AS TO THE ADMISSIBILITY
Application No. 15701/89
by Alexander WICK
against Austria
The European Commission of Human Rights sitting in private on
30 August 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
Mr. H.C. KRÜGER, Secretary to the Commission
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 October 1989
by Alexander WICK against Austria and registered on 26 October 1989
under file No. 15701/89;
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 is an Austrian citizen born in 1964. He is
represented before the Commission by Mr. A. Friedberg, a lawyer
practising in Vienna. The applicant's present representative did not
act for him in the proceedings before the domestic courts. The facts,
as submitted by the parties, may be summarised as follows:
On 14 February 1989 the applicant was convicted of robbery by the
Vienna Regional Court (Landesgericht) and sentenced to four years'
imprisonment. He had an officially appointed lawyer for his trial.
Representation by a lawyer is compulsory in such cases. The appointment
includes preparation of appeal papers.
After judgment, which was pronounced immediately, the applicant
and his lawyer asked for extra time to consider appeals. The
applicant's representative states that the question of appeals was
discussed at the end of the trial, and that it was agreed that the
lawyer would initially make the notice of intention to bring a plea of
nullity and an appeal against sentence. The request for time to
consider appeals was granted, and the three day time-limit began to
run. On 15 February 1989 the applicant's lawyer lodged a notice of
intention to appeal against sentence and to make a plea of nullity
against the judgment. In the course of the proceedings before the
Commission the applicant's present representative has submitted a copy
of a letter of 15 February 1989 from the then representative to the
applicant in prison, informing the applicant that the lawyer had given
notice of intention to make both the appeal against sentence and, as
a precaution (in case there should be an error on the face of the
judgment when received) a plea of nullity. He added that if the
judgment disclosed no ground of nullity, he would only make the appeal
against sentence.
On 17 February 1989 the applicant, who had been detained in
custody after sentencing, was asked by a prison guard whether he wished
to file an appeal. The guard explained to the applicant that there
were two types of appeal, one being a complaint as to the proceedings
(plea of nullity - Nichtigkeitsbeschwerde) and the other being a
complaint about sentence (appeal against sentence - Berufung). The
applicant signed the pre-printed form which had been completed by the
guard and in which he stated his intention to file a plea of nullity
and explicitly waived his rights to other remedies. There were no
consultations between the lawyer and the applicant at this stage.
The lawyer received the written reasons for the judgment on
24 February 1989 and, on 8 March 1989, submitted an appeal document in
which he formally made an appeal against sentence and withdrew the plea
of nullity announced on 15 February.
On 7 April 1989 the applicant and the guard concerned were
questioned by a judge. The applicant stated that he had not realised
that a lawyer had been appointed for the entirety of the proceedings.
He did not want to change lawyer. He also stated that he had been sent
a copy of the lawyer's appeal document with an explanation of why the
lawyer had withdrawn the plea of nullity. The applicant confirmed that
the lawyer had properly presented the applicant's interests. The
prison guard stated that he invariably tells prisoners briefly about
the difference between a plea of nullity and an appeal against
sentence, and confirmed that the applicant had said "plea of nullity".
The guard confirmed that he had made the deletions in the pre-printed
form. He added that he could not tell whether the applicant had
misunderstood him and made the wrong choice, possibly because he was
worked up as a result of the sentence.
On 17 April 1989 the applicant's appeal was rejected by the
Vienna Court of Appeal (Oberlandesgericht). It noted that the
applicant had entered a plea of nullity himself and waived all other
remedies. It also noted that the applicant's properly appointed lawyer
had withdrawn the plea of nullity and made an appeal against sentence.
The court recalled that one of the grounds for rejection of an appeal
in camera was that the person had waived that appeal. The applicant
had waived his rights to an appeal against sentence and such a waiver
was irrevocable. Such a waiver was effective, regardless of the
reasons for its having been made. An officially appointed lawyer, like
a private lawyer, was only able to act where the defendant had not
stated his desires. On the other hand, the withdrawal of the plea of
nullity by the lawyer was effective even against the will of the
defendant.
On 12 July 1990 the Minister for Justice gave a written reply to
a parliamentary question concerning the pre-printed form which the
applicant had signed. He stated that, since 7 May 1990, the form was
no longer in use. In particular, he considered that the form was
inadequate in several respects. He referred to the lack of clarity and
to the absence of sufficient information concerning appeals. It was a
particular concern of the Ministry that, although permissible in law,
pre-printed forms should not be used for waivers of remedies. He
underlined that the form was only for use in the case of defendants who
were not represented and reminded the parliamentarians that, as a
result of Article 182 of the Code of Criminal Procedure
(Strafprozeßordnung), very few unrepresented defendants were detained
after the first instance judgment. As the form was not used very
often, its continued use did not appear appropriate.
COMPLAINTS
The applicant complains that he was denied access to court
because the Vienna Court of Appeal accepted his waiver of the appeal
against sentence in circumstances where that waiver had been made under
a misapprehension which was compounded by the information given by the
prison guard. He initially alleged a violation of Article 6 para. 1
of the Convention and subsequently, in his observations submitted after
communication of the application to the respondent Government, referred
also to Article 6 para. 3(c) of the Convention and Article 2 of
Protocol No. 7.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 October 1989 and registered
on 26 October 1989.
On 7 October 1991 the Commission decided to request the parties
to submit written observations on the admissibility and merits of the
application.
The Government submitted their observations on 24 January 1992.
The applicant submitted his on 24 March 1992 and 25 May 1992.
On 11 February 1993 the applicant submitted replies to questions
put to him pursuance to Rule 47 para. 2 (a) of the Commission's Rules
of Procedure. The Government submitted their comments thereon on 29
March 1993.
THE LAW
The applicant complains of a denial of access to court in that
his waiver of an appeal against sentence was accepted by the Vienna
Court of Appeal even though that waiver was made under a
misapprehension. Initially he alleged violation of Article 6 para. 1
of the Convention and subsequently referred also to Article 6 para. 3
(c) of the Convention and Article 2 of Protocol No. 7 (Art. 6-1 , 6-3-
c, P7-2).
Article 6 para. 1 (Art. 6-1) of the Convention provides, as far
as relevant as follows:
"In the determination of ... any criminal charge ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. ..."
The Government submit that the application is manifestly ill-
founded. They point out that the applicant, who had applied for and
received legal aid, knew that he was represented and could have asked
to see the lawyer before completing the form. They regard the absence
of contact between the lawyer and the applicant as a matter for which
they are not responsible. They consider that the applicant must have
thought it unnecessary to consult his lawyer on the question of an
appeal against the sentence, and that accordingly he must accept that
the Vienna Court of Appeal would not overturn his "waiver". For the
Government, it must be acceptable to take the line that, if
contradicting remedies are pursued by a defendant and his
representative, it is the will of the defendant which prevails. As to
the events between 15 and 17 February 1989, the Government point out
that the applicant is not able, through his then lawyer, sufficiently
to establish that the lawyer in fact sent the letter of 15 February,
or that (and when) the applicant received it.
The applicant points out that the form used in the present case
was intended for defendants who are not represented and that it should
therefore not have been used at all in the present case. He also
points out that he was taken from his cell to the prison offices to
fill in the form, that he did not have the files with him, and that the
declaration was made at 11.50 am, i.e. just before lunch and obviously
under pressure. He further points out that there was not, in any
realistic way, any possibility whatsoever of contacting the lawyer, and
that the lawyer and the applicant did in fact have a short conversation
immediately after the trial. He concludes that it is incompatible with
the principles of a fair trial that, in cases in which an accused must
be represented, the accused's own declarations are given priority over
those of the lawyer appointed for the entire proceedings. This is
particularly the case in exercising remedies, as the decision on
whether or not to pursue a remedy, must depend on the legal advice
given by the person appointed for that purpose.
The Commission finds that the application raises complex issues
of fact and law under the Convention, the determination of which must
be reserved to an examination of the merits.
The application cannot therefore be declared manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits
of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy