EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 22961/93
Ismail Ilhan
against
Austria
REPORT OF THE COMMISSION
(adopted on 9 April 1997)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-15)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-10)1
C.The present Report
(paras. 11-15)2
II.ESTABLISHMENT OF THE FACTS
(paras. 16-26)3
A.The particular circumstances of the case
(paras. 16-24)3
B.Relevant domestic law
(paras. 25-26)4
III.OPINION OF THE COMMISSION
(paras. 27-38)5
A.Complaint declared admissible
(para. 27)5
B.Point at issue
(para. 28)5
C.Article 6 of the Convention
(paras. 29-37)5
CONCLUSION
(para. 38)6
DISSENTING OPINION OF Mr. K. HERNDL
JOINED BY MM. B. CONFORTI and C. BÎRSAN7
APPENDIX:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF THE APPLICATION9
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 Turkish citizen, born in 1960 and resident in
Feldkirch. He was represented before the Commission by Mr. B. Graf, a lawyer
practising in Feldkirch.
3.The application is directed against Austria. The respondent Government
were represented by their Agent, Mr. F. Cede, Head of the International Law
Department at the Federal Ministry of Foreign Affairs.
4.The case concerns the applicant's complaint that, in criminal proceedings
against him, he was prevented from either defending himself in person or through
his counsel. The applicant invokes Article 6 of the Convention.
B.The proceedings
5.The application was introduced on 21 October 1993 and registered on 19
November 1993.
6.On 6 April 1995 the Commission (First Chamber) decided, pursuant to Rule
48 para. 2 (b) of its Rules of Procedure, to give notice of the application to
the respondent Government and to invite the parties to submit written
observations on its admissibility and merits.
7.The Government's observations were submitted on 28 June 1995 after an
extension of the time-limit fixed for this purpose. The applicant replied on 16
August 1995.
8.On 15 May 1996 the Commission declared the application admissible.
9.The text of the Commission's decision on admissibility was sent to the
parties on 29 May 1996 and they were invited to submit such further information
or observations on the merits as they wished. No such observations were
received.
10.After declaring the case admissible, the Commission, acting in accordance
with Article 28 para. 1 (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
11.The present Report has been drawn up by the Commission (First Chamber) in
pursuance of Article 31 of the Convention and after deliberations and votes, the
following members being present:
Mrs.J. LIDDY, President
MM.M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENI?
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs.M. HION
Mr.R. NICOLINI
12.The text of this Report was adopted on 9 April 1997 by the Commission and
is now transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
13.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.
14.The Commission's decision on the admissibility of the application is
annexed hereto.
15.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
16.On 3 November 1992 the Feldkirch District Court (Bezirksgericht), upon the
Public Prosecutor's demand for a stated penalty (Strafantrag) issued a penal
order (Strafverfügung) against the applicant in summary proceedings without
trial. The Court found that the applicant, on 17 August 1992, had, in passing a
parked vehicle, driven on the left side of the road with his car and had
collided with a motorcyclist, who had fallen down and had suffered a brain
concussion. The Court convicted the applicant of having negligently caused
bodily harm (fahrlässige Körperverletzung) and imposed a fine of 50 daily rates
of ATS 100 each (in case of default 25 days' imprisonment).
17.On 26 January 1993, upon the applicant's objection (Einspruch), a trial
was held before the Feldkirch District Court. The applicant did not appear. The
Court, referring to S. 459 of the Code of Criminal Procedure
(Strafprozeßordnung), decided that the trial be held in the absence of the
applicant. It heard H., who had been injured in the traffic accident, as a
witness. H. stated that the applicant, in order to pass a parking car, had
driven on the left side of the road.
18.Following the trial, the Court passed a judgment in absentia
(Abwesenheitsurteil), convicting the applicant of having negligently caused
bodily harm and imposing a fine of 50 daily rates of ATS 100 each (in case of
default 25 days' imprisonment). However, it suspended the sentence on probation.
The Court referred to the police investigations, in particular to the
applicant's statement before the police, noting that he himself had admitted
that he had driven too far on the left side of the road, and to the
corroborating statement of the witness H.
19.On 22 March 1993 the applicant lodged an objection (Einspruch) against the
judgment in absentia. He submitted in particular that the trial should not have
been conducted in his absence, as he had not been duly summoned. In these and
the following proceedings the applicant was represented by counsel.
20.Thereupon, the Feldkirch District Court fixed 18 May 1993 as date for
rehearing the case. The applicant was summoned by a standard-form letter
entitled 'Personal summons of the accused to trial'. The standard text informed
him that he was to be heard by the court as an accused and was, therefore,
requested to appear at the trial at the date and place indicated. Further the
following sentence was added to the standard text: 'Should you fail to appear at
the trial, your appeal will be void and the judgment in absentia will become
final'. At the bottom of the page, the standard-form letter contained some
instructions. They informed the applicant, inter alia, that he had the right to
appoint a counsel and that, should he fail to appear at the trial, the hearing
would be conducted in his absence or he would be brought before the judge by the
police.
21.On 18 May 1993 the Feldkirch District Court, in presence of the
applicant's counsel, noted that the applicant himself had not appeared and
decided on the basis of S. 478 para. 3 of the Code of Criminal Procedure that
the applicant's objection against the judgment in absentia was to be considered
void and that this judgment become final. It considered in particular that the
applicant had been duly summoned for the trial of 18 May 1993 and that the
summons had drawn his attention to the consequences of his absence.
22.On 8 July 1993 the applicant filed an appeal (Beschwerde) against this
decision. He submitted in particular that it had not been absolutely clear to
him that he had to appear personally before the court. Although the summons
requested him to appear at the trial, neither the sentence added to the standard
text, nor the instructions, requested that he appear in person. On the contrary,
the said instructions informed him that he had the right to appoint a counsel
and that, should he fail to appear, the trial might be conducted in his absence
or he might be brought before the judge by the police. Thus, he could assume
that the presence of his counsel at the trial would be sufficient. Moreover,
being a Turkish national, he was not familiar with legal German. Finally, the
applicant complained that S. 478 para. 3 of the Code of Criminal Procedure was
contrary to the requirements of a fair trial as it discriminated against an
accused who had already been convicted in absentia.
23.On 16 July 1993 the applicant, on the Feldkirch Regional Court's
(Landesgericht) request, submitted the original of the summons at issue.
24.On 21 July 1993 the Feldkirch Regional Court dismissed the applicant's
appeal. The court found that the summons had been duly served on the applicant
and had explicitly drawn his attention to the consequences of his absence at the
trial. It followed from the title of the summons and the additional sentence as
well as from the nature of a summons that he was requested to appear personally
before the court. Moreover, he had not been prevented from doing so by
circumstances beyond his control. As regards the applicant's complaint that S.
478 para. 3 of the Code of Criminal Procedure was discriminatory, the court
noted that the accused had to be warned explicitly about the consequences of his
absence. Thus, the sanction provided for in the contested provision was
objectively justified and was, therefore, in accordance with the requirements of
a fair trial.
B.Relevant domestic law
25.S. 459 of the Code of Criminal Procedure (Strafprozeßordnung) deals with
the case in which the accused, who has been duly summoned, does not appear in
proceedings before the district court. It provides that the judge, if he deems
it necessary to hear the accused, may order that he appear personally or, if the
accused has already been ordered to do so, that he be brought before the court.
Otherwise, the judge may start the proceedings, take evidence and, after having
heard the prosecutor, give his judgment, which has to be served on the accused.
26.According to S. 478 the accused, who has been convicted in absentia in
accordance with S. 459, can lodge an objection (Einspruch) within two weeks
after service of the judgment, if he has not been duly summoned, or if he has
been prevented to appear by circumstances beyond his control (paragraph 1). In
case the district court finds that the objection is well-founded, it has to fix
a date for a new trial. If the accused does not appear, his objection is to be
considered void and the contested judgment in absentia becomes final (paragraph
3).
III.OPINION OF THE COMMISSION
A.Complaint declared admissible
27.The Commission has declared admissible the applicant's complaint that, in
criminal proceedings against him, he was prevented from defending himself either
in person or through his counsel.
B.Point at issue
28.The point at issue is whether there has been a violation of Article 6
para. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention.
C.Article 6 (Art. 6) of the Convention
29.The applicant complains under Article 6 (Art. 6) of the Convention that,
at the trial of 18 May 1993 which had been fixed for rehearing his case after
his conviction in absentia, he was prevented from either defending himself in
person or through his counsel.
30.Article 6 (Art. 6) of the Convention, so far as relevant, reads as
follows:
"1.In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3.Everyone charged with a criminal offence has the following minimum
rights:
...
c.to defend himself in person or through legal assistance of
his own choosing ... "
31.The applicant submits that S. 478 para. 3 of the Code of Criminal
Procedure prevented his counsel from presenting his defence at the trial on 18
May 1993. Thus, the arguments of the defence unlike the arguments of the
prosecution were not heard at all in the criminal proceedings against him. He
maintains that it was not clear from the summons that he had to appear
personally at the trial. Moreover, the applicant considers that the requirement
of his personal presence, in addition to his counsel's presence, is contrary to
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention. He concedes that the
presence of the accused may be of considerable importance in criminal
proceedings. However, the requirement that he be adequately defended is decisive
for their fairness. Thus, the fact that he did not appear at the trial on 18 May
1993 cannot justify that he was deprived of his right to be defended by counsel.
32.The Government submit that Article 6 para. 3 (c) (Art. 6-3-c) envisages
the presence of a defence counsel in addition to the accused, but not the
representation of an absent client by the defence counsel. Moreover, in criminal
proceedings the requirements in respect of the right and the obligation to
participate in the trial are more stringent than in civil proceedings. Thus, the
Code of Criminal Procedure may, by penalizing his absence, require the accused
to be personally present. According to the Government, S. 478 para. 3 of the
Austrian Code of Criminal Procedure is an objectively justified measure which is
in compliance with the requirements of a fair trial. They argue in particular
that the applicant was duly summoned to the trial on 18 May 1993 and was clearly
informed of the consequences of his absence.
33.The Commission recalls that the requirements of paragraph 3 of Article 6
(Art. 6-3) to be seen as particular aspects of the right to a fair trial
guaranteed by paragraph 1. It will, therefore, examine the complaint under both
provisions taken together (see Eur. Court HR, Lala v. the Netherlands judgment
of 22 September 1994, Series A no. 297-A, p. 12, para. 26; Pelladoah v. the
Netherlands judgment of 22 September 1994, Series A no. 297-B, p. 33, para. 33).
34.The Commission notes in the first place that the applicant did not attend
the hearing on 18 May 1993 in person. He submits that he considered that his
counsel's presence would be sufficient. The Commission, therefore, finds that
the applicant has not availed himself of his right to defend himself in person.
Thus, it remains to be ascertained whether counsel for the applicant was in a
position to conduct his defence.
35.The Commission recalls that it is of crucial importance for the fairness
of the criminal justice system that the accused be adequately defended, whereby
this interest prevails over the interest that the accused should appear at his
trial. Thus, the fact that the defendant, in spite of having been properly
summoned, does not appear, cannot - even in the absence of an excuse - justify
depriving him of his right under Article 6 para. 3 (Art. 6-3) of the Convention
to be defended by counsel (Lala judgment, loc. cit., p. 13, para. 33; Pelladoah
judgment, loc. cit., p. 34, para. 40).
36.In the present case, the Feldkirch District Court convicted the applicant
in absentia on 26 January 1993. In these proceedings he was not represented by
counsel. Upon the applicant's objection, 18 May 1993 was fixed for rehearing the
case. At the trial counsel for the defence appeared, but not the applicant
himself. Thereupon, the District Court, noting that the applicant had been duly
summoned, decided in accordance with S. 478 para. 3 of the Austrian Code of
Criminal Procedure that the applicant's objection was to be considered void and
that the judgment in absentia of 26 January 1993 become final. Given this legal
situation, there was no room for the applicant's counsel to conduct his defence.
Moreover, the Commission notes that the rehearing, under domestic law, was the
last instance where the case could be fully examined as to questions of fact and
law.
37.For these reasons, the Commission finds that the applicant did not have a
fair hearing in the criminal proceedings against him, in particular as, at the
trial for rehearing his case after his conviction in absentia, he was deprived
of his right to be defended by counsel.
CONCLUSION
38.The Commission concludes, by 13 votes to 3, that in the present case there
has been a violation of Article 6 para. 1 taken together with Article 6 para. 3
(c) (Art. 6-1+6-3-c) of the Convention.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamberof the First Chamber
(Or. English)
DISSENTING OPINION OF Mr. K. HERNDL
JOINED BY MM. B. CONFORTI and C. BÎRSAN
It is with regret that I am obliged to state that I cannot concur with the
views expressed by the majority of my distinguished colleagues of the
Commission, who held that in the present case Article 6 para. 1 taken together
with Article 6 para. 3 (c) of the Convention has been violated.
The following are my reasons for dissenting from the majority.
In determining that the applicant "did not have a fair hearing in the
criminal proceedings against him, in particular as, at the trial for rehearing
his case after his conviction in absentia, he was deprived of his right to be
defended by counsel" (para. 37 of the report) the majority rely heavily if not
exclusively on the judgments of the Court in the cases of Lala v. the
Netherlands (Series A, No. 297-A) and Pelladoah v. the Netherlands (Series A,
No. 297-B). They base their view in particular on the Court's dictum in those
cases to the effect that "the fact that the defendant, in spite of having been
properly summoned, does not appear, cannot - even in the absence of an excuse -
justify depriving him of his right under Article 6 para. 3 of the Convention to
be defended by counsel" (Lala judgment, loc. cit., para. 33, Pelladoah judgment,
loc. cit., para. 40). The present case, however, differs from the Lala and
Pelladoah cases in several important aspects.
While Lala and Pelladoah had been convicted in absentia and appealed to
the higher court (and in the last analysis even to the Supreme Court) we are
dealing here only with a first instance case which, so to speak, went through
two stages. It must be emphasized that the applicant's complaint concerns
exclusively the procedure before the trial court, ie. the Feldkirch District
Court and not the subsequent appeal proceedings before the higher court, ie. the
Feldkirch Regional Court.
What then are the basic facts of the case? The applicant was summoned to
stand trial before the Feldkirch District Court on 26 January 1993 for a minor
offence. It was at this stage that the applicant had the possibility of being
present and defending himself personally or of defending himself through legal
assistance of his own choice, as provided for in Article 6 para. 3 (c) of the
Convention. At the trial hearing, neither the applicant nor his legal
representative appeared. Accordingly, the applicant was sentenced in absentia on
the basis of S. 459 of the Code of Criminal Procedure. Thereupon, the applicant
seized the trial court, ie. the same court, with an objection against the
judgment in absentia alleging that he had not been properly summoned to the
hearing. As the Commission notes in its report (para. 19) in these proceedings
the applicant was represented by counsel. In fact, it was the applicant's
counsel who drafted and signed the objection on the applicant's behalf.
The trial court ordered another hearing for 18 May 1993. In summoning the
applicant to that hearing, the court explicitly drew his attention to the fact
that if he were not to appear at the hearing, his objection would have to be
considered as void and the contested judgment in absentia would become final.
This legal consequence in case of non-appearance of the accused is provided for
by S. 478 (3) of the Code of Criminal Procedure.
It is uncontested that the applicant was properly summoned to the hearing
of 18 May 1993. The summons was indeed received by the applicant's counsel as is
shown by the latter's presence at the hearing. Although the legal consequences
of any absence of the applicant were clear to the applicant's counsel, and hence
to the applicant himself, the applicant did not appear at the hearing. The
inescapable result, entirely foreseeable for the applicant's counsel, and hence
the applicant himself, was that his objection had to be declared void whereupon
the original judgment in absentia became final by virtue of S. 478 (3) of the
Code of Criminal Procedure.
I believe that this result, unfortunate as it may be for the applicant, is
primarily imputable to the conduct of the applicant and his legal representative
for which the Republic of Austria cannot be held responsible. The applicant had
all means at his disposal to defend himself in person or through counsel at the
hearing of 26 January 1993, and subsequently to contest the judgment in
absentia. He furthermore enlisted the help of an experienced counsel whose duty
it was to explain the legal situation to him.
The fact that domestic law in such a case would insist on the personal
presence of the accused at the hearing and would make his personal presence a
condition for the legal evaluation of an objection against a judgment in
absentia (S. 478 (3) of the Code of Criminal Procedure), cannot be said to be in
violation of Article 6 of the Convention and in particular para. 3 (c) of that
Article. On the contrary: the importance which the domestic law in such a case
attaches to the personal presence of an accused would seem to be completely in
line with the basic tenets of Article 6.
Nor would the sanction for non-appearance - namely considering as void an
objection such as the one lodged by the applicant - seem to be disproportionate
if one takes into account the essential element of Article 6, namely that the
accused ought to be present in person at Court hearings in criminal cases.
The applicant and in particular his lawyer were fully aware of the legal
consequences of a non-appearance at that stage of the proceedings, but
apparently had made their choice. In view of this I cannot see that the decision
of the Feldkirch District Court to declare the applicant's objection void, was
in violation of Article 6 para. 1 taken together with Article 6 para. 3 (c) of
the Convention.
Full & Egal Universal Law Academy