AS TO THE ADMISSIBILITY OF
Application No. 27778/95
by Johann ZIPPER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
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 3 October 1994 by
Johann ZIPPER against Austria and registered on 3 July 1995 under file
No. 27778/95;
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 1949. He is
presently detained at the Krems/Stein prison. Before the Commission
he is represented by Mr. Strobl, a lawyer practising in Vienna.
The facts, as submitted by the applicant, may be summarised as
follows.
On 22 July 1993 the Vienna Regional Criminal Court (Landesgericht
für Strafsachen) convicted the applicant of attempted burglary
(versuchter Diebstahl durch Einbruch) and sentenced him to twenty
months' imprisonment. It further revoked a conditional release from
a previous sentence of imprisonment.
The Regional Court found that the applicant, on 15 March 1993,
had gone together with an unidentified third person to a nurses home
(Schwesternheim) in Vienna. There he had opened the locked entrance
door of C.W., a nurse living there, with a pocket-knife as he had the
intention to burgle her apartment. After the door had been opened, but
before he could enter the apartment, C.W. returned. When she had asked
the applicant what he had been doing there he stated that he had been
looking for another person and left. The Regional Court did not accept
the applicant's defence that he had only been looking for another
person and that the door had already been open when he had arrived.
In the Court's view the only conclusion to be drawn from the evidence
before it was that the applicant himself had opened the locked door
with a tool. The Regional Court also noted that at the trial the
applicant, assisted by counsel, had requested that a seized pocket-
knife be examined by an expert in order to establish that the lock of
C.W.'s door could not be opened by this pocket-knife. The Regional
Court found that the evidence requested had been irrelevant to the
proceedings. It had not been established at the trial which precise
tool the applicant had used on 15 March 1993 in order to open C.W.'s
door, since he had not been arrested immediately afterwards.
On 30 November 1993 the applicant filed a plea of nullity
(Nichtigkeitsbeschwerde) and an appeal against the sentence (Berufung)
He complained that the Regional Court had rejected his request for an
expert report and that the Regional Court's judgment was contradictory.
While the Regional Criminal Court had found on the one hand that he had
used a pocket-knife for opening the door, it had found, in the part of
the judgment which related to the assessment of the evidence that it
had not been established what type of tool he had used.
On 18 January 1994 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's plea of nullity. It found that the Regional
Court had acted correctly when dismissing the request for an expert
report. As regards the alleged inconsistencies in the judgment
complained of the Supreme Court found that no such inconsistencies
existed. According to the original of the judgment in the file, the
Regional Court had consistently stated that the applicant had opened
the door with a "tool, possibly a pocket-knife".
On 17 March 1994 the Vienna Court of Appeal (Oberlandesgericht)
reduced the applicant's sentence to fifteen months' imprisonment. This
judgment was served on the applicant's lawyer on 8 April 1994.
At an unspecified date the applicant's lawyer inspected the case
file. In the case file, he found the original of the Regional Court's
judgment which, unlike the copy served on him, carried several
corrections in handwriting. These corrections consisted in the
rectification of writing mistakes and stylistic changes. On pages 3
and 5 the word "pocket-knife" was replaced by the words "tool, possibly
a pocket-knife". This corrected version of the judgment had not been
served on the applicant.
Apart from the applicant's lawyer's request for an expert opinion
on the question whether the door could have been opened with the
pocket-knife seized, and the dismissal of this request by the court,
the transcript of the trial before the Regional Criminal Court does not
contain any reference to the tool used by the applicant.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
the correction of the Regional Court's judgment violated his right to
a fair trial. He submits that the correction of the judgment must have
taken place after he had filed his appeal. While the inconsistencies
of the non-corrected judgment would have constituted a ground of
nullity, the subsequent correction of the judgment led to the dismissal
of his plea of nullity by the Supreme Court.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention that the correction of the Regional Court's judgment and the
failure to serve the corrected judgment on him violated his right to
a fair trial.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, reads as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The Commission recalls that the Contracting States enjoy
considerable freedom in the choice of the appropriate means to ensure
that their judicial systems comply with the requirements of Article 6
(Art. 6). The national courts must, however, indicate with sufficient
clarity the grounds on which they based their decision. It is this,
inter alia, which makes it possible for the accused to exercise
usefully the rights of appeal available to him (Eur. Court HR,
Hadjianastassiou v. Greece judgment of 16 December 1992, Series A no.
252, p. 16, para. 33).
The Commission observes that at the trial the Regional Criminal
Court rejected the applicant's request to obtain an expert opinion as
to whether it had been possible to open the locked door with a pocket-
knife seized from the applicant. Already in the non-corrected version
of the judgment the Regional Criminal Court stated as a reason for this
rejection that the type of the tool used by the applicant was not
established and furthermore irrelevant. Also when refuting the
applicant's defence the Regional Court found that the applicant had
used a tool for opening the door.
The Commission therefore finds that the reasons given by the
Regional Criminal Court for the rejection of the applicant's request
to take evidence made it sufficiently clear that the Regional Court did
not consider that the applicant had necessarily used a pocket-knife to
open the door. For this reason the corrections contained in the
judgment, the replacing of the word "pocket-knife" by the words "tool,
possibly a pocket-knife" constituted only a minor change which did not
prevent the applicant from effectively exercising his right of appeal.
In the circumstances of the present case the Commission finds
that there were no such procedural deficiencies as to render the
criminal proceedings taken as a whole unfair. Accordingly, there is
no appearance of a violation of the applicant's rights under Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy