AS TO THE ADMISSIBILITY OF
Application No. 20007/92
by Tibor FOCO
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 7 September 1993, 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
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
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 21 October 1992
by Tibor Foco against Austria and registered on 19 May 19912 under file
No. 20007/92;
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 applicant is an Austrian citizen born in 1956. He is
detained at Stein Prison. The facts of the application as submitted
by the applicant and apparent from the documents lodged with the
application, may be summarised as follows.
On 31 March 1987 the applicant, with a co-accused, was convicted
before the Linz Regional Court (Landesgericht) of several offences,
including murder. He was sentenced to life imprisonment. The pleas
of nullity and appeals against sentence by both co-accused were
dismissed by the Supreme Court (Oberster Gerichtshof) on 15 September
1987. The applicant's representative received the decision of the
Supreme Court on 23 October 1987.
On 12 May 1989 a request for the proceedings to be reopened
(Wiederaufnameantrag) was dismissed, and an appeal against that
decision was rejected by decision of the Linz Court of Appeal
(Oberlandesgericht) on 6 June 1989.
On 8 January 1991 the applicant made a disciplinary complaint
(Aufsichtsbeschwerde) against the presiding judge of the Court which
convicted him in 1987. On 14 May 1991 the Linz Court of Appeal
rejected nine of the applicants ten points. Point 6 of the applicant's
points related to a complaint that, on 23 and 24 April 1987 a witness
at the trial had been questioned by the police outside the confines of
the trial, and that the presiding judge had been present for part of
this questioning. The Linz Court of Appeal, agreeing with the
applicant, established a violation of Article 6 of the Convention in
that the applicant's rights to a fair trial had been denied by the
violation of the procedure rights to have public, direct and oral
hearing, and the principle that all authorities must establish facts
fairly (Instruktionsgrundsatz). The judgment of the Linz Court of
Appeal was declaratory, and no further measures followed.
On 11 December 1991 the Linz Regional Court dismissed requests
by the applicant and his co-accused for the re-opening of the
proceedings in which they were both convicted. The Linz Court of
Appeal, on 15 June 1992, re-opened the proceedings in respect of the
co-accused but rejected the appeal (Beschwerde) of the applicant
against the decision of 11 December 1991. The Court, referring to its
own decision of 14 May 1991, found that the violation of Article 6
there established could not give rise to the grounds for the
proceedings to be reopened under Article 353 para. 2 Code of Criminal
Procedure (Strafprozeßordnung).
COMPLAINTS
The applicant alleges a violation of Article 6 of the Convention
in respect of his conviction.
THE LAW
The applicant alleges a violation of Article 6 (Art. 6) of the
Convention in respect of his conviction.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision, as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ... within
a period of six months from the date on which the final decision was
taken".
In the present case the decision of the Supreme Court which was
the final decision regarding the proceedings leading to the applicant's
conviction was given on 15 September 1987 and received by the
applicant's then representative on 23 October 1987, whereas the
application was submitted to the Commission on 21 October 1991,
that is more than six months after the date of this decision.
Furthermore, an examination of the case does not disclose the existence
of any special circumstances which might have interrupted or suspended
the running of that period. The applicant's various attempts to have
the proceedings re-opened and the disciplinary proceedings he
introduced cannot affect this position.
The Commission notes that the decision of the Linz Court of
Appeal of 14 May 1991 that the proceedings violated Article 6 (Art. 6)
in one respect was given less than six months before the date of
introduction of the application. However, those proceedings were of
the nature of disciplinary proceedings against a judge. Accordingly,
notwithstanding the conclusion that Article 6 (Art. 6) had been
violated in one respect in the criminal proceedings, the disciplinary
proceedings did not themselves determine the criminal charges which
were at issue in the proceedings which culminated in the applicant's
conviction.
It follows that the application has been introduced out of time
and must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy