AS TO THE ADMISSIBILITY OF
Application No. 32054/96
by Ahmet SAGIR
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 12 June 1996 by
Ahmet SAGIR against Austria and registered on 27 June 1996 under file
No. 32054/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1964, is a Turkish citizen residing in
Hohenems. He is presently detained in a prison. Before the Commission
the applicant is represented by Mr. W.L. Weh, a lawyer practising in
Bregenz.
The facts as submitted by the applicant may be summarised as
follows.
A. Particular circumstances of the case
On 19 April 1995 a bench of the Feldkirch Regional Court
(Landesgericht), sitting with two professional judges and two lay
judges found the applicant guilty of having twice attempted to sell 750
grammes of heroin, and of having falsely pretended that he had been
ill-treated by two police officers while in police custody. It
convicted the applicant of an offence under the Narcotic Drugs Act
(Suchtgiftgesetz) and of defamation and sentenced him to three and a
half years' imprisonment.
The Regional Court found it established that the applicant had
attempted to sell heroin in a quantity considered as large under the
Narcotic Drugs Act to S. and to M.G., who - in the same proceedings -
was convicted of several drug offences. In its assessment of evidence
the court relied, in particular, on the confession of the co-accused
Y.Y., who had acted as a middleman between the applicant and the
prospective buyers. The court did not accept the applicant's defence
according to which the subject of the deal had been weapons and not
drugs, but considered this account as being in contradiction with,
inter alia, the extensive telephone recordings made by the police. The
Regional Court further considered that on 21 June 1994 the applicant
had made a confession before the police and that on 22 June 1994 he had
given further details of the heroin deal. The Regional Court noted
that before the investigating judge the applicant had denied any
involvement in heroin trafficking, but - when confronted with his
statements before the police - could not give any explanation for the
discrepancies in his accounts. Only after the formal questioning had
he told the investigating judge that he had been ill-treated by the
police officers when making his first confession. Relying on the
evidence given by the investigating judge and two police officers, the
Regional Court found that the applicant's account of his alleged ill-
treatment was inconsistent and contradictory.
As to the charge of defamation the Regional Court - referring to
the testimonies of the police officers and the investigating judge -
found that the applicant had wrongly and knowingly accused the two
police officers of abuse of authority (Amtsmißbrauch) and had exposed
them to the risk of prosecution by the authorities by making the
following statement:
"I made the statements of 21 June and 22 June 1994, because I was
hit and ill-treated in such a manner that I had to give up and
said, write whatever you like. ... then two policemen came and
gave me a punch and called me a "pig". I told them that I had
not done this, whereupon they gave me further punches. This
happened while I was being questioned. As a consequence of these
punches my gums were bleeding."
In fixing the applicant's sentence the Regional Court considered
as aggravating factors the concurrence of an offence under the Narcotic
Drugs Act and the offence of defamation; the repeated violation of the
Narcotic Drugs Act; the high quantity of drugs concerned; a previous
conviction for having negligently caused bodily harm; the fact that two
civil servants had been defamed and that the applicant had acted for
the purpose of gain. It considered as mitigating that the applicant
had only attempted to commit offences under the Narcotic Drugs Act and
that he had partly made - though later withdrawn - a confession.
On 31 July 1995 the applicant represented by legal aid defence
counsel filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal
(Berufung). Under the heading "nullity" (Nichtigkeit) he submitted as
a ground of nullity, inter alia, that the court's reasoning regarding
the possession and the quantity of heroin was contradictory,
insufficient, unclear and not corroborated by the files. Under the
heading "appeal against the finding of guilt" (Berufung wegen des
Ausspruches über die Schuld) he submitted that the Regional Court had
incorrectly assessed the evidence and wrongly stated the facts, in
particular, as concerns the possession and the quantity of heroin. As
regards his conviction of defamation he submitted that he had made this
statement in the exercise of his defence rights and that it was
improbable that the police officers would have been prosecuted. Under
the heading "appeal against the fixing of the sentence" (Berufung wegen
des Ausspruchs über die Strafe) he argued that the Regional Court had
wrongly assessed the aggravating circumstances and had not duly taken
into account further mitigating circumstances.
On 12 December 1995 the Supreme Court, in a judgment of 30 pages,
dismissed the applicant's plea of nullity and appeal as regards the
sentence. It rejected as inadmissible the applicant's appeal from
guilt on the ground that no such remedy laid against judgment of a
court sitting with a bench.
B. Relevant domestic law
The Austrian Code of Criminal Procedure provides in case of
conviction or acquittal for a review of a judgment by one higher
instance. In case of conviction by the bench of a Regional Court
(normally composed of two professional judges and two lay judges) or
a Court of Assizes (Geschworenengericht) a convicted person may file
a plea of nullity (Nichtigkeitsbeschwerde) to have the lawfulness of
the trial and the criminal proceedings reviewed and an appeal
(Berufung) to have the sentence reviewed (SS. 280, 281 and 283). A
review of the assessment of evidence (Beweiswürdigung) is not provided
for in such proceedings. A plea of nullity is decided upon by the
Supreme Court, an appeal by the Court of Appeal unless the Supreme
Court decides to deal at the same time with a plea of nullity and an
appeal (SS. 280, 296).
In case of conviction by a District Court or by a Regional Court
sitting with a single judge (Einzelrichter) the remedy against the
conviction is an appeal to the Regional Court or the Court of Appeal
respectively (SS. 463, 489). The Code of Criminal Procedure
distinguishes between an appeal for nullity (Nichtigkeitsberufung) in
order to have - as in proceedings on a plea of nullity - the lawfulness
of the trial and the criminal proceedings reviewed, an appeal on the
question of guilt (Schuldberufung) to have the assessment of evidence
reviewed and an appeal against the sentence (Strafberufung) to have the
sentence reviewed (S. 464).
COMPLAINTS
The applicant complains under Article 6 of the Convention that
his conviction for defamation constituted a violation of his rights of
defence as guaranteed under Article 6 para. 3 (c) of the Convention.
He submits that even if his allegations remained unproven, his
conviction for defamation amounted to a violation of his defence rights
as he had made this statement in order to present his personal view of
the events during his questioning by the police.
The applicant complains under Article 6 para. 3 (c) that the
Supreme Court had failed to duly advise the applicant's legal aid
defence counsel on the reasons to be advanced in a plea of nullity.
The applicant claims that due to this failure the legal aid defence
counsel filed an appeal on the question of guilt which was rejected as
formally inadmissible.
The applicant complains that the Regional Court did not respect
the principle of ne bis in idem as guaranteed under Article 4 of
Protocol No. 7. He submits that in fixing the applicant's sentence the
Regional Court took several aggravating circumstances into account
which were a constitutive element of the drug offence itself.
THE LAW
1. The applicant complains in various respects about the alleged
unfairness of the criminal proceedings conducted against him. He
relies on Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
As the requirements of paragraph 3 of Article 6 (Art. 6-3) are
to be seen as particular aspects of the right to a fair trial
guaranteed by paragraph 1, the Commission will examine these
submissions of the applicant from the angle of paragraph 1 taken
together with the principles inherent in paragraph 3 of Article 6
(Art. 6-3) (Eur. Court HR, Unterpertinger v. Austria judgment of 24
November 1985, Series A no. 110, p. 14, para. 29; Daud v. Portugal
judgment of 21 April 1998, para. 33, to be published in Reports 1998).
Article 6 (Art. 6) of the Convention, insofar as relevant, read
as follows:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing ...
...
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 or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require"
a. The applicant submits that his conviction for defamation violated
his defence rights guaranteed by Article 6 para. 3 (c) (Art. 6-3-c) of
the Convention as he had made this statement in order to present his
personal view of the events during his questioning by the police.
The Commission recalls that it would be overstraining the concept
of the right of defence of those charged with a criminal offence if it
were to be assumed that they could not be prosecuted, when in
exercising that right, they intentionally arouse false suspicions of
punishable behaviour concerning a witness or any other person involved
in the criminal proceedings (Eur. Court HR, Brandstetter v. Austria
judgment of 28 August 1991, Series A no. 211, p. 23, para. 52).
The Commission notes that the applicant was convicted by the
Regional Court of having wrongly stated during the criminal proceedings
conducted against him for drug trafficking that he had been ill-treated
while in police custody.
Having regard to these circumstances the Commission finds no
reason to depart from the Court's case-law. Accordingly, there is no
appearance of a violation of the applicant's defence rights in this
respect.
b. The applicant submits further that he was not granted effective
legal assistance within the meaning of Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention as the Supreme Court had failed to duly
advise the applicant's legal aid defence counsel on the reasons to be
advanced in a plea of nullity. Due to this failure the legal aid
defence counsel filed an appeal on the question guilt which was
rejected as formally inadmissible.
The Commission recalls that "a State cannot be held responsible
for every shortcoming on the part of a lawyer appointed for legal aid
purposes" (Eur. Court HR, Artico v. Italy judgment of 13 May 1980,
p. 18, para. 36). Article 6 para. 3 (c) (Art. 6-3-c) only requires
that the competent national authorities intervene, if a failure by
legal aid counsel to provide effective representation is manifest or
sufficiently brought to their attention in some other way (Kamasinski
v. Austria judgment of 19 December 1989, p. 33, para. 65).
The Commission notes that the applicant, represented by a legal
aid defence counsel, filed a plea of nullity and an appeal in which,
in a separate section, he does set out an "appeal on the question of
guilt". In his writ the applicant's defence counsel set out various
grounds for having the conviction quashed or the sentence reduced. In
its detailed judgment of 12 December 1995 the Supreme Court dismissed
the applicant's plea of nullity and his appeal (against the sentence)
after having examined the arguments put forward by the applicant's
lawyer. Only the "appeal on the question of guilt" was rejected as
inadmissible as in the proceedings at issue this specific remedy could
not be used (see above "Relevant domestic law").
The Commission cannot find that the mere fact the applicant's
defence counsel had in addition to the correct remedies against the
Regional Court's judgment of 19 April 1994, namely plea of nullity and
appeal, also used an inappropriate remedy in the proceedings at issue
should have prompted the Supreme Court to find that there was a
manifest failure by legal aid defence counsel to provide effective
representation (see Eur. Court HR, Daud v. Portugal judgment, op. cit.,
para. 38). The applicant has not alleged any further shortcoming in
his defence.
Accordingly there is no appearance of a violation of the
applicant's defence rights in this respect.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Lastly the applicant complains that the Regional Court did not
respect the principle of ne bis in idem as guaranteed under Article 4
of Protocol No. 7 (P7-4). He submits that in fixing the applicant's
sentence the Regional Court took several aggravating circumstances into
account which were a constitutive element of the drug offence itself,
such as the amount of the heroin attempted to be sold and that he had
acted for gain.
Article 4 para. 1 Protocol No. 7 (P7-4-1) reads as follows:
"1. No one shall be liable to be tried or punished again in
criminal proceedings under the jurisdiction of the same State for
an offence for which he has already been finally acquitted or
convicted in accordance with the law and penal procedure of that
State."
The Commission observes that the applicant has not raised this
issue in his plea of nullity. In this respect the Commission recalls
that in order to have exhausted domestic remedies as required by
Article 26 (Art. 26) of the Convention, an applicant must have
expressly raised before the national authorities the complaint brought
before the Commission (No. 11425/85, Dec. 5.10.87, D.R. 53, p. 76).
However, the Commission need not determine whether or not the applicant
has exhausted domestic remedies because this complaint is, in any
event, inadmissible for the following reasons.
The Commission recalls that the principle of ne bis in idem is
intended to apply where a person has already been finally convicted or
acquitted of an offence and is tried or punished again in respect of
the same facts. The aim of Article 4 Protocol No. 7 (Art. (P7-4) is
to prohibit the repetition of criminal proceedings that have been
concluded by a final decision. That provision does not therefore apply
before new proceedings have been opened (Eur. Court HR, Gradinger v.
Austria judgment of 23 October 1995, Series A no. 328-C, p. 65, para.
53).
In the present case the applicant did not submit that he had
already been finally convicted of the same offence. His complaint
relates rather to the fixing of the sentence within the same
proceedings. Accordingly, Article 4 of Protocol No. 7 (P7-4) does not
apply.
It follows that this part of the application is incompatible
ratione materiae with the provision of the Convention invoked by the
applicant and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy