Information Note on the Court’s case-law No.
September 1993
Kremzow v. Austria - 12350/86
Judgment 21.9.1993
Article 6
Article 6-1
Fair hearing
Equality of arms
Article 6-3-c
Defence in person
Fairness of appeal and nullity proceedings before the Supreme Court: violation, no violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.SCOPE OF THE CASE
The Court has jurisdiction to examine a complaint which had not been examined by the Commission, namely that there had been a violation of Article 6 § 2 of the Convention.
II.GOVERNMENT'S PRELIMINARY OBJECTIONS (NON-EXHAUSTION OF DOMESTIC REMEDIES)
Government's arguments closely linked to the well-foundedness of the applicant's complaints under Article 6 § 3 (c) of the Convention.
Conclusion: objections joined to the merits (unanimously).
III.ARTICLE 6 OF THE CONVENTION
A.Article 6 § 1 in conjunction with paragraph 3 (b)
1.Attorney General's position paper
The "croquis" of forty-nine pages was served on counsel some three weeks before the date fixed for the oral hearing - thus he had "adequate time and facilities" to formulate his response.
2.Refusal to inspect file
Restriction of the right to inspect the court file to an accused's lawyer is not incompatible with the rights of the defence under Article 6.
3.Notification of decision concerning appearance at hearing
No indication that the notification of the Supreme Court's decision on the day of the hearing unduly hampered the defence in the preparation of its case.
Conclusion: no breach in respect of (1), (2) and (3) (unanimously).
B.Article 6 § 1 in conjunction with paragraph 3 (c)
1.Attendance at the hearing of the pleas of nullity
Under Austrian law, the Supreme Court, in dealing with nullity proceedings, is primarily concerned with questions of law. Taking into consideration that the applicant was legally represented, neither paragraph 1 nor 3 (c) of Article 6 required his presence in such proceedings.
In the light of this conclusion, not necessary to deal with the preliminary objection in so far as it relates to this complaint.
Conclusion: no breach (unanimously).
2.Attendance at the hearing of the appeals against sentence
The Supreme Court examined whether the sentence should be increased from twenty years to life imprisonment and whether it should be served in a normal prison instead of a special institution for mentally deranged offenders - proceedings were thus of crucial importance for the applicant and involved not only an assessment of his character and state of mind at the time of the offence but also his motive - given the gravity of what was at stake, the applicant ought to have been able "to defend himself in person" and the State was under a positive duty, notwithstanding his failure to make a request, to ensure his presence in court in such circumstances. Accordingly, no failure to exhaust domestic remedies in this regard.
Conclusion: breach (unanimously).
C.Preparation of the draft judgment prior to the Supreme Court's hearing
A draft judgment prepared in advance and then discussed informally by members of the Chamber need not in any way bind the Supreme Court or preclude it from amending the draft and reaching a different view after hearing the parties.
D.Complaints concerning equality of arms
Not in dispute that there is no time-limit for the submission of the Attorney General's position paper. The defence was not in any way prejudiced by the difference in this regard.
Not denied by the Government that the name of the judge rapporteur was wrongfully disclosed to the Attorney General's office. This in itself cannot render the proceedings unfair.
No evidence whatsoever that a copy of the draft judgment was forwarded to the Attorney General's office.
Conclusion: no breach in respect of C and D (unanimously).
E.Article 6 § 2
The applicant had already been found guilty of murder and the Supreme Court's remarks that he had been guilty of "financial misdeeds" related solely to the question of his motive for the offence - such a reference cannot be construed as a finding that he was guilty of a specific offence.
Conclusion: no breach of the presumption of innocence (unanimously).
IV.ARTICLES 13 AND 14 OF THE CONVENTION
In view of the Court's finding of a violation concerning the applicant's absence at the hearing of the appeals, not necessary to examine his allegation of a breach of Article 14 in conjunction with Article 6.
Remaining complaints not the subject of any written or oral submissions by the applicant in the proceedings before the Court - the Court does not consider these complaints to have been maintained and sees no reason to examine them ex officio.
Conclusion: not necessary to examine complaints (unanimously).
V.ARTICLE 50 OF THE CONVENTION
Applicant limited his claim to costs and expenses in respect of the Strasbourg proceedings - claim upheld in part.
Conclusion: Austria to pay the applicant specified sums in respect of costs and expenses (unanimously).
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This summary by the Registry does not bind the Court.
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