Relevant domestic law
According to S. 33 para. 2 of the Code of Criminal Procedure
(Strafprozeßordnung), the Attorney General, on his own motion or upon
the request of the Ministry for Justice, may lodge a plea of nullity
for the preservation of the law against any judgment, claiming that it
infringes the law or is based on an incorrect application of the law.
COMPLAINTS
1. The applicants complain under Article 5 para. 2 and Article 6
para. 3 (a) of the Convention that the criminal proceedings against
them were unfair, in particular that they had no proper interpretation
at the questionings by the Investigating Judge and before the police
authorities.
2. The applicants further complain under Article 3 of the Convention
about the circumstances of their arrest by the security staff. The
second applicant also complains under Article 2 para. 1 and Article 5
of the Convention about his having been wounded by the member of the
security staff, and about the discontinuation of the criminal
proceedings against the latter.
THE LAW
1. The applicants complain under Article 5 para. 2 and Article 6
para. 3 (a) (Art. 5-2, 6-3-a) of the Convention that the criminal
proceedings against them were unfair.
Under Article 26 (Art. 26) of the Convention, the Commission may
only deal with an application within a period of six months from the
date on which the final decision was taken. According to the
Commission's constant jurisprudence, the "final decision" within the
meaning of that provision refers solely to the final decision involved
in the exhaustion of all domestic remedies according to the generally
recognised rules of international law. In particular, only a remedy
which is "effective and sufficient" can be considered for this purpose
(No. 8850/80, Dec. 7.10.1980, D.R. 22 p. 232; No. 10308/83,
Dec. 3.5.1983, D.R. 36, p. 209).
In the present case, the Vienna Court of Appeal's decision of
21 February 1991, dismissing the applicants' appeals against their
conviction, was served upon their counsel on 29 March 1991, whereas
they lodged their application on 12 August 1992, i.e. more than six
months later.
The Supreme Court's decision of 17 March 1992 on a plea of
nullity for the preservation of the law, brought by the Attorney
General, cannot be taken into account when calculating the six-months'
period. In this respect, the Commission notes that solely the Attorney
General disposes of the right to lodge an appeal for the preservation
of the law, within the meaning of S. 33 para. 2 of the Austrian Code
of Criminal Procedure. This remedy cannot, therefore, be regarded as
an effective remedy for the purposes of Article 26 (Art. 26), which the
applicants could and would have to exhaust according to the generally
recognised rules of international law.
The Commission observes further that the plea of nullity for the
preservation of the law was filed by the Attorney General on 28 January
1992, that is ten months after the Vienna Court of Appeal's decision
of 21 February 1991 had been served on the applicant's lawyer.
Therefore, the Commission finds that no special circumstances existed
which could justify that the applicants had waited for introducing
their application to the Commission.
It follows that this part of the application is to be rejected
for non-compliance with the six-months' rule laid down in Article 26
(Art. 26) of the Convention.
2. The applicants further complain under Article 3 (Art. 3) of the
Convention about the circumstances of their arrest by the security
staff and the second applicant complains under Article 2 para. 1
and Article 5 (Art. 2-1, 5) of the Convention about his having been
wounded by the member of the security staff, and about the
discontinuation of the criminal proceedings against the latter.
The Commission recalls that the Convention does not give a right
to institute criminal proceedings against a third person (Appl.
No. 7116/75, Dec. 4.10.76, D.R. 7 p. 91).
Furthermore, the Commission notes that the applicants' complaints
about the specific circumstances of their arrest, in particular about
the second applicant having been wounded, are directed against private
persons, namely the members of the security staff of the banking
institute, whose actions do not fall under the responsibility of the
State.
It follows that the remainder of the application is incompatible
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy