KAMASINSKI v. AUSTRIA



 

 

Application No. 9783/82

 

 

 

 

Theodore KAMASINSKI

 

 

 

against

 

 

 

AUSTRIA

 

 

 

REPORT OF THE COMMISSION

 

(adopted on 5 May 1988)

 

 

 

 

 

TABLE OF CONTENTS

 

 

 

I.      INTRODUCTION

        (paras. 1-23) ..........................................   1

 

        A.      The application

                (paras. 2-7) ...................................   1

 

        B.      The proceedings

                (paras. 8-18) ..................................   2

 

        C.      The present Report

                (paras. 19-23) .................................   3

 

II.     ESTABLISHMENT OF THE FACTS

        (paras. 24-86) .........................................   4

 

        A.      The particular circumstances of the case

                (paras. 24-60) .................................   4

 

                1.  The pre-trial investigations (paras. 26-42)     4

                2.  The trial (paras. 43-49) ....................   8

                3.  The appeal and nullity proceedings

                   (paras. 50-60) ..............................  10

 

        B.      The relevant domestic law

                (paras. 61-86) .................................  12

 

                1.  Interpretation (paras. 61-66) ...............  12

                2.  Offical defence counsel (paras. 67-75) ......  13

                3.  Inspection of court files (para. 76) ........  16

                4.  Keeping of records (para. 77) ...............  17

                5.  Nullity proceedings before

                   the Supreme Court (paras. 78-81) ............  18

                6.  Appeal proceedings before the Supreme Court

                   (paras. 82-86) ..............................  19

 

III.    SUBMISSIONS OF THE PARTIES

        (paras. 87-128) ........................................  21

 

        A.      The Applicant

                (paras. 87-110) ................................  21

 

        B.      The Government

                (paras. 111-128) ...............................  25

 

IV.     OPINION OF THE COMMISSION

        (paras. 129-222) .......................................  29

 

        A.      Points at issue

                (para. 129) ....................................  29

 

        B.      As to the Commission's task under Article 28 (a)

                of the Convention (paras. 130-135) .............  29

 

 

        C.      The proceedings before the Regional Court

                (paras. 136-187) ...............................  30

 

                1.  As to the alleged violation of Article 6

                   para. 3 (a) of the Convention

                   (paras. 137- 145) ...........................  30

                2.  As to the alleged violation of Article 6

                   para. 3 (b) of the Convention

                   (paras. 146-150) ............................  32

                3.  As to the alleged violation of Article 6

                   para. 3 (c) of the Convention

                   (paras. 151-162) ............................  32

                4.  As to the alleged violation of Article 6

                   para. 3 (d) of the Convention

                   (paras. 163-166) ............................  34

                5.  As to the alleged violation of Article 6

                   para. 3 (e) of the Convention

                   (paras. 167-181) ............................  35

                6.  As to the alleged violation of the applicant's

                   right, under Article 6 para. 1 of the

                   Convention, to a fair hearing in the

                   proceedings before the Regional Court

                   (paras. 182-183) ............................  38

                7.  As to the alleged violation of the

                   presumption of innocence (Article 6 para. 2

                   of the Convention (paras. 184-187) ..........  38

 

        D.      The Supreme Court proceedings

                (paras. 188-207) ...............................  39

 

                1.  As to the alleged violation of the

                   applicant's right, under Article 6 para. 1

                   of the Convention,  to a fair hearing in

                   the nullity proceedings (paras. 188-195) ....  39

                2.  As to the alleged violation of the

                   applicant's rights under Article 14 read

                   in conjunction with Article 6 para. 1 and

                   para. 3 (c) of the Convention, in the appeal

                   proceedings (paras. 196-204) ................  40

                3.  Article 13 of the Convention (paras. 205-207)  42

 

        E.      Recapitulation (para. 208) .....................  42

 

Separate opinion of Mr.  Trechsel, joined by Mr.  Vandenberghe ...  44

 

Partly dissenting opinion of Mr.  Weitzel, Sir Basil Hall and

                             Mrs.  Liddy ........................  45

 

Partly dissenting opinion of Mr.  Vandenberghe, Mrs.  Thune and

                             Mr.  Rozakis .......................  46

 

Separate opinion of Mrs.  Thune and Mrs.  Liddy ..................  46

 

APPENDIX I      :  HISTORY OF THE PROCEEDINGS ..................  47

 

APPENDIX II     :  DECISION ON THE ADMISSIBILITY ...............  49

 

I.    INTRODUCTION

 

 

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

 

 

A.      The application

 

2.      The applicant is a citizen of the United States of America,

born in 1937 and now residing in Connecticut, U.S.A.  In the

proceedings before the Commission he has been unrepresented.  However,

in certain matters, he has been assisted by his former defence

counsel, Dr.  Sch.

 

3.      The application is directed against Austria whose Government

were represented by their Agent, Ambassador Dr.  Helmut Türk, Head of

the International Law Department of the Federal Ministry of Foreign

Affairs.

 

4.      The application concerns criminal proceedings instituted

against the applicant before the Regional Court of Innsbruck in which

he was convicted of aggravated fraud and misappropriation and

sentenced to eighteen months' imprisonment.  The applicant filed an

appeal and a plea of nullity which were dismissed by the Supreme Court

on 1 September and 24 November 1981 respectively.

 

5.      With regard to his trial the applicant invokes Article 6

paras. 1 and 3 of the Convention.  He complains that his trial was

unfair and that his rights of defence were violated.  In particular,

he was not sufficiently informed of the charges against him, in a

language which he could understand, the interpretation was

insufficient, and the legal assistance ineffective.  He thus did not

have adequate facilities to prepare his defence and to put questions

to the witnesses.  He further alleges a violation of the presumption

of innocence, guaranteed by Article 6 para. 2 of the Convention, and

discrimination, contrary to Article 14 of the Convention.

 

6.      As regards the Supreme Court proceedings on his plea of

nullity, the applicant alleges that they were unfair and contrary to

Article 6 para. 1 because they involved a one-sided investigation of

the interpretation issue.  He further alleges that these proceedings

failed to provide an effective remedy concerning his above complaints

relating to his trial and therefore did not constitute an effective

remedy as required by Article 13 of the Convention.

 

7.      As regards the Supreme Court proceedings on the appeal against

the sentence, the applicant complains that he was not allowed to

attend in person while an accused at liberty would have had the right

to be present.  He considers that this violated Article 6 paras. 1 and

3 (c), read in conjunction with Article 14 of the Convention.

 

B.      The proceedings

 

8.      The application was introduced on 6 November 1981 and

registered on 21 April 1982.

 

9.      On 30 May 1983 a member of the Commission, acting as

Rapporteur, requested certain information from the respondent

Government in accordance with Rule 40 para. 2 (a) of the Commission's

Rules of Procedure.  The Government submitted the relevant information

on 25 July 1983 and the applicant submitted comments in reply on

20 September, 16, 22 and 24 November, 2, 3 and 12 December 1983, and

15 February 1984.

 

10.      On 14 March 1984 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to

present before 8 June 1984 their observations in writing on the

admissibility and merits of the application.

 

11.     The Government submitted their observations in German

on 15 June 1984.  An English translation was filed on 17 July 1984

and the applicant was then requested to reply before 30 September 1984.

At the applicant's request, this time-limit was subsequently extended

until 31 December 1984.  The applicant's observations dated

30 December 1984 were received on 3 January 1985.  They were

supplemented by a telex of 1 May 1985.

 

12.     On 8 May 1985 the Commission declared the application

admissible.  This decision was on 18 July 1985 communicated to

the parties who were invited to submit observations on the

merits, including replies to certain particular questions,

before 4 October 1985.

 

13.     The Government submitted their observations on 1 October 1985.

They suggested that certain disputed facts be clarified by a

fact-finding procedure in Austria.

 

14.     At the applicant's request the time-limit for the submission

of his observations was extended until 15 November 1985.  However, the

first copy of the applicant's observations dated 15 November 1985 was

apparently lost in the mail and on 3 March 1986 the applicant sent a

second copy of these observations.  On 15 April 1986, the applicant

submitted supplementary observations.

 

15.     On 10 May 1986 the Commission decided not to proceed to a

fact-finding procedure as suggested by the Government and instead

to invite the Government to reply to the applicant's submissions of

15 November 1985 and 15 April 1986.  The Government submitted their

reply on 15 July 1986.

 

16.     Further submissions were made by the applicant on

14 July 1986, 17 October 1986 and 26 January 1987 and, on his behalf,

by his earlier defence counsel, Dr.  Sch, on 15 July, 12 August and

27 November 1986.

 

17.     On 11 October 1986 and 7 March 1987, the Commission considered

the state of proceedings.  It rejected the applicant's request for an

oral hearing on the merits.

 

18.      After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement.  In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

 

 

C.      The present Report

 

19.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

 

             MM.  C. A. NØRGAARD, President

                  J. A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. VANDENBERGHE

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

 

20.     The text of this Report was adopted on 5 May 1988

and is now transmitted to the Committee of Ministers of the Council of

Europe, in accordance with Article 31 para. 2 of the Convention.

 

21.     The purpose of the Report, pursuant to Article 31 of the

Convention, is:

 

i)      to establish the facts, and

 

ii)     to state an opinion as to whether the facts found

        disclose a breach by the State concerned of its

        obligations under the Convention.

 

22.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

 

23.     The full text of the parties' submissions, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

 

II.   ESTABLISHMENT OF THE FACTS

 

 

A.      The particular circumstances of the case

 

24.     The applicant is a citizen of the United States, born in 1937

and now residing in Connecticut, U.S.A.  He entered Austria in the

summer of 1979.

 

25.     Being suspected of fraud and misappropriation, he was arrested

in Mödling (Lower Austria) on 4 October 1980 under a warrant issued by

the Innsbruck Regional Court (Landesgericht).  On the same day he was

taken to Vienna where, on 6 October 1980, the Vienna Regional Criminal

Court (Landesgericht für Strafsachen) ordered his detention on remand.

On 15 October 1980 he was transferred from Vienna to the Innsbruck

Regional Court Prison (landesgerichtliches Gefangenenhaus).

 

        1.  The pre-trial investigations

 

26.     The applicant was interrogated by police officers on

15 October 1980, 6 November 1980 and 16 December 1980.  During the

interrogation on 15 October 1980 interpretation was provided by a

prisoner who, however, had only a limited knowledge of English.  On 6

November 1980 a person acted as interpreter who is not a

court-certifed interpreter, but is regularly asked to interpret at

police investigations when no court-certified interpreter is

available.  It could not be established by the Commission whether the

person who provided interpretation during the interrogation on 16

December 1980 was a court-certified interpreter or not.  The applicant

received neither copies of the records of these interrogations nor

written translations thereof, nor were they interpreted for him.

 

27.     Court-certifed interpreters assisted during the pre-trial

investigations by several investigating judges on 17 October 1980,

27 October 1980, 28 November 1980 and 1 December 1980.  These

investigations were conducted in the way that the investigating judge

put a question or a series of questions to the applicant which were

interpreted into English.  Likewise, the applicant's answers were

interpreted into German.  The judge then had the typist record a

summary of the applicant's answers which he considered relevant.

These recitals made in German were not immediately interpreted and the

extent to which the recorded version was interpreted for the applicant

at the end of the hearing could not be established by the Commission.

On 27 October 1980 and 28 November 1980 the applicant refused to sign

the record.  On the first of these dates he stated that he considered

an oral translation insufficient, on the second date he declared that

he would be prepared to sign a written translation of the record.

 

28.     As the applicant was unable to find a defence counsel by

himself, a request was addressed to the Tyrol Bar Association which

appointed Dr.  K, who set out in writing the applicant's complaint

against his detention.  However, in a letter of 31 October 1980 the

applicant complained that Dr.  K did not speak English sufficiently

well.  Dr.  K requested to be relieved of his duties as counsel for the

same reason.

 

29.     In view of this situation the remand review hearing of

19 November 1980 was adjourned.  The Review Chamber (Ratskammer)

instructed the investigating judge, inter alia, to decide on the

motion to appoint another lawyer with sufficient command of English.

It was on this motion that Dr.  St, a lawyer who is also a registered

interpreter for the English language, was appointed as defence counsel

on 26 November 1980.

 

30.     Dr.  St visited the applicant for the first time on

3 December 1980 for at least 15 minutes.  On the same day he also

appeared for the applicant at the adjourned remand review hearing

before the Review Chamber.  Further, he lodged a complaint on the

applicant's behalf against the Review Chamber's decision to prolong

the detention on remand.  Subsequent visits by Dr.  St were made on

19 and 30 December 1980 and 21 January and 9 February 1981.  The

applicant states that he was taken from his cell for five or ten

minutes, and that Dr.  St, who, on all occasions, also visited other

prisoners, met the applicant for one minute or less.

 

31.     On 16 February 1981 the applicant was notified of the

indictment during a court session.  A court-certified interpreter was

present, but not the applicant's defence counsel.  The extent to which

the indictment was interpreted is in dispute between the parties.

The session lasted about an hour.  According to the Government this

suggests that the interpreter translated the essentials of the

indictment.  According to the applicant most of the time was consumed

awaiting the arrival of the applicant's defence counsel.  However, he

did not appear and was eventually contacted by telephone.  He informed

the applicant that he would not attend the session since this would do

no good and advised him not to raise any objection to the indictment.

 

32.     The minutes of this session show that the applicant requested

that the indictment also be served upon his defence counsel.

Furthermore, he objected to the indictment and motivated this

objection (Einspruch) by stating, inter alia, that he had already

written nine letters presenting the evidence requested.  Despite his

repeated requests he had never received any of the telephone invoices

he was accused of not having paid.  He had also demanded to be

confronted with incriminatory evidence but had never obtained this

evidence for review.  He also stated that the indictment was

defective and that therefore he requested its review.  Neither on

that occasion, nor later, was the applicant provided with a written

translation of the indictment.

 

33.     Upon return to his cell, the applicant wrote the following

letter to his defence counsel:

 

        "As you know I received the indictment today.

Perhaps you would be kind enough to explain to me why you

arranged to be telephoned instead of being present to give

me advice?  How in name can you advise

me before ever seeing that which you are to advise about?

The young doctor ?? told me I had to make up my mind

instantly concerning whether or not to appeal.  He typed

something out and when I made a correction by inking out an

obvious mistake, the ?? went . 'You

cannot alter what I write for you to sign, it is forbidden'.

I told him to do the then appropriate thing with the paper

and he ordered the interpreter ... to sign it.

 

         ...  I wish you to give me legal advice concerning

the indictment:

 

        1.  Are there grounds for appeal?

 

        2.  What are the grounds available to appeal

            against an indictment?

 

        3.  Can I call witnesses on my behalf and compel

            them to attend the trial?

 

        4.  Will you assist me in a legal manner?

 

        It certainly appears as though you believe the

decision on my guilt is pre-ordained otherwise you would

not advise others that I will be found guilty without ever

seeing the evidence, discussing it with me or ever seeing

the indictment.  Of course, you have advised me I would be

freed on the same basis ..."

 

34.     Four days later, on 20 February 1981, Dr.  St came to visit

the applicant in prison, informing him that he would withdraw the

objection to the indictment.  This he did by a letter of the same day.

 

35.     Dr.  St next went to see the applicant in prison on

16 March 1981.  The applicant was absent from his cell for one

hour.  Dr.  St also visited the applicant on 27 March 1981 when the

applicant was absent from his cell for 30 minutes and on 1 April 1981

(20 minutes absent from his cell) as well as on 20 May 1981 and on

2 July 1981.

 

36.     On 16, 19, 23 (or 24) and 30 March 1981 the applicant wrote

letters to the judge presiding over the Chamber of the Regional Court

competent to hear his case.  In his letter of 16 March 1981 the

applicant expressed fears concerning his personal security during the

trial.  The contents of this letter were also explained to the

presiding judge, Dr.  B, by the prison legal officer, Dr.  P, on the

telephone.  In view of these fears a detective officer in plain

clothes was eventually asked to attend the trial.

 

37.     The applicant's letters of  19, 23 (or 24) and 30 March 1981

to the presiding judge, which were carried by hand from the Regional

Court Prison to the Regional Court in the usual way, are now missing

from the court file, and not indexed there.  The Government are unable

to give an explanation therefor.  Moreover, the prison's legal

officer, Dr.  P, confirmed that according to the prison records

another letter, addressed to the Public Prosecutor, Dr.  F, was

transmitted like any other on 30 March 1981.  However, according to

two statements by the Innsbruck Public Prosecutor's Office "a letter

of [K] dated 30 March 1981" was never received.  On the other hand,

the court file does contain two sealed envelopes addressed to Dr.  G,

one of the investigating judges.  These two letters are indexed under

unit No. 100 with the entry: "Day of receipt 16/2 - Contents - letters

of accused - Page 275".

 

38.     Due to the disappearance of the letters of 19, 23 (or 24)

and 30 March 1981 from a file under the control of the Government

the Commission is unable to establish their contents with certainty.

However, it notes the following - undisputed - facts:

 

39.     In a subsequent letter of 25 March 1981 to the prison legal

officer Dr.  P, the applicant complained of not having received a

reply to any letters addressed to the presiding judge in the following

terms:

 

"Dr.  P,

 

        May I please have an answer to my last note??

There is only 5 working days until the trial which is

scheduled on the 2nd of April.  I have not had an answer to

any requests sent to Dr.  B<...>.  Does he ignore me because

I write only in English?  Does he also ignore the Austrian

Law in the same way as the U-richter?  I have not yet

seen the evidence irrespective of the fact I have an

assigned Lawyer.  Having a lawyer that does nothing does not

satisfy Justice.

 

        You people must be crazy to think you can carry on a

system of Justice in such an oppressive manner.

 

        What do I have to do after six months to get the

consideration I deserve?  Must I hurt myself?  Certainly

you understand what is going on and you can easily telephone

Dr.  B<...> and inquire.

 

        I will not write you or Dr.  B<...> again.  If I

do not have a satisfactory reply in accord with Austrian Law

and the European Human Rights Convention, Article 6 by the

end of the day of March 26, Thursday, I shall take drastic

steps!  I have had enough of this charade."

 

40.     On 1 April 1981 the applicant was visited by two officers of

the United States Embassy in Vienna.  According to a memorandum

subsequently drawn up by one of them for the files of the Embassy the

applicant "complained that his public defender, Dr.  St, had not

discussed his defense with him yet and that he had had no chance to

review the court file himself.  (Dr.  St had told me over the phone

several days ago that he had spent a total of three hours discussing

the defense with Mr.  K and that he would see him again shortly before

the trial)".

 

41.     On 18 May 1981 the applicant wrote a letter to the presiding

judge in which he summarised the contents of his letters of 16, 19

and 30 March 1981 and complained about not having received any

response.  This letter together with a German translation was

forwarded to the presiding judge on 26 May 1981.  There, the applicant

stated the "important elements" of his previous letters as follows:

 

"... 2.  On the 19th of March, I wrote you a letter to

request an inspection of the Court records (Akteneinsicht)

and informed you therein that I had little knowledge of any

of the alleged evidence, documentary or testimonial.  I

specifically asked you to discharge Dr.  St[...] if his

representation of me was to be a basis of denying me direct

access to the evidence.  I stated that it was more important

for me to know of the basis of the allegations (so as to

prepare a defence) than to be represented by a lawyer.  I

presume that you did not give me access to the evidence

requested nor did you discharge Dr.  St[...] because you did

not understand my letter.  (To this date, I do not have

knowledge of the majority of the evidence).

 

3.  On the 19th of March I also requested permission to

present documentary evidence in English, which request I

presume was never answered because it was not understood.

 

4.  On the 30th of March I wrote to inform you that my

appointed lawyer, Dr.  St[...] had still not prepared me for

the Trial on the 2nd of April nor given me access or

knowledge of the prosecution evidence.  (The situation

remained the same as reported in my letter of the 19th of

March except that at 4:15 in the afternoon of April 1st,

Dr.  St[...] came to inform me that no further preparation was

necessary since "nothing" would happen to me on April 2nd).

 

5.  On the 4th of May I wrote to inform you of some of the

grounds of the Nichtigkeitsbeschwerde as well as the grounds

for appointment of a new lawyer to replace Dr.  St[...]

Included within my 4th of May letter was a letter to

Dr.  Ernst Mayr, President of the Rechtsanwaltskammer, which

letter I left unsealed, and invited your inspection of the

grounds for replacement of Dr.  St[...].  I also informed you

that I had no idea of the terms of the judgment as the

translator only stated that I was guilty and sentenced to 18

months.  (To this date, I still have no further information,

in spite of STPO §260 etc.)"

 

42.     In view of these facts the Commission is led to the

conclusion that the applicant's letters of 19, 23 (or 24) and

30 March 1981, which cannot be traced, were not repetitive - as

contended by the Government - but criticised the pre-trial procedure

and expressed concern about the applicant's defence at the trial.

 

        2.  The trial

 

43.     The trial before the Innsbruck Regional Court took place on

2 April 1981.  It was attended by two officers of the U.S. Embassy in

Vienna as observers.  The applicant claims that at the beginning his

defence counsel, Dr.  St, assured him that the presiding judge fully

understood English but that he was prevented by law from answering in

English.  This statement was confirmed by the U.S. Consular observers

(letter from the U.S. Embassy of 1 July 1981, submitted by the

applicant).  The applicant's further allegation that in fact the

presiding judge did not understand English is contested by the

Government.

 

44.     During the trial, there was apparently a dispute between the

applicant and his defence counsel, Dr.  St, as to whether requests

should be made for the hearing of further witnesses including a lawyer

whom the applicant suspected of double-representation.  Dr.  St,

considering this suspicion as an attack against the reputation of

Austrian lawyers in general, thereupon asked the Court to be

discharged from his functions as the applicant's defence counsel.

However, the Court rejected this request.  Dr.  St accordingly

continued to represent the applicant until the end of the trial.

 

45.     A court-certified interpreter was present who was sitting next

to the applicant's defence counsel to the left of the judges' bench,

while the applicant was sitting at a distance of about 6 to 7 metres

from his defence counsel facing the bench.  The records of the trial

state that an interpreter was present but do not indicate which of the

statements made during the trial were interpreted or the extent to

which this was done.

 

46.     According to the applicant the indictment read out at the

beginning of the trial was not interpreted but, according to the above

letter of 1 July 1981 from the U.S. Embassy the applicant, when asked,

stated that he understood the charges, and according to another letter

of 22 October 1981 from the U.S. Embassy, also submitted by the

applicant, he and his defence counsel waived interpretation of the

indictment.  According to the findings of the Supreme Court (see

para. 57 below) all essential parts of the indictment were interpreted.

 

47.     The applicant further states that questions put to witnesses

were not interpreted, and their testimony was not fully interpreted.

The statements of three witnesses allegedly were not interpreted at

all, and those of two further witnesses only summarily.  Furthermore,

the statement of one witness was allegedly read out without being

translated.  According to the Supreme Court's findings, on which the

Government rely, all essential parts of the testimonies of witnesses

and of the contents of documents read out at the trial were

interpreted (cf. para. 57 below).

 

48.     Lastly, the extent to which the judgment delivered at the end

of the trial and the summary of its reasons were interpreted into English

is also in dispute between the parties (cf. paras. 57, 99 and 123 below).

The above letter from the U.S. Embassy of 22 October 1981 confirms that,

as far as the consular observers could remember, only the verdict and

the sentence, but not the reasons were interpreted into English.

 

49.     The applicant was found guilty of aggravated fraud and

misappropriation and sentenced to 18 months' imprisonment.  He was

also ordered to pay 80,890 AS to two private parties (Privatbeteiligte)

who had appeared as witnesses for the prosecution and who had claimed

compensation.  The written judgment was served upon his defence counsel,

Dr.  St, on 19 May 1981.  On 20 May 1981, Dr.  St visited the applicant

in prison, but expressly refused to translate the whole text of the

judgment for him.  The applicant received a copy thereof (in German) on

27 May 1981 but was not provided with a written translation of the

judgment.

 

        3.  The appeal and nullity proceedings

 

50.     Subsequent to the trial, on 6 April 1981, the applicant wrote

a letter to the prison legal officer, Dr.  P, asking him to convey to

the presiding judge his request to have a new defence counsel

appointed, as he did "not get along with Dr.  St", and also asking for

advice what to do in order to obtain a new lawyer.  This letter was

forwarded to the competent Department of the Regional Court on 7 April

1981 where it was received the next day.  The applicant also wrote to

Dr.  St informing him that he had asked for the appointment of another

defence counsel.

 

51.     On 20 May 1981 the applicant was once more visited in prison

by Dr.  St.  At the applicant's request this meeting was also

attended by Dr.  P.  The applicant reiterated his request to have

another defence counsel appointed.

 

52.     By letter of  21 May 1981 Dr.  St requested the Tyrol Bar

Association to be discharged of his duties as defence counsel.  On

22 May 1981 the Bar Association appointed Dr.  Sch as new defence counsel

for the applicant.  Dr.  Sch was notified thereof on 26 May 1981.  On

29 May 1981, Dr.  B, a partner of Dr.  St, came to see Dr.  Sch in his

office, and gave him a draft appeal (Berufung) and plea of nullity

(Nichtigkeitsbeschwerde) prepared by Dr.  St (consisting of three pages)

and also some copies from the court file.  On Monday, 1 June 1981,

Dr.  Sch visited the applicant in prison and was given his draft

appeal.  The statement setting out the reasons of the plea of nullity

and of the appeal was then drawn up and filed on 2 June 1981, the day

on which the delay for filing it expired.

 

53.     The plea of nullity was essentially based on the following

grounds:

 

        a.  That the applicant was not adequately represented

           by counsel during the proceedings and in particular

           during the trial.

 

        b.  That the interpretation during the trial was

           insufficient and in particular that neither the

           indictment nor the testimony of certain witnesses

           nor the questions put to witnesses by the judge

           or the Public Prosecutor were interpreted into

           English.

 

        c.  That save for its operative part the judgment was

           not interpreted or translated.

 

54.     With regard to the factual allegations concerning the scope of

interpretation during the trial, the Supreme Court (Oberster Gerichtshof)

proceeded to an enquiry in accordance with Section 285 f of the Code

of Criminal Procedure (para. 81 below).  The presiding judge of the

Innsbruck Regional Court was questioned by the Rapporteur of the

Supreme Court over the telephone.  A note on this conversation was

taken which reads as follows (English translation provided by the

Government):

 

        "The presiding judge, Regional Court Justice Dr.  B,

replied as follows to an enquiry by telephone:

 

        Contrary to the allegations made in the plea of

nullity, all essential points of the indictment, of the

witnesses' depositions, of the contents of the documents

read out in court as well as of the judgment, including its

reasoning, were translated by the interpreter who had been

summoned and by counsel for the defence, Barrister Dr.  St

(who is a qualified English interpreter), at the trial which

was attended by two members of the U.S. Embassy.  The

defendant was also permitted to comment on the charges and

on each piece of evidence without any time limit as well as

to put questions to the witnesses."

 

55.     On 1 September 1981, after having obtained the view of the

Attorney General (Generalprokurator), the Supreme Court, sitting in

chambers (cf. paras. 79-80 below), rejected the plea of nullity,

essentially on the following grounds:

 

56.     Regarding the complaint that the applicant was not adequately

represented by counsel during the trial, the Supreme Court found that

the Regional Court was only under a duty to appoint a defence counsel

and to call him in for the trial.  It was not, however, for the Court

to supervise his activities and, accordingly, no ground for nullity

could be deduced from any insufficient performance of his duties.

 

57.     With respect to the interpretation during the trial, the

Supreme Court observed that the Regional Court had not only appointed

an interpreter to assist during the trial but that it had also

appointed, at the applicant's request, a defence counsel who was at

the same time an English interpreter and with whom the applicant could

communicate in his mother tongue.  Moreover, neither an incomplete

translation nor a failure to appoint an interpreter did as such

constitute a ground for nullity.  They could at best be challenged if

a corresponding request had been denied at the trial.  Moreover, the

enquiry made by the Supreme Court pursuant to Section 285 f of the

Code of Criminal Procedure had shown that, contrary to the allegations

in the applicant's plea of nullity, all essential parts of the

indictment, of the testimonies of witnesses, of the contents of

documents read out during the trial, and also of the judgment

including its reasons, had been interpreted by the court-appointed

interpreter.  Furthermore, the applicant had had the opportunity to

comment on the charges and the evidence without any time restriction

and also to put questions to witnesses.

 

58.     The applicant's appeal against sentence and against the order

to pay compensation was decided after a public hearing of which the

applicant had been informed according to Section 286 para. 2 of the

Code of Criminal Procedure (para. 84 below).  The applicant requested

to be brought before the Supreme Court, submitting, inter alia, that

the determination of the sentence necessitated an assessment of his

personality and that this required his presence.  Moreover, the file

before the Supreme Court included articles from the daily newspaper

"Kurier" which were prejudicial to him and might adversely influence

the Supreme Court.  Lastly, as his appeal concerned also the civil law

aspects of the judgment, it would be unfair if the private parties to

whom he had to pay compensation would appear before the Supreme Court

but not the applicant.  This request was rejected by an order of the

Supreme Court of 20 November 1981.

 

59.      The applicant's appeal was dismissed by the Supreme Court on

24 November 1981 after a hearing at which the applicant was

represented by defence counsel.  The Supreme Court considered that the

sentence imposed by the Regional Court was adequate and that the

relative weight of mitigating and aggravating circumstances had been

correctly assessed.  The adjudication of compensation to two private

parties had been in accordance with the law and therefore there was no

reason to refer the decision on this issue to the civil courts as

requested by the applicant.  The judgment also lists those present at

the appeal hearing and there is no indication that the private parties

whose compensation claims the Regional Court had upheld were present

or represented at that hearing.

 

60.     The applicant was released from prison on 16 December 1981 and

subsequently detained with a view to his deportation to the United

States of America.  He was eventually deported in January 1982.

 

 

B.      The relevant domestic law

 

        1.  Interpretation

 

61.    Section 100 of the Austrian Code of Criminal Procedure

(Strafprozessordnung) provides as follows:

 

(German)

 

        "Schriften, die in einer nicht gerichtsüblichen

Sprache geschrieben und für die Untersuchung erheblich

sind, hat der Untersuchungsrichter durch einen beeidigten

Dolmetsch übersetzen zu lassen und samt der Übersetzung

zu den Akten zu bringen."

 

(English translation)

 

        "The investigating judge shall have translated by a

certified interpreter any documents drawn up in a language

other than the one used in court if they are relevant to the

investigation; such documents shall be included in the file

together with the translation."

 

62.     Section 163 of the Code provides:

 

(German)

 

        "Ist ein Zeuge der Gerichtssprache nicht kundig,

so ist ein Dolmetsch zuzuziehen, wenn nicht sowohl der

Untersuchungsrichter als auch der Schriftführer der fremden

Sprache mächtig sind.  In dieser Sprache ist die Aussage des

Zeugen nur dann im Protokoll oder in einer Beilage

aufzuzeichnen, wenn es notwendig ist, den Vernommenen unter

Beibehaltung seiner eigenen Ausdrücke redend anzuführen

(§104 Abs. 3)."

 

(English translation)

 

        "Where a witness does not understand or speak the

language used in court, an interpreter shall be called in

unless both the investigating judge and the clerk of the

court have a command of the foreign language.  In the

official record of the hearing or an annex thereto the

depositions of the witness shall be recorded in that

language only where it is necessary to quote the expressions

used by the interrogated person in direct speech (Section 104

para. 3)."

 

63.     Under the provision referred to, such a necessity exists if

the expressions used are important for judging the matter or if it is

to be expected that the official record will be read out at the trial.

 

64.     By virtue of Section 198 para. 3 of the Code Section 163 also

applies, mutatis mutandis, to interrogations of a person charged with

an offence (Beschuldigter) if that person does not understand or speak

the language used in court.

 

65.     It follows from the context of the above provisions that

they are applicable to the pre-trial investigations conducted by

the investigating judge (Voruntersuchung).  However, according to

Section 248 para. 1 of the Code, the rules to be observed by the

investigating judge shall also be applied by the presiding judge

when examining witnesses or experts at the trial.  There is no express

provision concerning the rules applicable to the examination of the

accused at the trial if he does not understand or speak the language

used in court, but it appears that in practice the rules governing the

examination of witnesses are applied by analogy.

 

66.     The qualifications of court-certified interpreters (allgemein

beeidete gerichtliche Dolmetscher) are specified in the Experts and

Interpreters Act 1975 (Bundesgesetz über den allgemein beeideten

gerichtlichen Sachverständigen und Dolmetscher, Federal Law Gazette

No. 137/1975).  According to Section 14 of this Act, the provisions

applying to experts and requiring, inter alia, experience (Sachkunde)

and trustworthiness (Vertrauenswürdigkeit) (cf.  Section 2 para. 2 (a)

and (e)) are also applicable to interpreters.  The requirements of

previous professional activity in the relevant field over a certain

period of time and of Austrian nationality (Section 2 para. 2 (b) and

(f)), however, do not apply.  According to Section 13 no distinction

is made between court-certified interpreters and translators.

 

        2.  Official defence counsel

 

67.     Section 39 para. 1 of the Code of Criminal Procedure provides

that in all criminal cases the accused has the right to have a

defence counsel (Verteidiger) whom he may choose among the persons

included in a list kept by the Court of Appeal.  According to para. 3

these persons include practising barristers (Rechtsanwälte) and

certain other lawyers.  According to a Supreme Court decision (EvBl

1953/335) they must be Austrians.

 

68.     Under certain conditions an official defence counsel

(beigegebener Verteidiger) must be appointed for the accused.  He

may either be a legal aid defence counsel to be paid by the State

(Section 41 para. 2) or an ex officio counsel to be appointed in cases

of necessary representation at the expense of the accused (Section 41

para. 3).  The procedure to be followed is set out in Section 42 para. 1

of the Code.

 

69.     Section 41 reads as follows:

 

(German)

 

        "(1)  ...

 

         (2)  Ist der Beschuldigte (Angeklagte) ausser-

stande, ... die Kosten der Verteidigung zu tragen, so hat

das Gericht auf Antrag des Beschuldigten (Angeklagten) zu

beschliessen, dass diesem ein Verteidiger beigegeben wird,

dessen Kosten der Beschuldigte (Angeklagte) nicht zu tragen

hat, wenn und soweit dies im Interesse der Rechtspflege, vor

allem im Interesse einer zweckentsprechenden Verteidigung,

erforderlich ist.  In diesem Sinn ist besonders die

Beigebung eines Verteidigers zur Ausführung angemeldeter

Rechtsmittel, zur Erhebung des Einspruches gegen die

Anklageschrift, für die Hauptverhandlung sowie für den

Gerichtstag zur öffentlichen Verhandlung über ein

Rechtsmittel erforderlich.  Wird für die Hauptverhandlung

oder zur Ausführung einer Nichtigkeitsbeschwerde oder

Berufung ein solcher Verteidiger beigegeben, so gilt dessen

Bestellung auch für das Rechtsmittelverfahren.

 

         (3)  Wählt für die Hauptverhandlung vor dem

Geschworenen- oder Schöffengericht weder der Angeklagte

selbst noch sein gesetzlicher Vertreter für ihn einen

Verteidiger und wird ihm auch kein Verteidiger nach Abs. 2

beigegeben, so ist ihm von Amts wegen ein Verteidiger bei-

zugeben, dessen Kosten der Angeklagte zu tragen hat, es

sei denn, dass die Voraussetzungen für die Beigebung eines

Verteidigers nach Abs. 2 vorliegen.  Abs. 2 letzter Satz

gilt entsprechend."

 

(English translation)

 

        "(1)  ...

 

         (2)  If the person charged with a criminal

offence (the accused) is unable ... to bear the costs

of defence, the Court shall at [his] request decide

that he will be given a defence counsel whose costs [he]

will not have to bear if and insofar as this is necessary in

the interests of justice, in particular the interest of an

appropriate defence.  In this sense it is, in particular,

necessary to appoint a defence counsel for the purpose of

formulating intended remedies, of raising objections against

the indictment, and for the trial or a public hearing on a

remedy.  If the defence counsel is being appointed for the

trial or for formulating a plea of nullity or appeal, the

appointment will also be valid for the appeal proceedings.

 

         (3)  If, in the case of a trial before an assize

court or a court with lay assessors, the accused or his

legal representative have not chosen a defence counsel, and

if no defence counsel has been appointed under para. 2

above, it shall be decided to appoint a defence counsel ex

officio whose fees will have to be borne by the accused

unless the conditions for appointing a defence counsel under

para. 2 above are met.  In such cases the last sentence of

para. 2 will also be applicable."

 

70.     Section 42 para. 2 reads as follows:

 

(German)

 

        "Hat das Gericht die Beigebung eines Verteidigers

beschlossen, so hat es den Ausschuss der nach dem

Sitz des Gerichtes zuständigen Rechtsanwaltskammer zu

benachrichtigen, damit der Ausschuss einen Rechtsanwalt

zum Verteidiger bestelle."

 

(English translation)

 

        "If the court has decided that an official

defence counsel shall be appointed, it shall notify the

Board of the Bar Association competent in view of the

court's local circumscription so that this Committee may

appoint a particular barrister as defence counsel."

 

71.     As regards the replacement of a defence counsel in the course

of the proceedings, Section 44 para. 2 of the Code provides the

following:

 

(German)

 

        "Der Beschuldigte kann die Verteidigung von dem durch

ihn selbst gewählten Verteidiger jederzeit auf einen anderen

übertragen.  Auch der Auftrag des von Amts wegen bestellten

Verteidigers erlischt, sobald der Beschuldigte einen anderen

Verteidiger bestellt.  Doch darf in solchen Fällen durch den

Wechsel in der Person des Verteidigers das Verfahren nicht

aufgehalten werden."

 

(English translation)

 

        "The person charged with a criminal offence may at

any time transfer the mandate of a freely chosen defence

counsel to another defence counsel.  Likewise, the mandate

of an officially appointed defence counsel shall be

terminated as soon as the person charged designates another

defence counsel.  However, in such cases the change in the

person of the defence counsel must not lead to any delay in

the proceedings."

 

72.     The Barristers Act (Rechtsanwaltsordnung, Imp.  Law Gazette

No. 96/1868 as amended) now provides that, in certain cases including

conflict of interest or bias, the officially appointed defence counsel

shall be replaced by another defence counsel (Section 45 para. 4 in

the version of Federal Law Gazette No. 383/1983).  This provision did

not exist at the relevant time.  However, in practice an officially

appointed defence counsel could be replaced by the Board of the Bar

Association if this seemed appropriate.

 

73.     There is no provision requiring the appointment of a defence

counsel with a knowledge of the language of the accused, if the

accused does not understand or speak the language used in court, nor

is there any provision requiring the defence counsel to perform

specific translation and interpretation work in such cases.

 

74.     Under Section 9 para. 1 of the Barristers Act any barrister is

obliged to perform his mandate in accordance with the law and to

defend the rights of the party he is representing in good faith and

carefully ("mit Eifer, Treue und Gewissenhaftigkeit").  Under Section 11

para. 1, he is obliged to carry out his mandate as long as it has not

been terminated and he is responsible for failure to do so.  However,

under the constant case-law (EvBl. 1969/353) he is not subject to

control by the court as to whether he has performed his tasks

correctly and reasonably ("richtig und zweckmässig").

 

75.     Lack of representation by a defence counsel throughout the

trial constitutes a ground of nullity in cases where such

representation is a legal requirement (Section 281 para. 1, No. 1a

of the Code of Criminal Procedure).  Other shortcomings of legal

assistance by an official defence counsel cannot be raised in nullity

proceedings.

 

        3.  Inspection of court files

 

76.     Inspection of the court files by the defendant or by his

defence counsel is governed by Section 45 para. 2 of the Code of

Criminal Procedure which provides:

 

(German)

 

        "Der Untersuchungsrichter hat dem Verteidiger auf

Verlangen zu gestatten, in den Amtsräumen des Gerichtes in

die Strafakten, mit Ausnahme der Beratungsprotokolle,

Einsicht zu nehmen und von ihnen Abschriften herzustellen;

der Untersuchungsrichter kann dem Verteidiger statt dessen

auch Ablichtungen ausfolgen.  Ist der Beschuldigte nicht

durch einen Verteidiger vertreten, so stehen diese Rechte

des Verteidigers ihm selbst zu, wobei die Akteneinsicht

einem in Haft befindlichen Beschuldigten auch in den

Amtsräumen des Gefangenenhauses oder der Strafvollzugsanstalt

gewährt werden kann.  Bis zur Mitteilung der Anklageschrift

kann der Untersuchungsrichter einzelne Aktenstücke von der

Einsicht- und Abschriftnahme durch Verteidiger oder

Beschuldigten ausnehmen, wenn besondere Umstände die

Befürchtung rechtfertigen, dass durch eine sofortige

Kenntnisnahme von diesen Aktenstücken die Untersuchung

erschwert werden könnte.  Dem Beschuldigten oder seinem

Verteidiger sind auf Verlangen unentgeltliche Abschriften

(Ablichtungen) der Augenscheinprotokolle, der Befunde und

Gutachten von Sachverständigen, Behörden, Ämtern und

Anstalten sowie der Originalurkunden, die Gegenstand der

strafbaren Handlung sind, zu übergeben.  Dem Verteidiger ist

auf sein Verlangen auch eine Ausfertigung des Haftbefehles

samt Gründen sowie aller gerichtlichen Entscheidungen

auszufolgen, gegen die der Beschuldigte ein Rechtsmittel

angemeldet hat."

 

(English translation)

 

        "The investigating judge shall permit counsel for the

defence on request to inspect the prosecution files, except

the records on deliberations, on the premises of the court and

to make copies thereof;  instead, the investigating judge may

also deliver photocopies to counsel.  Where the defendant is not

represented by counsel, he himself is entitled to these rights

of defence counsel, and a defendant who is in detention may

be permitted to inspect the files on the premises of the

detention centre or prison.  Until the indictment is

communicated, the investigating judge may except certain

components of the files from inspection and copying by defence

counsel or defendant, if special circumstances justify the

apprehension that the investigations may be rendered more

difficult by their being immediately acquainted with these

components of the files.  Copies (or photocopies) of records

of judicial inspection, of findings and opinions of experts,

public authorities, departments and institutions as well as of

original documents forming the subject of the offence shall be

delivered to the defendant or his counsel on request free of

charge.  A copy of the arrest warrant, including its reasons,

as well as of all court decisions from which defendant has

appealed shall also be delivered to counsel on request."

 

        4.  Keeping of records

 

77.     Section 271 of the Code of Criminal Procedure provides for the

keeping of records of the trial:

 

(German)

 

        "(1)  Über die Hauptverhandlung ist bei sonstiger

Nichtigkeit ein vom Vorsitzenden und vom Schriftführer zu

unterschreibendes Protokoll aufzunehmen.  Es soll die Namen der

anwesenden Mitglieder des Gerichthofes, der Parteien und ihrer

Vertreter enthalten, alle wesentlichen Förmlichkeiten des

Verfahrens beurkunden, insbesondere anführen, welche Zeugen und

Sachverständigen beeidigt wurden und aus welchen Gründen die

Beeidigung erfolgte, endlich alle Anträge der Parteien und

die vom Vorsitzenden oder vom Gerichte darüber getroffenen

Entscheidungen vermerken.  Den Parteien steht es frei, die

Feststellung einzelner Punkte im Protokoll zur Wahrung ihrer

Rechte zu verlangen.

 

        (2)  Der Vorsitzende hat, wo es auf Feststellung der wörtli-

chen Fassung ankommt, auf Verlangen einer Partei sofort die

Verlesung einzelner Stellen anzuordnen.

 

        (3)  Der Antworten des Angeklagten und der Aussagen der

Zeugen oder Sachverständigen geschieht nur dann eine Erwähnung,

wenn sie Abweichungen, Veränderungen oder Zusätze der in den

Akten niedergelegten Angaben enthalten oder wenn die Zeugen oder

Sachverständigen in der öffentlichen Sitzung das erstemal

vernommen werden.

 

        (4)  Wenn der Vorsitzende oder der Gerichtshof es

angemessene findet, kann er die stenographische Aufzeichnung

aller Aussagen und Vorträge anordnen;  auf rechtzeitiges

Verlangen einer Partei und gegen vorläufigen Erlag der Kosten

ist sie stets zu verfügen.  Die stenographischen Aufzeichnungen

sind jedoch binnen achtundvierzig Stunden in gewöhnliche Schrift

zu übertragen, dem Vorsitzenden oder einem von ihm hiemit

betrauten Richter zur Prüfung vorzulegen und dem Protokoll

beizuschliessen.

 

        (5)  Es steht übrigens den Parteien frei, in das

abgeschlossene Protokoll und dessen Beilagen Einsicht und

von ihnen Abschrift zu nehmen."

 

(English translation)

 

        "(1)  On pain of nullity a record shall be kept of the

trial which shall be signed by the president and by the record

keeper.  It should contain the names of the members of the

court present, of the parties and of their representatives,

document all essential formalities of the proceedings, in

particular set out what witnesses and experts were heard and

which parts of the files were read out, whether the witnesses

and experts were sworn and for what reason they were sworn,

and finally all motions submitted by the parties and the

decisions taken by the president or the court thereon.  The

parties are free to demand the setting down of specific points

in the record in order to preserve their rights.

 

        (2)  Where the establishment of a literal version is

important, the president shall at the demand of a party order

individual passages to be read out at once.

 

        (3)  The answers of the defendant and the depositions of the

witnesses or experts shall only be mentioned if they contain

deviations from, alterations of or additions to the statements

set down in the files or if the witnesses or experts are heard

for the first time at the public session.

 

        (4)  If the president or court think fit, they can order

all depositions and pleadings to be taken down in shorthand; this

shall always be ordered where a party demands it in good time

and deposits the costs in advance.  The shorthand notes shall,

however, be transcribed into ordinary writing within 48 hours,

shall be submitted for examination to the president or a judge

entrusted by him therewith, and shall be attached to the record.

 

        (5)  The parties are free to inspect the finished record

and its enclosures, and to make copies thereof."

 

        5.  Nullity proceedings before the Supreme Court

 

78.     The proceedings concerning a plea of nullity before the Supreme

Court are regulated by Sections 280 et seq. of the Code of Criminal

Procedure.  A plea of nullity can only be based on the specific

grounds enumerated in Section 281 para. 1.  They include, inter alia,

the following ground in sub-paragraph 4 of this provision:

 

(German)

        "Die Nichtigkeitsbeschwerde kann ... ergriffen werden ...

wegen eines der folgenden Nichtigkeitsgründe:

 

        4.      wenn während der Hauptverhandlung über einen

Antrag des Beschwerdeführers nicht erkannt worden ist oder wenn

durch ein gegen seinen Antrag oder Widerspruch gefälltes

Zwischenerkenntnis Gesetze oder Grundsätze des Verfahrens

hintangesetzt oder unrichtig angewendet worden sind, deren

Beobachtung durch das Wesen eines die Strafverfolgung und

die Verteidigung sichernden Verfahrens geboten ist;"

 

(English translation)

 

        "A plea of nullity may ... be lodged ... on one of the

following grounds:

 

        4.      if no decision has been taken at the trial on

a request of the accused or if an interim decision rejecting

a request or objection of the accused has been taken in a

manner which disregarded or wrongly applied legal

provisions or procedural principles whose observance is

necessary for securing a procedure in conformity with

essential requirements of the prosecution and of the

defence".

 

79.     According to Section 285 (c) of the Code of Criminal

Procedure, the Supreme Court after having obtained the view of the

Attorney General, shall deliberate in Chambers, if the Attorney

General or the judge acting as Rapporteur has proposed the application

of, inter alia, Sections 285 (d) or 285 (f) of the Code.

 

80.     Section 285 (d) provides for, inter alia, rejection of a plea

of nullity by a decision in Chambers, if the Supreme Court unanimously

considers that complaints based on sub-paragraphs 1-8 of Section 281

para. 1 are manifestly ill-founded.

 

81.     Section 285 (f) provides for additional enquiries on the part

of the Supreme Court in Chambers into certain alleged procedural

defects.  The provision reads as follows:

 

(German)

 

        "Bei der nichtöffentlichen Beratung kann ferner die Einholung

tatsächlicher Aufklärungen über behauptete Formverletzungen (§ 281

Abs. 1 Z. 1 bis 4) angeordnet werden."

 

(English translation)

 

        "The Court, when deliberating in Chambers, may also order

that enquiries be made as to facts relating to alleged procedural

defects(Section 281 para.1 sub-paragraphs 1-4)."

 

        6.  Appeal proceedings before the Supreme Court

 

82.     The Supreme Court proceedings concerning an appeal against the

sentence are governed by Section 294 et seq. of the Code of Criminal

Procedure and are in principle public (cf.  Section 295, paras. 4 and 5).

 

 

83.     The defendant's presence at the public hearing of his appeal

is governed by Section 296 para. 3, second sentence of the Code of

Criminal Procedure.  At the time when the present applicant's appeal

was heard by the Supreme Court, it provided:

 

(German)

        "Für die Anberaumung und Durchführung des

Gerichtstages gelten die Bestimmungen der §§ 286 und 287

dem Sinne nach mit der Massgabe, dass stets auch der nicht

verhaftete Angeklagte vorzuladen ist und die Vorführung des

verhafteten Angeklagten veranlasst werden kann."

 

(English translation):

 

        "As regards the fixing of a day for the public

hearing and the procedure, Sections 286 and 287 are

applicable mutatis mutandis, provided that the defendant

not in custody shall always be summoned and that the

defendant in custody may be caused to be brought before

the court."

 

84.     Section 286, to which Section 296 para. 3 refers, stipulates

inter alia (para. 2) that the defendant in custody shall be informed

of the date of the hearing and that it shall be pointed out to him

that only his defence counsel may be present.  Section 287 provides

inter alia (para. 3) that, if present, the accused may address the

Supreme Court, in particular by making the final submissions.

 

85.     Subsequently, Section 296 para. 3 was amended as a result of

the friendly settlement in the Peschke case (No. 8289/78, Comm.  Report

13.10.81, D.R. 25 p. 182;  cf.  Federal Law Gazette No. 168/1983).

The second sentence now provides 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 presence appears to be necessary in the

interests of the proper administration of justice or 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

erscheint").

 

86.     As regards the presence of private parties, Section 296

para. 3, last sentence provides the following:

 

(German)

 

        "Ist die Berufung gegen den Ausspruch über die

privatrechtlichen Ansprüche gerichtet, so ist auch der

Privatbeteiligte vorzuladen."

 

(English translation)

 

        "If the appeal is directed against the adjudication of

civil claims, the private party concerned shall also be summoned."

 

 

 

 

III.  SUBMISSIONS OF THE PARTIES

 

A.      The applicant

 

87.     The applicant submits that in the criminal proceedings against

him he did not enjoy the guarantees provided for in Article 6 of the

Convention, securing a fair trial and ensuring certain minimum

rights.  Due to his inability to speak or understand German he was

also discriminated against contrary to Article 14 of the Convention

taken together with Article 6.  He further complains under Article 13

that he lacked an effective remedy against these violations.

 

88.     The applicant contends that during the pre-trial investigation

there was no adequate interpretation.  During the police interrogations

no court-certified interpreters were available.  While court-certified

interpreters provided interpretation during the interrogations by the

different investigating judges, the scope of this interpretation was

insufficient.  When the investigating judge instructed the typist to

record a summary of the applicant's statement, this recitation made in

German was not interpreted.  Therefore, the applicant did not have the

opportunity to object if he considered the summary not to reflect his

statement correctly, as a German-speaking accused could have done.

 

89.     Rejecting an earlier suggestion by the Government that he had

refused an oral interpretation of the records of these interrogations,

in particular of the most detailed one on 27 October 1980, while

insisting on written translations, the applicant submits that he

consistently requested written translations as oral interpretation

was not sufficient.  But he was induced to waive oral interpretation

with the promise by one of the investigating judges that a written

translation would be provided.  Such a translation was, however,

never forwarded.

 

90.     The applicant submits, in particular, that he was not informed

in detail of the nature and cause of the accusation against him in a

language he could understand.  Although during the court session on

16 February 1981 parts of the indictment were interpreted, only the

titles of the crimes alleged were made known to him in English, but

not the corpus delicti or the material substance upon which the

charges were grounded.  The applicant submits that the length of this

court session (one hour) does not prove that the indictment was in

fact translated in every detail.  Most of the time was spent waiting

for the defence counsel and trying to reach him.

 

91.     The applicant further complains that the court appointed

defence counsel Dr.  St failed to provide effective legal assistance

to him before and during the trial, in particular after the incident

described in para. 44 above.  While originally under the impression

that Dr.  St would take an interest in his defence, he eventually

became dissatisfied.  During his visits on 19 and 30 December 1980, 21

January and 9 February 1981, which never lasted more than ten minutes,

Dr.  St did not discuss any elements of the applicant's defence, but

merely wished him a "Merry Christmas" and a "Happy New Year" and

assured him that he would be released soon.  Thereby he gave the

applicant to understand that it was not worth bothering with a defence.

 

92.     Dr.  St's failure to effectively assist the applicant is also

demonstrated by his absence during the court session for serving the

indictment on 16 February 1981.  On 20 February 1981, when Dr.  St

came to see the applicant in prison and to tell him that the objection

against the indictment lodged by the applicant in his (Dr.  St's)

absence would be withdrawn, he did not know anything about the

indictment.

 

93.     Thereafter the applicant was visited by Dr.  St on another

three occasions prior to the trial.  As shown by the prison records,

the applicant was out of the secure area for a total of 110 minutes,

during which his defence counsel had visited him for approximately

30-35 minutes in total.

 

94.     It was in view of this situation that the applicant wrote

repeatedly to Dr.  St and also to the presiding judge, requesting to

be permitted to see the evidence against him, in particular the

telephone invoices which he was accused of not having paid.  On

19 March 1981 he wrote to the presiding judge requesting an inspection

of the court file (Akteneinsicht).  The applicant specifically asked

to discharge Dr.  St if the fact that he was represented by counsel

was the ground for denying him direct access to the evidence as it was

more important for him to know of the basis of the accusation than to

be represented by counsel.  This letter has disappeared from the file

as have subsequent letters of 23 (or 24) and 30 March 1981 to the

presiding judge and the letter of 30 March 1981 to the Public Prosecutor.

 

95.     With regard to these letters the applicant points to

inconsistencies in the Government's observations which are based on

the presiding judge's recollection.  In their statement of 25 July 1983

the Government had submitted that those letters (of 19, 23 and

30 March 1981) "consisted of lengthy repetitions of the applicant's

evidence already given in the preliminary trial and of the

announcement of evidence to be taken into account during the main

trial".   Similarly, the Government stated in their observations of

15 June 1984 that "the petitions filed by the applicant in the period

prior to his trial mainly relate to questions of security for the

trial, the publicity of the proceedings and the announcement of

evidentiary motions".  The contents of these letters were discussed by

the trial judge and Dr.  St over the telephone.  However, in their

observations of September 1985, the Government contend that "the other

letters (i.e. those with the exception of the one of 16 March 1981)

contained nothing new, and especially no evidentiary motions, as far

as the presiding judge remembers".

 

96.     In view of these inconsistencies the applicant submits that

the reason for not having these letters included in the file was the

presiding judge's inability to understand English.  Therefore he had

not read them as he admitted to the applicant's later defence counsel,

Dr.  Sch,  on 30 June 1981.  The applicant further suggests that the

judge was not sufficiently interested in conducting a fair trial to

have the letters translated.

 

97.     The applicant believes that on the morning of the trial his

defence counsel at that time, Dr.  St, was requested by the presiding

judge to acquaint him with the contents of the three letters now

missing.  Dr.  St assured the presiding judge that the letters

"consisted of lengthy repetitions of the applicant's evidence already

given in the preliminary trial and of the announcements of evidence

to be taken into account during the main trial".  Then Dr.  St took

possession of these letters which had not yet been indexed and which

were not returned to the file after the trial.

 

98.     As Dr.  St also assured him prior to the trial that the

presiding judge understood English, it was not until after the trial

that the applicant became aware that the presiding judge did not

understand English.  On the other hand the judge was under the

impression that he (the applicant) understood German.  The applicant

refers in this context to two letters from his later defence counsel,

Dr.  Sch, of 21 November and 3 December 1985, describing in detail a

conversation which he had had with the presiding judge.  The applicant

further suggests that the judge's impression that the applicant

understood German was due to the fact that his defence counsel, Dr.

St, had informed him accordingly.  The applicant also refers to a

telephone conversation by one United States Embassy official with the

presiding judge showing that the judge could not understand a request

in English for a visitor's permit.

 

99.     Pointing to the physical layout of the courtroom and the fact

that the interpreter was sitting next to his defence counsel at a

distance of approximately six to seven metres, the applicant argues

that he did not have the possibility to "turn to his defence counsel"

in case of unclarities - as suggested by the Government - without

requesting the judge to interrupt the proceedings.  So he had in fact

to rely on the summary interpretation provided by the interpreter and

the fact that his defence counsel was also conversant in English was

of no significance to the conduct of the trial.  The interpretation

provided was incomplete and therefore insufficient.  In particular,

neither were certain questions put to witnesses interpreted nor was

the judgment, save for its operative part and the information on

options to appeal.  Moreover, the record of the trial was incomplete

and, in particular, did not reflect the extent to which statements

were interpreted so as to preclude the applicant from effectively

redressing violations of the Convention.  The applicant claims that he

was promised a written translation of the record, but that he did not

even get a copy of the German original (cf. para. 27).

 

100.    Furthermore, his defence counsel failed to make certain

motions in order to preserve the right to appeal from the judgment,

as later noted by the Supreme Court.  During the trial he told the

Court that he was incapable of representing the applicant and asked to

be discharged (para. 44).  This request was denied.  He pleaded on the

applicant's behalf that the applicant was guilty of all charges

despite the applicant's wish to the contrary.  Finally, he turned over

an incomplete file to the defence counsel appointed for the appeal

proceedings.

 

101.    This new defence counsel was appointed on 22 May 1981 after

Dr.  St had on 21 May written to the Bar Association requesting to be

relieved of his duties.  There is no indication in the files that the

appointment of Dr.  Sch was in any way the result of the applicant's

letter of 6 April 1981 to the Presiding Judge.  Rather, this letter

was ignored, as were the previous ones.

 

102.    As regards the nullity proceedings before the Supreme Court

sitting in chambers, the applicant argues that these proceedings were

unfair and in violation of Article 6 para. 1 of the Convention.  The

telephone was used in order to establish the scope of the interpretation

during the trial, which is hardly a formal and reliable method of

conducting judicial proceedings.

 

103.    The evidence obtained from this enquiry was based on the

statement of the Presiding Judge of the Regional Court who did not

understand English and was therefore legally incompetent to give

evidence concerning the extent of interpretation at the trial.  Whereas

the Attorney General was allowed to comment thereon, the applicant did

not have an opportunity to do so and to produce additional evidence

in support of his allegation in reply.  The Attorney General, who,

according to the Government, has a neutral status, did nothing to

prevent the use of evidence so adduced and therefore he did not meet

his obligation to protect the law.

 

104.    With regard to the Supreme Court's view that even the failure

to appoint an interpreter could at the most constitute a ground for

nullity if a corresponding request had been denied by the trial court,

the applicant insists that the Contracting States are under a positive

obligation to ensure the observance of the guarantees provided for in

the Convention and to provide effective assistance of counsel and, if

required, effective assistance of an interpreter.  The Convention does

not place a burden on a defendant to request rights guaranteed

therein.

 

105.    As the European Court of Human Rights held in the Artico

judgment, the mere nomination of a defence counsel is not sufficient

for compliance with Article 6 para. 3 (c).  The same reasoning should

also apply as regards interpretation guaranteed by Article 6 para. 3 (e).

 

106.    Besides, he had repeatedly asked for translation of specific

evidence.  If motions should have been made at the trial, it would

have been for his defence counsel to do so.  His failure to make the

necessary motions demonstrates, once again, the lack of effective legal

assistance.  Without knowledge of German the applicant himself was

unable to select "unclarities" and to make specific requests for

interpretation as submitted by the Government.

 

107.    The Supreme Court's ruling in his own case that no ground for

nullity can be deduced from any insufficient performance of defence

counsel as it is not for the Court to supervise his activities must be

deemed to be representative of the case-law in Austria.  Thus, he did

not dispose of any effective remedy to redress violations of Article 6

during the trial.

 

108.    The applicant was not allowed to attend the public hearing of

his appeal before the Supreme Court, despite his express request to

this effect.  In this context the applicant refers to the Peschke case

where the question of whether the status of the applicant as a

detained person justifies a different treatment in comparison with

a person at liberty regarding his procedural rights under Article 6

paras. 1 and 3 (c) of the Convention in criminal appeal proceedings

has not finally been decided.

 

109.    Furthermore, the appeal considered by the Supreme Court also

concerned the civil law aspects of the judgment given by the Regional

Court.  The private parties (who were also prosecution witnesses)

were invited to attend the hearing of the appeal whereas the applicant

was denied this right.  If the appeal on the civil law aspects of the

case had been heard in accordance with Austrian Civil Procedure Law,

the applicant would have been permitted to attend, express his views

on the evidence, and the Supreme Court would have considered the

sufficiency of evidence adduced by the Regional Court with totally

different criteria.  In this respect the applicant claims to be a

victim of a violation of Article 14 considered with Article 6

paras. 1 and 3 (c), and Article 13 of the Convention.

 

110.    Finally, the applicant alleges a violation of the presumption

of innocence (Article 6 para. 2 of the Convention) in the criminal

proceedings against him, including the Supreme Court appeal

proceedings, on the ground that newspaper reports describing his case

and personality in a one-sided way had been included in the court file

and might have influenced the judges.

 

 

B.      The Government

 

111.    As regards, first, the issue of interpretation the

Government submit that the applicant was assisted by court-certified

interpreters during the police interrogation on 16 December 1980,

during the interrogations by investigating judges on 17 and

27 October, 28 November and 1 December 1980, during the remand

review hearing on 3 December 1980, and also during the court session

on 16 February 1981, when the applicant was notified of the

indictment.  The length of that session (one hour) suggests that

the interpreter who was present translated the essentials of the

indictment.  While it is true that the recitation of the transcript

during the interrogations by investigation judges was in German,

the transcript was subsequently interpreted into English for the

applicant, who was free to raise objections against its wording.

 

112.    On two occasions the applicant refused to sign the orally

interpreted transcript and insisted on a written translation.  Such a

written translation was, however, never promised by the Court.

Likewise, all essential parts of the indictment were interpreted,

including not only its operative part, but the whole reasoning as

well.  This fact is confirmed by the length of the court session which

lasted one hour.

 

113.    The fact that the applicant did not receive a written

translation of the indictment or any other written information in

English on the charges brought against him cannot be construed as a

violation of his rights under Article 6 of the Convention as

court-certified interpreters assisted during the preliminary

proceedings and at the trial.  Moreover, his officially appointed

defence counsel was also a certified interpreter for English.

 

114.    With respect to the applicant's complaint that he did not

receive written translations of certain parts of the file, the

Government regard it as certain that his lawyer discussed the defence

with the applicant with the aid of copies of the essential parts of

the file so that the applicant had accurate knowledge of the whole

content of the file.  Inspection of the files is, according to

Section 45 para. 2 of the Code of Criminal Procedure, primarily a

right of the defence counsel.  Inspection by the applicant would have

served no useful purpose given his limited knowledge of German.  His

knowledge of the contents of the file had been ensured by appointing a

defence counsel with an adequate command of English.  The Government

add that, in their view, there was no particular duty for the lawyer

personally to perform specific interpretation or translation work for

the applicant.  If, however, the applicant was dissatisfied with the

scope of interpretation, which in this respect was provided to him by

the lawyer, he was in principle entitled to complain to the court or

any other authority in his own language.

 

115.    As far as legal assistance by counsel is concerned, the

Government were informed by Dr.  St that he had performed the

following services for the applicant:

 

      3 December 1980:   Represented him at the remand review

                         hearing

 

     15 December 1980:   Set out a complaint

 

     22 February 1981:   Withdrew the applicant's objections

                         to the indictment

 

        16 March 1981:   Filed evidentiary motions, with

                         later additions by telephone

 

         2 April 1981:   Represented him at the trial

                         (ten half hours), filed appeal.

 

116.    He had also visited the applicant in prison ten times.  The

Government are, however, unable to state how much time Dr.  St devoted

to his client because there is only one visitor's permit with an entry

of a visit lasting from 11.55 am to 12.00 noon.  For subsequent visits

no permits were needed as Dr.  St had been appointed official defence

counsel.

 

117.    Moreover, as in the interests of the defence the activities of

defence counsel are not monitored by the court, the Government are

unable to comment on the preparation of the trial by the applicant's

defence counsel.  The Supreme Court stated in its decision of

1 September 1981 that the court's only obligation is to nominate a

defence counsel for the defendant for the proceedings before the trial

court and to invite him to attend the trial as well as any other

proceedings in which the defendant is allowed to participate.  It is

not the court's responsibility to monitor the activities of that

lawyer, who is not subject to the court's control but to the

disciplinary authority of the appropriate bar association.  Any

shortcomings should be brought to the notice of this association or of

the court.

 

118.    In the present case, the Austrian authorities met their

obligations as circumscribed in the decision of the European Court of

Human Rights in the Artico case by nominating a defence counsel and,

on learning that he was unable to fully meet his responsibilities for

linguistic reasons, by taking steps to have a new counsel appointed,

laying special emphasis on the latter's linguistic skills.  As regards

the alleged insufficient preparation of the trial by this counsel

(Dr.  St), the applicant did not take any action until 6 April 1981.

The court reacted immediately to this request by approaching the bar

association.  Dr.  St's replacement by Dr.  Sch, on 22 May 1981,  is

probably related to this request and to a letter of 21 May from Dr.  St

to the Tyrol Bar Association.

 

119.    The Government further state that all letters addressed to

the Regional Court, including those of 19, 23 and 30 March 1981, have

been duly transmitted.  Whilst originally submitting that these

letters consisted of lengthy repetitions of the applicant's evidence

already given in the preliminary proceedings and of the announcements

of evidence to be taken into account during the trial, the Government

have later observed that these letters contained nothing new, and

especially no evidentiary motions, as far as the presiding judge

remembers.  Nevertheless, the presiding judge asked the applicant's

defence counsel to read the letters and to discuss their contents with

the applicant and invited him to raise the arguments brought forward

in these letters at the trial and to introduce applications

accordingly.

 

120.    The presiding judge had such letters formally registered

where they contained concrete requests while only placing them in the

file as enclosures when they contained repetitions.  This procedure

seems justifiable in order to avoid cluttering the file.  Inexplicably,

the letters are now missing.  The allegation that they have been

suppressed or destroyed is entirely unfounded.  There seem to have

been no sealed envelopes in the file at the time when Dr.  Sch examined

it, with the exception of the records of the court's deliberations.

 

121.    The Government also affirm the court's duty to have

communications from a remand prisoner to it translated where they are

unintelligible to it on account of their being written in a foreign

language.  In the present case, the presiding judge had sufficient a

command of English to understand the contents of the original letters.

 

122.    The Government state that records kept of the trial do not

show what was interpreted.  Section 271 of the Code of Criminal

Procedure does not provide for placing the scope of interpretation on

record.  The rejection of specific motions for interpretation would

have to be recorded, but no such motions were made.

 

123.    Basing themselves on information supplied by the applicant's

former defence counsel, Dr.  St, and on the enquiry made by the Supreme

Court (see paras. 54 and 57 above), the Government observe that, while

the questions put to witnesses were not interpreted, all depositions

and all documents used in the proceedings were interpreted into

English to the extent necessary.  However, interpretation was not

simultaneous but consecutive and summarising.  This is in particular

true for the pleading by the prosecution and by the defence.  The

judgment, including the reasons, was interpreted in all essential

points.

 

124.    No objections were raised with respect to the extent of the

interpretation provided at the trial.  The applicant followed the

course of the trial self-confidently and with lively interest and

frequently asked for permission to speak, even when a deposition had

not yet been translated into English, so that the presiding judge had

the impression that the applicant had at least some knowledge of

German.  Moreover, he had the possibility in case of unclarities to

turn to his defence counsel who knew English.  Supervision of the work

done by the interpreter was also ensured by the fact that the

presiding judge himself had a sufficient knowledge of English.

 

125.    The enquiry carried out by the Supreme Court in the context

of the proceedings on the plea of nullity pursuant to Section 285f of

the Code of Criminal Procedure involved a formal investigation

designed to clear up alleged wants of legal form.  As it did not

involve investigations in the material sense, the reference to the

principle of equality of arms made by the applicant seems

inappropriate in the context.  Nor can the examination of the plea

of nullity by the Supreme Court sitting in chambers be regarded as

a violation of this principle, because the Attorney General,

notwithstanding his procedural status, cannot, in view of his

functions, be the defendant's adversary in merito in ordinary

appeal proceedings.

 

126.    The Attorney General is not the representative of the

prosecution, whose functions remain with the prosecutor who acted at

first instance, but he only comments on an appeal, being entrusted

with the task of protecting the law.  Hence the Attorney General has a

status similar to that of the Attorney General attached to the Belgian

Court of Cassation whom the European Court of Human Rights considered

to be an officer entrusted with assisting the court in protecting the

law, a task completely independent of, and in fact frequently running

counter to, the intention of the prosecuting authority (Delcourt

judgment of 17 January 1970, Series A no. 11).

 

127.     Turning finally to the appeal proceedings, the Government

observe that the present case should be distinguished from the

Peschke case as the sentence was not increased and could not have

been increased because the applicant alone had lodged an appeal.

Moreover, in the present case the subject of the Supreme Court's

hearing was not the applicant's personality structure (as in the

Peschke case) but an examination of legal questions, on the one hand,

and the assessment of specific extenuating and aggravating grounds

on the other.

 

128.  The Supreme Court was able to examine these questions on the

basis of the file without the applicant's presence.  The present case

should therefore be decided in accordance with the Commission's

decision on the admissibility of Application No. 7138/75 (5.7.77,

D.R. 9, p. 50 et seq. at p. 53).  The Goverment submit that, given the

Commission's view in the Peschke case, the applicant's rights under

the Convention were not violated here.  In addition, they refer to the

Commission's opinion in Monnell and Morris v.  United Kingdom (Comm.

Report 11.3.85, Eur.  Court H.R., Series A no. 115) according to which

the Convention does not guarantee the defendant's right to be present

at a hearing held to assess legal questions.

 

IV.   OPINION OF THE COMMISSION

 

        A.      Points at issue

 

129.    In the present application, the following points are at issue:

 

        1) whether, in the criminal proceedings before the Regional

Court, there has been a violation -

 

        a) of the applicant's right to be informed of the accusation

against him (Article 6 para. 3 (a) of the Convention) (Art. 6-3-a);

 

        b) of the applicant's right to be granted adequate facilities

to prepare his defence (Article 6 para. 3 (b) of the Convention)

(Art. 6-3-b);

 

        c) of the applicant's right to legal assistance (Article 6

para. 3 (c) of the Convention) (Art. 6-3-c);

 

        d) of the applicant's right to put questions to witnesses

(Article 6 para. 3 (d) of the Convention) (Art. 6-3-d);

 

        e) of the applicant's right to interpretation (Article 6

para. 3 (e) of the Convention) (Art. 6-3-e);

 

        f) of the applicant's right to a fair hearing (Article 6

para. 1 of the Convention) (Art. 6-1);

 

        g) of the applicant's right to be presumed innocent (Article 6

para. 2 of the Convention) (Art. 6-2);

 

        2) whether, in the proceedings before the Supreme Court, there

has been a violation -

 

        a) of the applicant's right to a fair hearing (Article 6 para. 1)

(Art. 6-1) in the nullity proceedings;

 

        b) of the applicant's rights under Article 14 of the

Convention ( Art. 14) (prohibition of discrimination) read in conjunction

with Article 6 para. 1 (Art. 6-1) (fair hearing) and para. 3 (c) (Art. 6-3-c)

(right to defend oneself in person) in the appeal proceedings;

 

        c) of the applicant's right to effective domestic remedies

(Article 13 of the Convention) (Art. 13).

 

 

        B.     As to the Commission's task under Article 28 (a)

               of the Convention (Art. 28-a)

 

130.    The parties disagree on the scope of interpretation and legal

assistance provided in the first instance proceedings and also as to

whether alleged shortcomings were duly raised (cf. the decision on

admissibility - Appendix II, para. 2 of "The Law").  They have

suggested that further evidence should be taken (cf. para. 13 above).

 

131.    Under Article 28 para. a (Art. 28-a) of the Convention the

Commission shall, in its examination of the merits of the application,

ascertain the facts of the case, if need be, by an investigation to be

carried out with the assistance of the parties and in particular

the respondent State.  This provision requires the establishment of

facts which are relevant for the determination of the legal issues

under the Convention (cf.  No. 9999/80, Colak v.  Federal Republic of

Germany, Comm.  Report 6.10.1987, paras. 143-144).

 

132.    The Commission has before it the applicant's account of the

proceedings, supported by documents providing circumstantial evidence.

There is no indication that further evidence could be produced by the

applicant.

 

133.    The Government, contesting the applicant's submissions, refer

to the court file, in particular the trial record and the findings of

the Supreme Court, but also statements made by the the Presiding Judge

of the Regional Court and the legal aid defence counsel who

represented the applicant at first instance.  There is no indication

that further evidence could be produced by the Government.

 

134.    It has not been possible for the Commission to ascertain the

whereabouts and exact contents of the letters which the applicant

addressed to the Regional Court prior to the trial in March 1981 and

which are now missing from the case-file.  According to the applicant

these letters show that he complained of the pre-trial procedure and

the lack of effective legal assistance.  However, it cannot be expected

that an investigation would lead to the discovery of the letters in

in question or provide further information on their contents (cf.

paras. 36-42 above).

 

135.    The Commission has therefore come to the conclusion that an

investigation would not produce fresh evidence and that it must

accordingly assess the facts on the basis of the material before it.

In view of the fact that the above letters disappeared in the hands of

the authorities the Commission assumes in the applicant's favour that

his description of the contents of those letters, as given in his

subsequent letters to the prison legal officer, Dr.  P, (25 March 1981)

and to the Presiding Judge (18 May 1981) is substantially correct.

 

 

        C.    The proceedings before the Regional Court

 

136.    The applicant's complaints concern primarily the scope of

interpretation.

 

1.    As to the alleged violation of Article 6 para. 3 (a) (Art. 6-3-a)

      of the Convention

 

137.    The applicant alleges that the indictment was not fully

interpreted when served on 16 February 1981.  He invokes his right

under Article 6 para. 3 (a) (Art. 6-3-a) of the Convention "to be informed

promptly, in a language which he understands and in detail, of the

nature and cause of the accusation against him."

 

138.    The linguistic guarantee set forth in Article 6 para. 3 (a)

(Art. 6-3-a) - like that in para. 3 (e) (Art. 6-3-e) - shall secure

that an accused who does not understand the language used in court

possesses the same chances of defending himself as an accused who

does.  The Convention does not expressly provide for the information

required by Article 6 para. 3 (a) (Art. 6-3-a) to be given in writing.

 

139.    Where the charges are formulated in writing, the question

arises whether Article 6 para. 3 (a) (Art. 6-3-a) requires a written

translation.  In the present case the bill of indictment was drawn up

in writing and the applicant never received a written translation.

However, in the particular circumstances the Commission need not

decide whether a written translation was required by Article 6 para.

3 (a) (Art. 6-3-a).  The fact that the defence did not request a written

translation at any time during the domestic proceedings indicates

that, in the opinion of the applicant and his counsel, an oral

translation was considered sufficient.

 

140.    As regards the oral translation, the Commission notes that the

pre-trial hearing on 16 February 1981, at which the applicant was

notified of the indictment in the presence of an interpreter (para. 31

above), lasted one hour.  In the Government's view the length of that

session suggests that the interpreter translated the essentials of the

indictment.

 

141.    This is disputed by the applicant who claims that most of the

time was spent trying to reach his legal aid defence counsel who had

not appeared at that hearing.  The applicant admits, however, that

some information on the indictment was given to him in English on

this occasion.

 

142.    Moreover, the objection which the applicant lodged against the

indictment was not based on the ground that he had not understood it,

but on the argument that it was not supported by sufficient evidence.

The same argument appears in the letter which the applicant wrote to

his legal aid defence counsel, complaining of the latter's failure to

appear.  This letter does not contain any complaint concerning

interpretation (cf. para. 33 above).

 

143.    The Commission finally notes that at the same pre-trial

hearing the applicant requested that the indictment should also be

served upon his defence counsel (cf. para. 32 above).  The latter

subsequently withdrew the applicant's objection against the

indictment, after having contacted the applicant (cf. para. 34 above).

It must be assumed that, if any points concerning the contents of the

indictment remained to be clarified at this juncture, the applicant

had the opportunity to get the necessary explanations from his defence

counsel.

 

144.    In these circumstances the Commission finds no indication that

the applicant was not informed in detail of the charges against him by

about mid-February 1981, i.e. some six weeks before his trial.

 

        Conclusion

 

145.    The Commission concludes by eleven votes to six that there has

been no violation of Article 6 para. 3 (a) (Art. 6-3-a) of

the Convention.

 

2.    As to the alleged violation of Article 6 para. 3 (b) (Art. 6-3-b)

of the Convention.

 

146.    The applicant alleges that he was unable to prepare his

defence because he was not permitted to inspect the court files and to

review the evidence against him.  He invokes his right under Article 6

para. 3 (b) (Art. 6-3-b) of the Convention "to have adequate ... facilities to

prepare his defence".

 

147.    The Commission notes that Austrian law accords a right of

access to the file primarily to the defence counsel and to the accused

only if he is not represented (cf. para. 76 above).

 

148.    The applicant's defence counsel was given access to the court

file and facilities to discuss the case with the applicant.  The

applicant complains that his counsel did not sufficiently acquaint him

with the evidence contained in the file.  But this does not give rise

to any responsibility of the State (cf. paras. 154-156 below).

 

149.    The Commission accordingly finds that Article 6 para. 3 (b)

(Art. 6-3-b) did not require that the applicant be granted personal access to

the file, and that any failure by counsel to acquaint the applicant with

details of the file is not imputable to the State under this provision.

 

        &SConclusion&_

 

150.    The Commission concludes by fourteen votes to three

        that there has been no violation of Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention.

 

 

3.    As to the alleged violation of Article 6 para. 3 (c)

      (Art. 6-3-c) of the Convention

 

151.    The applicant complains that the assistance by his legal aid

counsel, Dr.  St, was ineffective regarding both the preparation and

the conduct of his defence.  He invokes Article 6 para. 3 (c) (Art.

6-3-c) of the Convention which guarantees the right of the accused "to

defend himself  ... through legal assistance of his own chosing, or,

if he has not sufficient means to pay for legal assistance, to be

given it free when the interests of justice so require".

 

152.    In the Artico case, the Court has interpreted this provision

as follows (Judgment of 13 May 1980, Series A no. 37, pp. 15 et seq.,

paras. 33 and 36):

 

         "The Convention is intended to guarantee not rights

that are theoretical or illusory but rights that are

practical and effective; this is particularly so of the

rights of the defence in view of the prominent place held in

a democratic society by the right to a fair trial, from

which they derive ...  Article 6 para. 3 (c) (Art. 6-3-c)

speaks of 'assistance' and not of 'nomination'.   Again, mere

nomination does not ensure effective assistance since the

lawyer appointed for legal aid purposes may ... shirk his

duties.  If they are notified of the situation, the

authorities must either replace him or cause him to fulfil

his obligations ... ."

 

        "Admittedly, a State cannot be held responsible for

every short-coming on the part of a lawyer appointed for

legal aid purposes but, in the particular circumstances, it

was for the competent [Italian] authorities to take steps to

ensure that the applicant enjoyed effectively the right to

which they had recognised he was entitled.  Two courses were

open to the authorities: either to replace [the legal aid

defence counsel], or, if appropriate, to cause him to fulfil

his obligations ... ."

 

153.    The Commission recalls that in the Artico case the court-

appointed legal aid counsel expressly declared that he was prevented

from accepting his appointment and subsequently refused to take any

action, and that accordingly the accused did not have the benefit of

counsel's services at all.  By contrast, in the present case Dr.  St

was appointed by the Tyrol Bar Association in November 1980 in order

to replace another defence counsel previously appointed who did not

possess a sufficient knowledge of English.  Dr.  St accepted this

appointment on 26 November 1980 and went to see the applicant in

prison on 3 December 1980.  He also visited him on later occasions,

inter alia withdrew the applicant's objection to the indictment

and, in particular, represented him at the trial on 2 April 1981.

Therefore, the present case significantly differs from the Artico case

on the facts.

 

154.    The present applicant complains that the performance of

Dr.  St was inadequate throughout the period in which he represented

him.  However, it is clear from the Court's above judgment that not

every shortcoming on the part of a legal aid defence counsel can be

imputed to the State as a failure to ensure effective legal

assistance.

 

155.    In principle, the situation of a legal aid counsel is the

same as that of a lawyer retained by the defendant; they are equally

independent from the State.  The question of how counsel defends his

client is primarily a matter between them.  Therefore it is in the

first place for the accused to ensure that his representative fulfils

his duties.

 

156.    Only if such attempts by the accused should fail may the State

authorities be called upon to take steps, either by causing the court-

appointed defence counsel to fulfil his obligation, or by replacing

him if this is not feasible or practicable.  This, however,

presupposes that the competent authorities are made aware of the

alleged failure of the officially-appointed defence counsel to defend

the accused.  Again, it will be for the accused to inform the

competent authorities of such a failure unless it is manifest.

 

157.    The applicant submits that he raised this issue in his letters

of 19, 23 (or 24) and 30 March 1981 to the presiding judge of the

Regional Court.  Those letters are now missing from the court file and

the Government have no explanation therefor.  The contents of these

letters can thus not be established by the Commission.  But, even

assuming that in those letters the applicant voiced criticism about

the pre-trial procedure and expressed dissatisfaction with the

performance of his defence counsel (cf. para. 135 above), the

Commission must note that the applicant, according to his own summary

of those letters given in his subsequent letter of 18 May 1981, did

not request Dr.  St's replacement by another defence counsel.

 

158.    It is true that according to that summary the applicant asked

that Dr.  St be discharged if his appointment was the ground for not

giving himself direct access to the court file.  However, there is no

indication that either in this or a subsequent letter the applicant

asked to appoint a new defence counsel on the ground that Dr.  St had

failed to fulfil his duties at the pre-trial stage.

 

159.    Moreover, there is no indication that at the trial the

applicant asked to replace his defence counsel.  The Commission here

notes that at the trial counsel requested to be discharged and that

this request was rejected by the Court (cf. para. 44 above).  But it

does not appear that the applicant made a request to replace defence

counsel on that occasion, nor that he objected to his continued

representation by Dr.  St.  It was only after the trial, on 6 April 1981,

that the applicant asked to appoint another defence counsel for the

appeal proceedings on the ground that he did "not get along with Dr.  St".

 

160.    The applicant alleges that Dr.  St did not effectively assist

him at the trial (cf. paras. 91 and 100 above).  The question before

the Commission is whether the Regional Court should have noted that

the applicant's defence counsel failed to assist him and should

accordingly have taken any steps ex officio.  On the basis of the facts

as established the Commission cannot find that such a duty existed in

the present case.  The applicant's allegation that his defence counsel

acted contrary to the applicant's wishes in certain respects does not

necessarily support the conclusion that the defence was not effective.

 

161.    In view of these circumstances the Commission does not find

that the Regional Court was required to intervene in the relations

between the applicant and his defence counsel or to replace the latter

at the trial.

 

        &SConclusion&_

 

162.    The Commission concludes unanimously that there has been no

violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.

 

 

4.    As to the alleged violation of Article 6 para. 3 (d) (Art.

      6-3-d) of the Convention

 

163.    The applicant complains that at the trial he was unable to

exercise his right to examine witnesses because the interpretation was

insufficient.  He alleges, in particular, that questions to witnesses

were not interpreted, and their replies only in part and in summary

form.  He invokes Article 6 para. 3 (d) (Art. 6-3-d) in conjunction

with para. 3 (e) (Art. 6-3-d+6-3-e) of the Convention.  According to

Article 6 para. 3 (d) (Art. 6-3-d) the accused shall have the right

"to examine or have examined witnesses against him and to obtain the

attendance and examination of witnesses on his behalf under the same

conditions as witnesses against him".

 

164.    The Commission considers that statements of witnesses at the

trial have to be interpreted for an accused who does not understand

the language used in court in order to enable him effectively to

exercise his right under Article 6 para. 3 (d) (Art. 6-3-d).  The same

holds true for the interpretation of questions to witnesses insofar as

it is necessary in order to enable the applicant to follow the

proceedings and to exercise his rights of defence effectively.

 

165.    In the present case there is a disagreement between the

parties as to the scope of interpretation provided at the trial as

regards questions to and statements of witnesses (cf. paras. 47, 99,

and 123 above).  It has not been possible for the Commission to

clarify the relevant facts and to establish whether the interpretation

was sufficient (cf. paras. 130 et seq. above).  However, neither the

applicant nor his bilingual defence counsel voiced any discontent

during the trial as regards the interpretation of questions put to

witnesses and of witnesses' statements, nor did they make any requests

in this respect.  There is no indication that the applicant was in fact

unable to follow the proceedings and prevented from putting questions

by lack of interpretation.

 

        &SConclusion&_

 

166.    The Commission concludes unanimously that there has been no

violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.

 

 

5.    As to the alleged violation of Article 6 para. 3 (e)

      (Art. 6-3-e) of the Convention

 

167.    The applicant complains that both at the pre-trial stage and

at the trial the interpretation was inadequate.  He invokes his right

under Article 6 para. 3 (e) (Art. 6-3-e) of the Convention "to have the free

assistance of an interpreter if [the accused] cannot understand or

speak the language used in court".

 

168.    In the case of Luedicke, Belkacem and Koç, the Court has held

that Article 6 para. 3 (e) (Art. 6-3-e) "signifies that an accused who

cannot understand or speak the language used in court has the right to

the free assistance of an interpreter for the translation or

interpretation of all those documents or statements in the proceedings

instituted against him which it is necessary for him to understand in

order to have the benefit of a fair trial"   (Luedicke, Belkacem and

Koç judgment of 28 November 1978, Series A No. 29, p. 20 para. 48).

 

169.    The Commission notes that the present applicant did not

sufficiently understand or speak the language used in court, i.e.

German.  He was therefore entitled to the free assistance of an

interpreter, as required by Article 6 para. 3 (e) (Art. 6-3-e).

Moreover, it follows from the above judgment of the European Court

that his right to interpretation was not limited to the trial, but was

also of significance in the pre-trial proceedings.  Already at this

stage a person charged with a criminal offence is entitled to receive

the free assistance of an interpreter to the extent that such

assistance is necessary to provide him with an opportunity to prepare

his defence and thereby to ensure that the trial will be fair.

 

170.    In the present case the Austrian authorities recognised the

need for interpretation and interpreters were accordingly present and

acting at all decisive stages of the proceedings, including the

interrogations of the applicant by the police and the investigating

judge, the court hearing at which the indictment was served, and

finally at the trial.  The Government claim that their obligations

9783/82

 

 

under Article 6 para. 3 (e) (Art. 6-3-e) were fulfilled in this way.

They further observe that the applicant was assisted by a legal aid

defence counsel who was at the same time a certified interpreter for

English, replacing an earlier defence counsel whose knowledge of

English was insufficient.

 

171.    The applicant, on the other hand, submits that his legal aid

defence counsel did not assist him effectively and that the

interpretation provided by interpreters at the various stages of the

proceedings was insufficient as regards its quality and its scope.  He

claims that mere appointment of interpreters is not enough to ensure

effective interpretation, and that a subsequent control of effective

interpretation is called for by virtue of the principle stated in the

Artico case with regard to Article 6 para. 3 (c) (Art. 6-3-c) which,

in his view, must also apply in respect of Article 6 para. 3 (e) (Art.

6-3-e).

 

172.    In the present case interpreters were present and acting at

all decisive stages of the proceedings.  The Commission also notes

that the applicant's defence counsel was a certified interpreter

for English and therefore able to control the quality of the

interpretation.  The Commission agrees with the applicant that the

mere appointment of interpreters is not enough to ensure effective

interpretation, and that a certain control of their performance also

by the Court is called for by analogous application of the above

Artico principle.  Nevertheless an obligation of the competent

authorities to intervene can only arise if they are aware of short-

comings in the interpretation likely to interfere with the rights

of the defence.

 

173.    The applicant first complains of insufficient interpretation

at his interrogations by the police in the initial phase of the

proceedings.  However, it does not appear that at the police

interrogations either the applicant did not understand, or could not

make himself understood, with the assistance of the persons acting as

interpreters, or that, if the interpretation was inadequate, his

defence was thereby in any way adversely affected.

 

174.    As regards the pre-trial interrogations by investigating

judges, the Commission notes that on each occasion court-certified

interpreters were present.  There is no indication that the

interpretation provided on these occasions was inadequate.

 

175.    The applicant also contends that he was prejudiced by the way

in which his statements during the interrogations by the investigating

judges were recorded, and that he was treated less favourably than a

German-speaking accused would have been.  However, the Commission

finds no indication that the recording of the applicant's statements

involved a violation of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention.

 

176.    The applicant further alleges that the letters which he

addressed to the presiding judge prior to the trial in March 1981 were

disregarded because the judge did not understand English.  However, the

Commission notes that, to the extent to which these documents could be

regarded as relevant to the case, the presiding judge discussed them

with the applicant's defence counsel who was thus in a position to

9783/82

 

 

make the proper motions (paras. 97 and 119).  In these circumstances

it cannot be found that the applicant's above submissions were

disregarded due to lack of interpretation.

 

177.    At the trial interpretation was again ensured by a court-

certified interpreter whose qualification is not questioned.  The

applicant only complains of the manner in which the interpretation was

provided and of its scope.  He alleges that there was no complete

interpretation of the indictment and other documents read out, of the

questions put to witnesses and of their answers, and finally of the

judgment and its reasoning.

 

178.    The Commission notes that the interpretation at the trial was

consecutive and summarising (cf. para. 123 above).  It seems that due

to the physical lay-out of the courtroom it was difficult for the

applicant to enter into direct contact with either his defence counsel

or the interpreter in order to clarify specific points of interpretation

without interrupting the proceedings.  It would therefore have been

necessary to turn to the presiding judge if the defence wanted to

raise any issue of insufficient interpretation of specific statements.

It is clear from the trial record that neither the applicant himself

nor his defence counsel made any request in this respect.

 

179.    The scope of interpretation provided at the applicant's trial

is in dispute between the parties (cf. paras. 45 et seq., 99 et seq.

and 122 et seq. above).  The trial record does not indicate which

statements were interpreted and which were not.  The Commission is

therefore unable to determine the exact scope of interpretation

provided at the applicant's trial (cf. paras. 130 et seq. above).  It

notes, however, that neither the applicant nor his bilingual defence

counsel brought any alleged deficiencies in the interpretation to the

attention of the Regional Court or sought redress at the trial.  The

Court would have been obliged to record any specific request made by

the applicant or his defence counsel in this respect, and failure by

the Court to deal with such requests would have provided a ground of

nullity (cf. para. 78 above).  In these circumstances the Commission

finds no reason to assume that the interpretation was so inadequate

that the Court was required to intervene under Article 6 para. 3 (e)

(Art. 6-3-e). The applicant has not indicated any specific statements

which, in his opinion, should have been interpreted verbatim and were

not so interpreted.

 

180.    Finally, as regards the applicant's complaint that even after

the trial he did not get a translation of the Regional Court's

judgment, the Commission recalls its case-law according to which such

translation is not required by the Convention (No.11122/84, Dec. 2.12.85).

In the present case, the lack of translation did not prevent the

applicant from effectively filing a plea of nullity and an appeal with

the assistance of his new counsel appointed for this purpose.

 

        &SConclusion&_

 

181.    The Commission concludes by fifteen votes with two abstentions

that there has been no violation of Article 6 para. 3 (e) (Art. 6-3-e)

of the Convention.

 

6.    As to the alleged violation the applicant's right, under

      Article 6 para. 1 (Art. 6-1) of the Convention, to a fair hearing

      in the proceedings before the Regional Court

 

182.    The applicant claims that the combined impact of the alleged

procedural deficiencies discussed above made his trial as a whole

unfair.  The Commission recalls its above findings that the applicant's

complaints under Article 6 para. 3 (Art. 6-3) are unfounded, in particular that

he was informed of the accusation (para. 144), granted legal

assistance (paras. 153 to 161) and interpretation (para. 179).  The

Commission has already noted that the trial record was not of a nature

which allowed the settlement of the dispute concerning the details of

interpretation (cf. para. 179 above).  Being aware of the special

importance of the guarantee in Article 6 para. 3 (e) (Art. 6-3-e) of the Convention

for the participation in the trial of an accused who does not

understand or speak the language used in court, the Commission

considers it important that details of interpretation be recorded in

an appropriate manner.  This does not imply that there must be a full

record in the foreign language, but the trial record should show with

sufficient clarity which statements made or documents read out at the

trial were interpreted.  Nevertheless, failure to record details of

interpretation cannot in itself be regarded as a violation of the

principle of fair hearing within the meaning of Article 6 para. 1

(Art. 6-1)of the Convention.   The Commission notes that the applicant

has not submitted any separate complaints under Article 6 para. 1

(Art. 6-1).  In the circumstances the Commission finds that the

applicant's trial as a whole cannot be regarded as unfair.

 

        &SConclusion&_

 

183.    The Commission concludes by eleven votes to six that, in

the proceedings of first instance, there has been no violation of

Article 6 para. 1 (Art. 6-1) of the Convention.

 

 

7.    As to the alleged violation of the presumption of

      innocence (Article 6 para. 2 (Art. 6-2) of the Convention)

 

184.    The applicant also alleges a violation of Article 6 para. 2

(Art. 6-2) of the Convention, according to which "(e)veryone charged

with a criminal offence shall be presumed innocent until proved guilty

according to law".

 

185.    The applicant refers to press articles which were published

after his arrest and included in the court file.  However, Article 6

para. 2 (Art. 6-2) does not prohibit the publication of press

articles.  Neither can the mere fact that such articles are included

in a court-file be regarded as a violation of the presumption of

innocence (cf. e.g. No. 10486/83, Hauschildt v.  Denmark, Dec.

9.10.86, to be published; No. 10857/84, Bricmont v.  Belgium, Dec.

15.7.86, to be published).

 

186.    Moreover, the applicant did not show, and the Commission finds

no indication, that the Regional Court or the Supreme Court might have

been influenced by those publications.  Accordingly, there is no

appearance of a violation of Article 6 para. 2 (Art. 6-2).

 

         Conclusion

 

187.    The Commission concludes unanimously that there has been no

violation of Article 6 para. 2 (Art. 6-2) of the Convention.

 

D.      The Supreme Court proceedings

 

1.      As to the alleged violation of the applicant's right,

        under Article 6 para. 1 (Art. 6-1) of the Convention, to a

fair hearing in the nullity proceedings

 

188.    The applicant submits that the proceedings on his plea of

nullity before the Supreme Court were unfair as the Court relied in

its judgment on evidence obtained from the Regional Court over the

telephone.  Whereas the Attorney-General was allowed to comment

thereon, the applicant did not have the opportunity to do so.  The

applicant considers that this way of proceeding was contrary to the

requirements of a fair hearing within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, in particular the principle of equality

of arms enshrined therein.

 

189.    Article 6 para. 1 (Art. 6-1) applies to nullity proceedings before

Supreme Courts (cf.  Eur.  Court H.R., Delcourt judgment of 17 January 1970,

Series A no. 11, pp. 13 et seq., para. 25; Deumeland judgment of

29 May 1986, Series A no. 100, p. 26 para. 77).  The Commission must

therefore examine whether the enquiry carried out by the Austrian

Supreme Court pursuant to Section 285 f of the Code of Criminal

Procedure, and the use of the evidence obtained thereby, was "fair"

in the sense of this provision.

 

190.    In this context the Commission does not find it necessary

to discuss the position of the Attorney-General.  The concept of

"equality of arms" is only one aspect of the principle of "fair trial"

(cf.  Eur.  Court H.R., Neumeister judgment of 27 June 1968, Series A

no. 8, p. 43 para. 22; Delcourt judgment of 17 January 1970, Series A

no. 11, p. 15 para. 28; No. 10938/84, Kaufman v.  Belgium, Dec. 9.12.86,

to be published in DR).  So, even if the Attorney-General was not

considered as representative of the Prosecution and the defendant's

adversary, the nullity proceedings may have been unfair for other

reasons.

 

191.    The Commission notes that, in order to establish whether the

applicant's allegations concerning the scope of interpretation at the

trial were correct, the judge of the Supreme Court acting as

Rapporteur telephoned the judge of the Regional Court who had presided

over the trial.  The contents of the information thereby obtained were

taken down in a note by the judge acting as Rapporteur.  No notice was

given to the applicant or his representative of either the enquiry as

such or of its results; in particular, the note was not communicated

to either of them.  In its judgment the Supreme Court almost literally

relied on this note.

 

192.    The Commission finds it essential that the party directly

affected by any investigation of facts, even if it relates only to a

procedural point, be given the opportunity to comment on the evidence

obtained.  Only in this way can the party concerned be enabled to

adduce any existing counter-evidence.  In the Commission's view, this

is a procedural principle inherent in the notion of "fairness" of the

trial (see also, mutatis mutandis, Eur.  Court H.R., Sanchez-Reisse

judgment of 21 October 1986, Series A no. 107, p. 19 para. 51).

 

193.    Moreover, in the present case the person on whose statements

the Supreme Court relied was the presiding judge of the Regional Court

who, according to the applicant, had failed to ensure a sufficient

interpretation at the trial.  At least in the applicant's view, the

presiding judge's impartiality and the credibility of his statement

could, in this respect, be open to doubt.  Moreover, the presiding

judge's statement is contradicted by the reports of the consular

observers (paras. 46 and 48 above).

 

194.    In the light of these considerations, the Commission finds

that the Supreme Court, by not giving the applicant the opportunity to

comment on the evidence obtained by way of the enquiry pursuant to

Section 285 f of the Code of Criminal Procedure and by relying on this

evidence in its decision, acted contrary to the requirements of fair

trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

 

         &SConclusion&_

 

195.     The Commission concludes unanimously that, in the proceedings

concerning the plea of nullity, there has been a violation of Article 6

para. 1 (Art. 6-1) of the Convention.

 

2.      As to the alleged violation of the applicant's rights

        under Article 14, (Art. 14+6-1) read in conjunction with

Article 6 para. 1 and para. 3 (c) (Art. 6-3-c) of the

Convention, in the appeal proceedings

 

196.    The applicant complains that, in the proceedings before the

Supreme Court concerning his appeal against sentence and against the

order to pay compensation to two private parties, he was not allowed

to attend the oral hearing whereas an accused at liberty would have

had a right to attend and the private parties were also summoned.  He

alleges that the Supreme Court's ruling refusing his request to be

brought before the Court constituted a discriminatory treatment of him

as a detained person contrary to Article 14 (Art. 14+6-1) read in

conjunction with Article 6 paras. 1 and 3 (c) (Art. 6-3-c) of the

Convention.

 

197.    The Commission notes that the above court ruling was based on

the version of Section 296 para. 3 of the Austrian Code of Criminal

Procedure as then in force (reproduced at para. 83 of this Report).

It further notes that in connection with the friendly settlement

reached in the Peschke case (Comm.  Report 13.10.81, D.R. 25 p. 182)

this provision has in the meanwhile been replaced by the version set

out at para. 85 above.

 

198.    The Commission further recalls its decision on admissibility

in the Peschke case, which concerned a similar situation, arising

under the old provisions of the Austrian Code of Criminal Procedure.

In that case an appeal had been lodged by the prosecution and had led

to an increase of the applicant's sentence without his having appeared

in person at the appeal hearing before the Supreme Court.  The

Commission there stated (No. 8289/78, Dec. 5.3.1980, D.R. 18 pp. 160

et seq., para. 2 at p. 167):

 

        "Although the applicant has not invoked any particular

        provision of the Convention in this respect, the Commission

        has examined this complaint under Article 14 (Art. 14+6-1)

of the Convention, read in conjunction with Article 6 para. 1

        and Article 6 para. 3 (c) (Art. 6-3-c).  Article 14 secures

to everyone the enjoyment of the rights and freedoms set forth

in the Convention without discrimination on any ground such as,

        for instance, status.  The question which arises in the

        present case is whether the status of the applicant as a

        detained person justified a different treatment in comparison

        with a person at liberty regarding his procedural rights

        under Article 6 para. 1 (Art. 6-1) and Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention in criminal appeal proceedings."

 

The Commission notes that the above issue was not determined in the

Peschke case where the parties reached a friendly settlement (Comm.

Report 13.10.81 loc. cit.).

 

199.    Subsequently, the Commission dealt with the question of the

detained person's presence at the appeal hearing in another case, in

which the appeal had been lodged by the accused and in which the

sentence could not be increased for this reason.  The applicant in

that case only invoked Article 6 paras. 1 and 3 (c) (Art. 6-1) (Art.

6-3-c) and the Commission found that in the particular circumstances

of that case these provisions had not been violated by the fact that

the applicant had not been allowed to attend the appeal hearing (No.

9315/81, Jesso v. Austria, Dec. 15.7.83, D.R. 34 p. 96).

 

200.    In the present case the applicant's complaint is essentially

one of discrimination as in the Peschke case (para. 198).  The

Commission therefore is not called upon to consider whether the

complaint could raise an issue under Article 6 (Art. 6) in isolation.

It finds it sufficient to examine the issue under Article 14 (Art.

14+6-1) read in conjunction with Article 6 paras. 1 and 3 (c) (Art.

6-3-c) in accordance with the complaint actually made.

 

201.    Article 14 (Art. 14) of the Convention provides:

 

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

 

202.    Under this provision the Commission must examine whether there

is any "objective and reasonable justification" (cf. e.g.  Eur.  Court

H.R. Inze judgment of 28 October 1987, Series A no. 126, p. 18 para. 41)

for treating the applicant as a detained defendant differently from

a defendant who is at liberty, as regards his attendance of the

appeal hearing.  The Commission here notes that special technical

arrangements, including necessary security measures, are to be made

if a detained person is to be brought before the court.  These

arrangements will involve certain expenses and may create certain

difficulties for the authorities.  However, in the present case, these

expenses and difficulties would not, in the Commission's opinion, be

sufficient to justify the refusal of the applicant's request to be

brought before the Court, given the importance one must generally

attach to the defendant's presence at a hearing in his case.  The

Supreme Court's decision not to allow the applicant's presence at the

appeal hearing, taken on the basis of a provision which permitted such

a refusal only in the case of detained persons, must therefore be

regarded as discriminatory within the meaning of Article 14 (Art. 14)

of the Convention.

 

203.    In view of this finding, the Commission does not consider it

necessary to deal separately with the applicant's further complaint

that he was also discriminated vis-à-vis the private parties insofar

as the determination of his civil rights at the appeal hearing was

concerned.

 

        Conclusion

 

204.    The Commission concludes, by ten votes to one with six

abstentions, that, in the appeal proceedings, there has been a

violation of Article 14 (Art. 14+6-1) read in conjunction with Article

6 paras. 1 and 3 (c) (Art. 6-3-c) of the Convention.

 

 

3.    Article 13 (Art. 13) of the Convention

 

205.    The applicant finally complains of the absence of an effective

remedy in respect of his complaints concerning the alleged lack of

adequate interpretation.  He invokes Article 13 (Art. 13) of the Convention

which provides as follows:

 

        "Everyone whose rights and freedoms as set forth in this

        Convention are violated shall have an effective remedy

        before a national authority notwithstanding that the

        violation has been committed by persons acting in an

        official capacity."

 

206.    However, Article 13 (Art. 13), as a more general guarantee, is

not applicable in cases where the more specific guarantees of Article

6 (Art. 6) apply, Article 6 (Art. 6) being the lex specialis in

relation to Article 13 (Art. 13). Its requirements are less strict and

accordingly absorbed by Article 6 (Art. 6).  The Commission here

refers to the constant case-law of the Convention organs (e.g.  Eur.

Court H.R., Silver and Others judgment of 25 March 1983, Series A no.

61, p. 41 para. 110; W v. the United Kingdom, Comm.  Report 15.10.85,

paras. 130-132 and Eur.  Court H.R. judgment of 8 July 1987, Series A

no. 121, p. 36 paras. 85-86; Pudas v.  Sweden, Comm.  Report 4.12.85,

para. 59 and Eur.  Court H.R. judgment of 27 October 1987, Series A

no. 125, p. 17 para. 43).

 

        &SConclusion&_

 

207.    The Commission concludes unanimously that no separate issue

arises under Article 13 (Art. 13) of the Convention in the present case.

 

 

E.      Recapitulation

 

208.    The Commission concludes

 

a)      as regards the Regional Court proceedings:

 

        -  by eleven votes to six that there has been no violation of

Article 6 para. 3 (a) (Art. 6-3-a) of the Convention (para. 145 );

 

        -  by fourteen votes to three that there has been no violation

of Article 6 para. 3 (b) (Art. 6-3-b) of the Convention (para. 150);

 

        -  unanimously that there has been no violation of Article 6

para. 3 (c) (Art. 6-3-c) of the Convention (para. 162);

 

        -  unanimously that there has been no violation of Article 6

para. 3 (d) (Art. 6-3-d) of the Convention (para. 166);

 

        -  by fifteen votes with two abstentions that there has been

no violation of Article 6 para. 3 (e) (Art. 6-3-e) of the Convention

(para. 181);

 

        -  by eleven votes to six that, in the proceedings of first

instance, there has been no violation of Article 6 para. 1 (Art. 6-1)

of the Convention (para. 183);

 

        - unanimously that there has been no violation of Article 6

para. 2 (Art. 6-2) of the Convention (para. 187);

 

b)      as regards the Supreme Court proceedings:

 

        - unanimously that, in the proceedings concerning the plea of

nullity, there has been a violation of Article 6 para. 1 (para. 195);

 

        - by ten votes to one with six abstentions that, in the appeal

proceedings, there has been a violation of Article 14 (Art. 14+6-1), read in

conjunction with Article 6 paras. 1 and 3 (c) (Art. 6-3-c) of the Convention

(para. 204);

 

c)      as regards the case as a whole:

 

        - unanimously that no separate issue arises under Article 13

(Art. 13) of the Convention in the present case (para. 207).

 

 

 

Secretary to the Commission                President of the Commission

 

 

 

     (H.C. KRÜGER)                             (C.A. NØRGAARD)

 

 

Separate opinion of Mr.  Trechsel, joined by Mr.  Vandenberghe

 

 

        I have abstained on the vote regarding the question of whether

there has been a violation of Article 14, read in conjunction with

Article 6 paras. 1 and 3 (c) of the Convention (para. 204).  In my

opinion it was the applicant's right to a fair trial, in particular

the right "to defend himself in person" which had been violated.  As

the applicant was going to be newly sentenced, he was also entitled to

be present in court.  Sentencing, under Austrian criminal law, is

based essentially upon an evaluation of the convicted person's guilt

which, in turn, is assessed having regard to his or her personality.

In my view, it was therefore not compatible with Article 6 para. 3 (c)

to bar the applicant from appearing personally before the Supreme

Court.

 

        Having found a violation of Article 6 itself, I do not find

that a separate issue arises under Article 14.

 

        I accept that discrimination could be regarded as an

aggravating circumstance, but the Convention system does not recognise

different degrees of violations of fundamental rights.

 

        I find my view confirmed by the wording of Article 14:

 

        "The enjoyment of the rights and freedoms ...

        shall be secured without discrimination ..."

 

        "La jouissance des droits et libertés ...

        doit être assurée, sans distinction aucune ..."

 

        I read these words as saying that Article 14 must be regarded

as an additional protective shield surrounding the other guarantees

and extending their scope.  As the Court stressed in the Belgian

Linguistic Case (judgment of 23 July 1968, Series A no. 6, p. 33),

"a measure which in itself is in conformity with the requirement of

the Article enshrining the right or freedom in question may ...

infringe this Article when read in conjunction with Article 14 for the

reason that it is of a discriminatory nature"; the Court added (loc. cit.

p. 34) that Article 14 can be regarded as "an integral part of each of

the Articles laying down rights and freedoms".

 

        I fully agree with this interpretation of Article 14 and

understand it as confirming my view that there cannot be a violation

of the independent right and Article 14 at the same time as this would

amount to finding a twofold violation of one and the same right.  It

would also be difficult to explain why discrimination was regarded as

constituting a separate violation when occurring in conjunction with

the violation of an independent Convention right, while it does not

amount to a violation when occurring in conjunction with a right not

guaranteed by the Convention.

 

        These considerations lead me to say that, in the present

case, no separate issue arises with regard to Article 14 in

conjunction with Article 6, which I hold to be violated in itself,

and I have therefore abstained.

 

Partly dissenting opinion of Mr.  Weitzel, Sir Basil Hall and Mrs.  Liddy

 

 

 

        We find ourselves unable to agree with the conclusion of the

majority that there was no violation of Article 6 para. 3 (a) or of

Article 6 para. 3 (b) of the Convention.

 

        Article 6 para. 3 (a) confers on everyone charged with a

criminal offence the minimum right "to be informed promptly, in a

language which he understands and in detail, of the nature and cause

of the accusation against him".  Article 6 para. 3 (b) is

complementary.  It gives the accused the minimum right "to have

adequate time and facilities for the preparation of his defence".

 

        On 16 February 1981 during a pretrial court session the

applicant was notified of the bill of indictment.  It was not

translated in writing then or later.  There is no direct evidence as

to the extent to which the bill of indictment was translated orally to

him at the hearing, though undoubtedly some explanation in English was

then given.

 

        It is in our view questionable whether an oral explanation

would in the context of this particular case have satisfied the

conditions of Article 6 para. 3 (a).  The purpose of the paragraph is

to ensure that the person charged has a full understanding of the

offence or offences with which he is charged, and of the facts which

it is alleged constitute that offence or those offences, so that he

may consider his defence.

 

        The indictment would have specified the offences of fraud on

several counts and misappropriation of which the applicant was accused

and have set out the facts alleged to have constituted these offences.

For the applicant to have understood its content and to have

considered what instructions he should give his counsel to meet the

allegations in it, an oral statement in English during pretrial

proceedings would hardly have sufficed.  Furthermore, even if,

contrary to our view, the provision would have been satisfied in this

case by oral information the evidence before the Commission does not

establish that on 16 February sufficiently full information of the

nature and cause of the accusation was given to the applicant.

 

        It may be that the essential points of the indictment were

translated at the beginning of the trial on 2 April 1981, but that

would not have met the requirement that the applicant should have been

informed "promptly".

 

        Article 6 para. 3 (a) and (b) taken together envisage that the

person charged shall receive the information promptly and after that,

and before his trial, he shall have had adequate time and facilities

for the preparation of his defence.

 

        As the information was not furnished, in a language which the

applicant understood, sufficiently early before the trial, in our

opinion the information cannot be considered to have been given

promptly.  Furthermore, the failure to give information promptly meant

that the applicant did not have adequate time and facilities for the

preparation of his defence, which in any case was made much more

difficult because of his lack of access to the court files.

 

        We note that the letter of 22 October 1981 from the United

States Embassy stated that the applicant and his defence counsel had

waived interpretation of the indictment at the hearing.  This would

not, we consider, have amounted to an effective waiver of the minimum

rights accorded by Article 6 paras. 3 (a) and (b) which relate to what

is to occur before the hearing.  We further note that according to the

findings of the Supreme Court the indictment was in part translated

orally so effect was not given to any waiver there may have been.

Indeed a waiver is not mentioned in the Supreme Court's judgment.

 

        Finally, we do not consider that the fact that defence counsel

was a qualified interpreter satisfies the Article.  As remarked above

the person charged must promptly be given sufficient information to

enable him fully to instruct counsel on his defence.  The

responsibility for furnishing the information in a language which the

accused understands cannot be shifted to defence counsel.

 

        For these reasons we conclude that there have been violations

of Article 6 para. 3 (a) and (b).  From that it must follow that the

accused did not have a fair hearing, so that there is also a

violation of Article 6 para. 1.

 

 

Partly dissenting opinion of Mr.  Vandenberghe, Mrs.  Thune and Mr.  Rozakis

 

 

        We agree with the opinion of Mr.  Weitzel, Sir Basil Hall and

Mrs.  Liddy insofar as they find a violation of Article 6 para. 3 (a)

of the Convention and also of Article 6 para. 1, as the applicant was

not given a fair trial.

 

        In reaching this conclusion, we are basing ourselves on the

reasons contained in their partly dissenting opinion on this point.

We would like to stress that the indictment was not at any time

translated in writing, which to our mind is of paramount importance.

A person charged must, in our opinion, always be given a full picture

of the offences with which he is charged as well as the facts.

 

        In our view this does not seem to have been the situation in

the applicant's case.

 

        As regards the alleged interference with Article 6 para. 3 (b),

we agree with the majority of the Commission that this part of the

complaint is to be rejected and refer to the reasons given in the

Report.

 

 

Separate opinion of Mrs.  Thune and Mrs.  Liddy

 

        We abstained on the vote regarding Article 6 para. 3 (e) of the

Convention.  Having concluded that there was a violation of Article 6

para. 3 (a) (cf. our above partly dissenting opinions), we did not

consider it necessary to express an opinion as to whether the same

combination of circumstances at the pretrial stage would give rise to

a violation of Article 6 para. 3 (e) as interpreted by the Court in

the case of Luedicke, Belkacem and Koc (judgment of 28 November 1978,

Series A no. 29).

 

 

APPENDIX I

 

 

 

 

HISTORY OF PROCEEDINGS

 

 

 

 

 

 

Date                            Item

 

______________________________________________________________________

 

 

6 November 1981                Introduction of the application

 

21 April 1982                   Registration of the application

 

 

Examination of Admissibility

 

 

30 May 1983                     Rapporteur's request for information

                                by the Government

 

25 July 1983                    Submission of information by the

                                Government

 

20 September

16,22 and 24 November,

2, 3 and 12 December 1983,      Submission of applicant's comments

and 15 February 1984

 

14 March 1984                   Commission's deliberations and

                                decision to invite the Government

                                to submit observations on the

                                admissibility and merits of the

                                application.

 

 

15 June 1984                    Submission of Government's observations

 

 

30 December 1984, and           Submission of applicant's observations

2 May 1985                     in reply

 

8 May 1985                     Commission's deliberations and

                                decision to declare the application

                                admissible

 

 

Examination of the Merits

 

 

1 October 1985                 Submission of Government's

                                observations on the merits

 

12 October 1985                 Consideration of state

                                of proceedings

 

3 March 1986                   Submission of applicant's observations

                                on the merits (dated 15 November 1985)

 

15 April 1986                   Submission of applicant's additional

                                observations on the merits

 

10 May 1986                     Consideration of state of

                                proceedings and decision to

                                request further information

                                from the Government

 

14 July 1986                    Submission of applicant's observations

 

15 July 1986                    Submission of Government's observations

 

11 October 1986                 Consideration of state of

                                proceedings

 

17 October 1986 and             Submission of applicant's additional

26 January 1987                 observations on the merits

 

2 March 1987                   Consideration of state of

                                proceedings and decision not to

                                hold an oral hearing

 

11 July 1987                    Consideration of state of

                                proceedings

 

 

11 December 1987                Consideration of state of

                                proceedings

 

7  March 1988                  Commission's deliberations on the

                                merits

 

13  April 1988                  Further deliberations on the merits

                                and final votes

 

5  May 1988                    Adoption of the Report.

 

 

 

Full & Egal Universal Law Academy