CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mai 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         AS TO THE ADMISSIBILITY OF                           Application No. 12960/87                       by Franz HÖLLMÜLLER                       against Austria             The European Commission of Human Rights sitting in private on 3 May 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 20 March 1987 by Franz Höllmüller against Austria and registered on 3 June 1987 under file No. 12960/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The facts of the case, as they have been submitted by the applicant, may be summarised as follows.           The applicant, born in 1949, is an Austrian national and resident in Korneuburg.   When lodging his application he was detained at the Korneuburg Prison.           In 1986 criminal proceedings were instituted against the applicant on charges of murder, fraudulent conversion and unlawful possession of a fire-arm.   He was detained on remand from 16 January until 7 October 1986.           On 6 and 7 October 1986 the Assize Court at the Korneuburg District Court (Geschwornengericht beim Kreisgericht) held the trial against the applicant who was represented by a chosen defence counsel.           On 7 October 1986 the Court convicted the applicant of second-degree murder (Totschlag), fraudulent conversion and unlawful possession of a fire-arm and sentenced him to seven years' imprisonment.   The jury found that the applicant had fraudulently deprived a 60 year old woman of AS 20,000 and killed her in the course of a dispute about this offence four months later.   As regards the sentence the Court considered as a mitigating circumstance in particular that the applicant had confessed the offences.   As aggravating circumstances it took into account that the applicant had committed several criminal offences and that he had profited by the victim's weakness and helplessness.   The period of his detention on remand was to be counted towards his sentence.           On 1 December 1986 the applicant, represented by his defence counsel, lodged a plea of nullity (Nichtigkeitsbeschwerde) against the conviction and an appeal (Berufung) against the sentence.   He alleged in particular inconsistencies of the jury's vote and the minutes of the vote.   Furthermore he submitted that the Assize Court had failed to decide upon an extraordinary mitigation of the sentence in his case.           On 2 December 1986 the Korneuburg Public Prosecutor's Office (Staatsanwaltschaft) also lodged a plea of nullity and an appeal.   It submitted in particular that the Assize Court incorrectly assessed the aggravating circumstances and argued that the applicant had committed a particularly callous and premeditated murder.           On 26 January 1987 the Austrian Supreme Court (Oberster Gerichtshof) fixed the public hearing of the appeal and plea of nullity for 19 February 1987.   The applicant's defence counsel was summoned.   The applicant, who was in custody, was informed about the date of the hearing and told that he could only be represented by defence counsel at the hearing.   The Court did not order that the applicant be brought before it at the hearing.   The Court, in this respect, referred in particular to S. 286 para. 2 and S. 296 para. 3 of the Austrian Code of Criminal Procedure (Strafprozessordnung).           S. 286 para. 2 provides with regard to proceedings concerning pleas of nullity that the defendant in custody shall be informed of the day of the hearing.   It shall be pointed out to him that he may only be represented by defence counsel.             According to S. 296 para. 3 of the Code of Criminal Procedure, as amended after the friendly settlement in the Peschke case (No.8289/78, Comm.   Report 13.10.81, D.R. 25 p. 182), S. 286 and 287 are applicable mutatis mutandis to appeal proceedings as regards the fixing of a day for the public hearing and the procedure, provided that the defendant not in custody shall always be summoned and that the defendant in custody shall be brought before the court, if he so requests in his appeal or in his counter-statement, or if his production appears to be necessary in the interests of proper administration of justice for other reasons ("... auch die Vorführung des verhafteten Angeklagten zu veranlassen ist, wenn er dies in seiner Berufung oder Gegenausführung beantragt hat oder die Vorführung sonst im Interesse der Rechtspflege geboten ist.")           It does not appear that a request under S. 296 para. 3 of the Code of Criminal Procedure, to be brought before the Supreme Court at the appeal hearing, had been filed by the applicant or his defence counsel in the present case.           On 19 February 1987 the Supreme Court dismissed both pleas of nullity.   Upon the Public Prosecutor's appeal, it increased the sentence to nine years' imprisonment.   The applicant's appeal was dismissed accordingly.   As regards the applicant's plea of nullity the Court found that only defects in the vote as such could have entailed the nullity of the judgment in question.   Furthermore the Court, having regard to the appeals, considered that the applicant's criminal offences were interrelated in the sense that the earlier unscrupulous fraudulent conversion resulted in the later dispute and murder.   The Court concluded that the outstanding degree of unlawfulness (überdurchschnittlicher Unrechtsgehalt) of the offences committed by the applicant required the increase of his sentence.   COMPLAINTS           The applicant complains under Article 6 para. 3 (d) of the Convention that he was wrongly convicted and sentenced.   Furthermore he submits that the Court proceedings were unfair in particular on the ground that his confession had been extorted and that the Assize Court did not examine witnesses on his behalf.   Moreover he complains that he could not in person attend the hearing before the Supreme Court.   THE LAW           The applicant complains that he was wrongly convicted and sentenced by the Korneuburg District Court on 7 October 1986 and also of the court proceedings concerned.           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 only 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.   The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236 ; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).             It is true that the applicant also complains under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention that the court proceedings were unfair. He considers, in particular, that the Assize Court failed to examine witnesses on his behalf.   Furthermore he complains that he was not allowed to attend the hearing before the Supreme Court.           The Commission has examined these complaints under Article 6 paras. 1 and 3 (c) and (d) (Art. 6-1, 6-3-c) of the Convention.           However, as regards the proceedings before the Assize Court, the Commission, even assuming that the domestic remedies, in this respect, were properly exhausted, finds that the applicant, who was represented by a defence counsel of his own choosing, did not show that he could not properly present his arguments at the trial or, in particular, that he had requested the Assize Court to hear certain witnesses on his behalf.           With regard to his complaint concerning the appeal proceedings the Commission recalls that Article 6 (3) (c) (Art. 6-3-c) and Article 6 (1) (Art. 6-1) of the Convention do not expressly guarantee the right to be present during the hearing of an appeal, but that the right to be present must be considered with the other rights of the defence in the context of an evaluation of the fairness of the proceedings as a whole (cf.   Nos. 1169/61, Yearbook 6 p. 520; 2635/65, Coll. 28 p. 43, 49; 7138/75, D.R. 9 p. 50 and 8289/79, D.R. 18 p. 160; No. 9315/81, Dec. 15.7.83, D.R. 34 p. 96).           In the present case, the Commission notes that the Supreme Court informed the applicant about the date fixed for the hearing, and, referring to the relevant provisions of the Code of Criminal Procedure, stated that he could only be represented by counsel.   The Supreme Court did not order that the applicant be brought before it at the hearing, because the conditions under S. 296 para. 3 of the Code of Criminal Procedure were not met.   Furthermore, the Commission notes that under S. 296 para. 3 the defendant in custody shall be brought before the court at a hearing, if he so requests.           The Commission finds that the applicant has not shown that he or his defence counsel filed such a request under S. 296 para. 3 of the Code of Criminal Procedure.   There is nothing in the applicant's submissions to indicate that he or the counsel of his own choosing were prevented from filing such a request and thus could not take care that he was brought before the Supreme Court at the hearing.   The Commission considers in particular that the Supreme Court informed the applicant about the date of hearing and his representation by counsel in accordance with the relevant provisions of the Austrian Code of Criminal Procedure.           It follows that the applicant is himself responsible for the fact that he was not present at the hearing before the Supreme Court.           Furthermore, the Commission notes that the applicant's plea of nullity and his appeal were presented in writing by his defence counsel, who had already represented him in the proceedings at first instance.   His defence counsel was also present at the hearing before the Supreme Court.           The Commission considers that, in these circumstances, there is nothing in the applicant's submissions to suggest that the proceedings before the Supreme Court were unfair, or otherwise improperly conducted.           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           DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission               President of the Commission            (H.C. KRÜGER)                               (C. A. NØRGAARD)