AS TO THE ADMISSIBILITY OF
Application No. 12960/87
by Franz HÖLLMÜLLER
against Austria
The European Commission of Human Rights sitting in private
on 3 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 March 1987
by Franz Höllmüller against Austria and registered on 3 June 1987
under file No. 12960/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1949, is an Austrian national and
resident in Korneuburg. When lodging his application he was detained
at the Korneuburg Prison.
In 1986 criminal proceedings were instituted against the
applicant on charges of murder, fraudulent conversion and unlawful
possession of a fire-arm. He was detained on remand from 16 January
until 7 October 1986.
On 6 and 7 October 1986 the Assize Court at the Korneuburg
District Court (Geschwornengericht beim Kreisgericht) held the trial
against the applicant who was represented by a chosen defence counsel.
On 7 October 1986 the Court convicted the applicant of
second-degree murder (Totschlag), fraudulent conversion and unlawful
possession of a fire-arm and sentenced him to seven years'
imprisonment. The jury found that the applicant had fraudulently
deprived a 60 year old woman of AS 20,000 and killed her in the course
of a dispute about this offence four months later. As regards the
sentence the Court considered as a mitigating circumstance in
particular that the applicant had confessed the offences. As
aggravating circumstances it took into account that the applicant had
committed several criminal offences and that he had profited by the
victim's weakness and helplessness. The period of his detention on
remand was to be counted towards his sentence.
On 1 December 1986 the applicant, represented by his defence
counsel, lodged a plea of nullity (Nichtigkeitsbeschwerde) against the
conviction and an appeal (Berufung) against the sentence. He alleged
in particular inconsistencies of the jury's vote and the minutes of
the vote. Furthermore he submitted that the Assize Court had failed
to decide upon an extraordinary mitigation of the sentence in his
case.
On 2 December 1986 the Korneuburg Public Prosecutor's Office
(Staatsanwaltschaft) also lodged a plea of nullity and an appeal. It
submitted in particular that the Assize Court incorrectly assessed the
aggravating circumstances and argued that the applicant had committed
a particularly callous and premeditated murder.
On 26 January 1987 the Austrian Supreme Court (Oberster
Gerichtshof) fixed the public hearing of the appeal and plea of
nullity for 19 February 1987. The applicant's defence counsel was
summoned. The applicant, who was in custody, was informed about the
date of the hearing and told that he could only be represented by
defence counsel at the hearing. The Court did not order that the
applicant be brought before it at the hearing. The Court, in this
respect, referred in particular to S. 286 para. 2 and S. 296 para. 3
of the Austrian Code of Criminal Procedure (Strafprozessordnung).
S. 286 para. 2 provides with regard to proceedings concerning
pleas of nullity that the defendant in custody shall be informed of
the day of the hearing. It shall be pointed out to him that he may
only be represented by defence counsel.
According to S. 296 para. 3 of the Code of Criminal Procedure,
as amended after the friendly settlement in the Peschke case
(No.8289/78, Comm. Report 13.10.81, D.R. 25 p. 182), S. 286 and 287
are applicable mutatis mutandis to appeal proceedings as regards the
fixing of a day for the public hearing and the procedure, provided
that the defendant not in custody shall always be summoned and that
the defendant in custody shall be brought before the court, if he so
requests in his appeal or in his counter-statement, or if his
production appears to be necessary in the interests of proper
administration of justice for other reasons ("... auch die Vorführung
des verhafteten Angeklagten zu veranlassen ist, wenn er dies in seiner
Berufung oder Gegenausführung beantragt hat oder die Vorführung sonst
im Interesse der Rechtspflege geboten ist.")
It does not appear that a request under S. 296 para. 3 of the
Code of Criminal Procedure, to be brought before the Supreme Court at
the appeal hearing, had been filed by the applicant or his defence
counsel in the present case.
On 19 February 1987 the Supreme Court dismissed both pleas of
nullity. Upon the Public Prosecutor's appeal, it increased the
sentence to nine years' imprisonment. The applicant's appeal was
dismissed accordingly. As regards the applicant's plea of nullity the
Court found that only defects in the vote as such could have entailed
the nullity of the judgment in question. Furthermore the Court,
having regard to the appeals, considered that the applicant's criminal
offences were interrelated in the sense that the earlier unscrupulous
fraudulent conversion resulted in the later dispute and murder. The
Court concluded that the outstanding degree of unlawfulness
(überdurchschnittlicher Unrechtsgehalt) of the offences committed by
the applicant required the increase of his sentence.
COMPLAINTS
The applicant complains under Article 6 para. 3 (d) of the
Convention that he was wrongly convicted and sentenced. Furthermore
he submits that the Court proceedings were unfair in particular on the
ground that his confession had been extorted and that the Assize Court
did not examine witnesses on his behalf. Moreover he complains that
he could not in person attend the hearing before the Supreme Court.
THE LAW
The applicant complains that he was wrongly convicted and
sentenced by the Korneuburg District Court on 7 October 1986 and also
of the court proceedings concerned.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236
; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45).
It is true that the applicant also complains under Article 6
para. 3 (d) (Art. 6-3-d) of the Convention that the court proceedings
were unfair. He considers, in particular, that the Assize Court failed
to examine witnesses on his behalf. Furthermore he complains that he
was not allowed to attend the hearing before the Supreme Court.
The Commission has examined these complaints under Article 6
paras. 1 and 3 (c) and (d) (Art. 6-1, 6-3-c) of the Convention.
However, as regards the proceedings before the Assize Court,
the Commission, even assuming that the domestic remedies, in this
respect, were properly exhausted, finds that the applicant, who was
represented by a defence counsel of his own choosing, did not show
that he could not properly present his arguments at the trial or, in
particular, that he had requested the Assize Court to hear certain
witnesses on his behalf.
With regard to his complaint concerning the appeal proceedings
the Commission recalls that Article 6 (3) (c) (Art. 6-3-c) and Article
6 (1) (Art. 6-1) of the Convention do not expressly guarantee the
right to be present during the hearing of an appeal, but that the
right to be present must be considered with the other rights of the
defence in the context of an evaluation of the fairness of the
proceedings as a whole (cf. Nos. 1169/61, Yearbook 6 p. 520; 2635/65,
Coll. 28 p. 43, 49; 7138/75, D.R. 9 p. 50 and 8289/79, D.R. 18 p. 160;
No. 9315/81, Dec. 15.7.83, D.R. 34 p. 96).
In the present case, the Commission notes that the Supreme
Court informed the applicant about the date fixed for the hearing,
and, referring to the relevant provisions of the Code of Criminal
Procedure, stated that he could only be represented by counsel. The
Supreme Court did not order that the applicant be brought before it at
the hearing, because the conditions under S. 296 para. 3 of the Code
of Criminal Procedure were not met. Furthermore, the Commission notes
that under S. 296 para. 3 the defendant in custody shall be brought
before the court at a hearing, if he so requests.
The Commission finds that the applicant has not shown that he
or his defence counsel filed such a request under S. 296 para. 3 of
the Code of Criminal Procedure. There is nothing in the applicant's
submissions to indicate that he or the counsel of his own choosing
were prevented from filing such a request and thus could not take care
that he was brought before the Supreme Court at the hearing. The
Commission considers in particular that the Supreme Court informed the
applicant about the date of hearing and his representation by counsel
in accordance with the relevant provisions of the Austrian Code of
Criminal Procedure.
It follows that the applicant is himself responsible for the
fact that he was not present at the hearing before the Supreme Court.
Furthermore, the Commission notes that the applicant's plea of
nullity and his appeal were presented in writing by his defence
counsel, who had already represented him in the proceedings at first
instance. His defence counsel was also present at the hearing before
the Supreme Court.
The Commission considers that, in these circumstances, there
is nothing in the applicant's submissions to suggest that the
proceedings before the Supreme Court were unfair, or otherwise
improperly conducted.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)