AS TO THE ADMISSIBILITY OF
Application No. 22606/93
by S. Z.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 April 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 5 May 1993 by S.
Z. against Austria and registered on 10 September 1993 under file
No. 22606/93;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant was a citizen of former Jugoslavia, born in 1966,
and is presently detained at the Stein prison.
On 23 September 1992 the Vienna Public Prosecutor's Office
(Staatsanwaltschaft) preferred a bill of indictment against the
applicant and S.P. as co-accused, charging them with murder.
On 3 and 4 December 1992 the trial took place before the Court
of Assizes (Geschwornengericht) at the Vienna Regional Court
(Landesgericht) in which the applicant and S.P. were both assisted by
official defence counsels. According to the transcript of the court
hearing the court heard three witnesses and three experts and neither
of the accused requested the taking of further evidence at the trial.
On 4 December 1992 the Court of Assizes convicted the applicant
and S.P. of murder and aggravated robbery and sentenced them to life
imprisonment. The Court of Assizes found that on 5 June 1992 the
accused had murdered a woman, an acquaintance of the applicant, and
taken her jewels.
The applicant introduced a plea of nullity (Nichtigkeits-
beschwerde) and an appeal (Berufung) against the sentence. In his plea
of nullity the applicant submitted in particular that the questionnaire
submitted to the jury was incorrect. In his appeal he submitted that
the Court of Assizes had failed to take into account as further
mitigating circumstances his confession and that he had acted under the
influence of S.P.
On 20 April 1993 the Supreme Court (Oberster Gerichtshof), after
a public hearing in which the applicant was represented by his counsel
but did not participate himself, dismissed his plea of nullity and
appeal. As regards the plea of nullity, the Supreme Court found that
the questions put to the jury had been correct. As regards the appeal
the Supreme Court found that there were no indications in the file for
the alleged incitement by S.P. and that the Court of Assizes had acted
correctly in passing the sentence.
COMPLAINTS
The applicant complains about his conviction and the alleged
unfairness of the proceedings concerned. He submits in particular that
he had been questioned by the police in the absence of an interpreter,
that the case-file had not been translated for him into Serbo-Croat and
that the Court of Assizes had failed to hear important witnesses. He
further submits that his defence counsel did not defend him properly.
He also complains that he could not attend the hearing of the Supreme
Court. He invokes Article 6 paras. 1, 2, 3 (a) and 3 (d) and Article
7, 8, 13 and 14 of the Convention.
THE LAW
1. With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its task is to ensure the observance of
the obligations undertaken by the parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
The applicant further complains that the criminal proceedings did
not comply with the requirements of Article 6 (Art. 6) of the
Convention in several respects.
2. He submits that he had been questioned by the police in the
absence of an interpreter, that the case-file had not been translated
for him into Serbo-Croat and that the Court of Assizes failed to hear
important witnesses.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of Article 6 (Art. 6) of the Convention as, under Article 26
(Art. 26) of the Convention, it may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognized rules of international law. It recalls that domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention
have only been exhausted if, before the highest domestic body, the
applicant has submitted in substance his complaint before the
Commission, even without particular reference to the Convention
(No. 7299/75 and 7496/76, Dec. 4.12.79, D.R. 18 p. 5; No. 12164/86,
Dec. 12.10.88, D.R. 58 p. 63).
The Commission notes that the applicant in his plea of nullity
did not raise the issue of the interpreter, the translation of the case
file or the Court of Assizes' failure to summon witnesses for the
defence.
It follows that the applicant has not complied with the
requirement as to the exhaustion of domestic remedies contained in
Article 26 (Art. 26) of the Convention.
This part of the application must, therefore, be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
3. As regards the applicant's further complaints about the alleged
unfairness of the proceedings leading to his conviction, the Commission
recalls that the guarantees contained in paragraph 3 of Article 6
(Art. 6-3) of the Convention are specific aspects of the general
concept of fair trial set forth in paragraph 1 of this Article
(Art. 6-1). In the circumstances of the present case, it will consider
the applicant's complaints from the angle of paragraph 1 taken together
with the principles inherent in paragraph 3 (Art. 6-3)(see Eur. Court
H.R., Bönisch judgment of 6 May 1985, Series A no. 92, p. 15, para. 29;
Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14,
para. 29).
a. As regards the applicant's complaint that his defence counsel did
not defend him properly, the Commission recalls that the domestic
courts are obliged under Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention to ensure the accused's effective defence, but the person
concerned must provide them with the wherewithal to notice any
deficiency in the defence (No. 9022/80, Dec. 13.7.83, D.R. 33 p. 21 at
p. 36).
However, the applicant has not shown that at any stage in the
proceedings he had notified the authorities of the alleged shortcomings
in his defence. In these circumstances there is no appearance of a
violation of the applicant's right to a fair hearing in this respect.
b. Lastly the applicant submits that he could not attend the public
hearing before the Supreme Court.
The Commission notes that this hearing concerned first the
applicant's plea of nullity. In this respect the Commission recalls
that under Austrian law the Supreme Court in dealing with nullity
proceedings, is primarily concerned with questions of law that arise
in regard to the conduct of the trial and other matters. While the
Supreme Court is bound by the findings of fact made by lower courts,
it may be required to examine whether a motion to take evidence has
been properly refused by the trial court and whether the excluded facts
might have influenced the jury's verdict. If the accused is
represented by counsel, neither paragraph 1 nor 3 (c) of Article 6
(Art. 6-1, 6-3-c) require his presence at such proceedings (Eur. Court
H.R., Kremzow judgment of 21 September 1993, Series A no. 268-B, p. 44,
para. 63). In the present case, the applicant had been represented by
counsel and had not requested to be present at the hearing. Moreover
he had invoked as ground of nullity that the questionnaire submitted
to the jury was incorrect which is a question of law.
The hearing before the Supreme Court also concerned the appeal
against sentence. In such proceedings it is essential that the
appellant be present during the hearing of the appeal and afforded the
opportunity to participate in it together with his counsel, if the
court is called upon to assess not only the appellant's character and
state of mind at the time of the offence but also of his motive
(Kremzow judgment, loc. cit., p. 45, para. 67). In the present case,
however, the grounds of appeal submitted by the applicant, did not give
rise to an assessment of his motive or even of his character or state
of mind at the time of the offence.
Therefore, the Commission finds that the applicant's presence at
the Supreme Court's hearing was not required by Article 6 para. 1
(Art. 6-1) or para. 3 (c) (Art. 6-3-c) of the Convention. There is,
thus, no appearance of a violation of the applicant's right to a fair
hearing in this respect.
This part of the application, therefore, 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) (C.L. ROZAKIS)
Full & Egal Universal Law Academy