AS TO THE ADMISSIBILITY OF
Application No. 16493/90
by K.P.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 1 September 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
N. BRATZA
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 March 1990 by
K.P. against Austria and registered on 23 April 1990 under file No.
16403/90;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
22 May 1992 and the observations in reply submitted by the
applicant on 13 July 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1946. He lives in
Seyring and is represented before the Commission by Mr. K. Bernhauser,
lawyer, of Vienna.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant was convicted on 18 July 1989 by the Korneuburg
District Court (Kreisgericht) of various smuggling offences. He was
ordered to pay a fine of AS 80,000 with three weeks' detention in
default. The Korneuburg prosecuting authority (Staatsanwaltschaft) and
the Vienna customs authority (Zollamt) appealed against the sentence.
In accordance with Article 294 para. 5 of the Code of Criminal
Procedure (Strafprozeßordnung) the applicant, who was at liberty, was
summoned to appear at the appeal hearing. From 6 March 1990 until
16 May 1990, the applicant was detained on remand in connection with
offences not related to the present application. The applicant's
lawyer states that some days before the appeal hearing, the applicant's
then lawyer telephoned the office of the Vienna Court of Appeal
(Oberlandesgericht), requesting that arrangements should be made for
the applicant to appear at the hearing. The Government point out that
no record of any such conversation exists in the case-file. At the
hearing on 12 March, which the applicant's lawyer attended according
to a file note of the applicant's lawyer of 14 March 1990, the Court
was put on notice that the applicant was in detention on remand.
According to the applicant, the hearing proceeded without him. The
Government refer to the record, which states that the applicant was
present.
At the end of the hearing, the Court of Appeal increased the fine
imposed on the applicant to AS200,000 with two months' detention in
default.
On 30 September 1991 the applicant made a request for the record
of the appeal hearing to be amended. The request was denied on 14
October 1991, the Vienna Court of Appeal finding, inter alia, as
follows:
"According to the contents of the record of the appeal hearing
... [the applicant] was also present at that hearing. It cannot
be concluded from the contents of the record of the appeal
hearing whether he was produced from detention on remand that had
been imposed on him in another case.
The submission by the prison management of 27 September 1991 only
states that he was detained on remand from 6 March 1990 until 16
May 1990, that he was served no summons for the appeal hearing
(because he had already received it) and - as the prison
management's records show - that the [applicant] was not produced
for the appeal hearing, although the question remains open
whether the prison management's records are complete."
COMPLAINTS
The applicant complains that the sentence in his case was
increased on the prosecution's appeal and in his absence. He alleges
a violation of Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 March 1990 and registered
on 23 April 1990.
On 13 January 1992 the Commission decided to communicate the
application to the respondent Government. The Government submitted
their observations on 22 May 1992 and the applicant submitted his
observations in reply on 13 July 1992.
THE LAW
The applicant alleges a violation of Article 6 (Art. 6) of the
Convention in that he was not present at his appeal hearing, on which
occasion his sentence was increased.
Article 6 (Art. 6) of the Convention provides, so far as
relevant, as follows:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The Government underline that the applicant knew of the date of
the appeal hearing but made no request to the prison authorities where
he was detained for permission to attend, that there is no confirmation
that his representative asked for him to be present before the hearing
or when the hearing began, and that although a request was made
(belatedly) for the appeal record to be amended to indicate that the
applicant was not present, no request was made for the addition to the
record of a request for him to attend. They consider that Article 6
(Art. 6) did not, in any event, require the applicant's attendance at
the appeal hearing in the present case as the applicant was able to
make, in writing and before the hearing, any comments he had on the
prosecutor's appeal, and as he was represented by a lawyer who did
attend the hearing.
The applicant repeats that the lawyer who attended the appeal
hearing confirms that he told the court that the applicant was
detained. He considers that there was no need for him to request the
prison authorities for permission to attend as his lawyer was dealing
with the matter. The applicant contests that the decision for the
Vienna Court of Appeal was one which could simply be dealt with on the
papers. He points out that questions of sentencing require the
sentencing court to form its own impression of the defendant.
The Commission first recalls that Article 6 (Art. 6) of the
Convention applies to proceedings relating to an appeal against
sentence such as that in the present case (cf. Eur. Court H.R.,
Kamasinski judgment of 19 December 1989, Series A no. 168, p. 44 para.
106, where, due to the nature of the charges, the appeal against
sentence was to the Supreme Court, and No. 12350/86, Kremzow v.
Austria, Comm. Rep. 20.5.92, pending before the European Court of Human
Rights, paras. 90 - 102, also concerning proceedings before the Supreme
Court). The Commission observes, however, that the factual background
to the present case is fundamentally different from that in that
Kremzow case. In that case the applicant fell under the limb of
Article 296 para. 3 of the Code of Criminal Procedure
(Strafprozeßordnung) which deals with defendants who are detained. The
present applicant who was at liberty at the
time, was summoned under the other limb relating to defendants who are
at liberty. It remains in principle for a defendant summoned whilst
at liberty to decide for himself whether he wishes to attend the appeal
hearing or not.
The Commission notes that there is disagreement in the present
case as to the facts. The Government consider that the applicant has
not established that he made the requests he claims, and that he was
actually present at the hearing; the applicant maintains the contrary.
The Commission has taken note of the comments of the prison
authorities, of the other defendants and of the representative of one
of those defendants and considers that the applicant was not in fact
present at the appeal hearing on 12 March 1990.
The Commission next finds that it cannot be said that the
applicant indicated any particular desire to attend the appeal hearing.
The representative who attended court on 12 March 1990 states that he
informed the court that the applicant was in detention on remand, but
he does not hint that the applicant wished to attend, or that he so
informed the court. Moreover, whilst an application was made for the
record to be amended to exclude reference to the applicant's presence,
none was made for the addition of the alleged request for the applicant
to be brought to the hearing. Finally in this respect, the Commission
notes that the applicant knew of the date of the hearing, and it might
have been expected that he would mention the matter to the prison
authorities if he had any desire to attend.
In the unusual circumstances of the present case, that is where
a defendant is initially informed of the date of an appeal hearing on
the footing that he is not in detention, and is subsequently detained
in connection with other matters with the result that he never received
the information provided to a defendant who is detained throughout, the
Commission finds that an applicant who is fully aware of the date of
his appeal hearing, and also is represented throughout, but who fails
to evince interest in that appeal hearing, cannot subsequently complain
if the hearing proceeds in the presence of the lawyer, but not the
applicant.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy