CEDH · CASELAW;REPORTS;ENG — 5 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 } .s23A41E03 { width:36pt; display:inline-block }      Application No. 9783/82         Theodore KAMASINSKI       against       AUSTRIA       REPORT OF THE COMMISSION   (adopted on 5 May 1988)           TABLE OF CONTENTS       I.       INTRODUCTION         (paras. 1-23) ..........................................    1           A.       The application                 (paras. 2-7) ...................................    1           B.       The proceedings                 (paras. 8-18) ..................................    2           C.       The present Report                 (paras. 19-23) .................................    3   II.      ESTABLISHMENT OF THE FACTS         (paras. 24-86) .........................................    4           A.       The particular circumstances of the case                 (paras. 24-60) .................................    4                   1.   The pre-trial investigations (paras. 26-42)      4                 2.   The trial (paras. 43-49) ....................    8                 3.   The appeal and nullity proceedings                    (paras. 50-60) ..............................   10           B.       The relevant domestic law                 (paras. 61-86) .................................   12                   1.   Interpretation (paras. 61-66) ...............   12                 2.   Offical defence counsel (paras. 67-75) ......   13                 3.   Inspection of court files (para. 76) ........   16                 4.   Keeping of records (para. 77) ...............   17                 5.   Nullity proceedings before                    the Supreme Court (paras. 78-81) ............   18                 6.   Appeal proceedings before the Supreme Court                    (paras. 82-86) ..............................   19   III.     SUBMISSIONS OF THE PARTIES         (paras. 87-128) ........................................   21           A.       The Applicant                 (paras. 87-110) ................................   21           B.       The Government                 (paras. 111-128) ...............................   25   IV.      OPINION OF THE COMMISSION         (paras. 129-222) .......................................   29           A.       Points at issue                 (para. 129) ....................................   29           B.       As to the Commission's task under Article 28 (a)                 of the Convention (paras. 130-135) .............   29             C.       The proceedings before the Regional Court                 (paras. 136-187) ...............................   30                   1.   As to the alleged violation of Article 6                    para. 3 (a) of the Convention                    (paras. 137- 145) ...........................   30                 2.   As to the alleged violation of Article 6                    para. 3 (b) of the Convention                    (paras. 146-150) ............................   32                 3.   As to the alleged violation of Article 6                    para. 3 (c) of the Convention                    (paras. 151-162) ............................   32                 4.   As to the alleged violation of Article 6                    para. 3 (d) of the Convention                    (paras. 163-166) ............................   34                 5.   As to the alleged violation of Article 6                    para. 3 (e) of the Convention                    (paras. 167-181) ............................   35                 6.   As to the alleged violation of the applicant's                    right, under Article 6 para. 1 of the                    Convention, to a fair hearing in the                    proceedings before the Regional Court                    (paras. 182-183) ............................   38                 7.   As to the alleged violation of the                    presumption of innocence (Article 6 para. 2                    of the Convention (paras. 184-187) ..........   38           D.       The Supreme Court proceedings                 (paras. 188-207) ...............................   39                   1.   As to the alleged violation of the                    applicant's right, under Article 6 para. 1                    of the Convention,   to a fair hearing in                    the nullity proceedings (paras. 188-195) ....   39                 2.   As to the alleged violation of the                    applicant's rights under Article 14 read                    in conjunction with Article 6 para. 1 and                    para. 3 (c) of the Convention, in the appeal                    proceedings (paras. 196-204) ................   40                 3.   Article 13 of the Convention (paras. 205-207)   42           E.       Recapitulation (para. 208) .....................   42   Separate opinion of Mr.   Trechsel, joined by Mr.   Vandenberghe ...   44   Partly dissenting opinion of Mr.   Weitzel, Sir Basil Hall and                              Mrs.   Liddy ........................   45   Partly dissenting opinion of Mr.   Vandenberghe, Mrs.   Thune and                              Mr.   Rozakis .......................   46   Separate opinion of Mrs.   Thune and Mrs.   Liddy ..................   46   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ..................   47   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ...............   49   I.     INTRODUCTION     1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicant is a citizen of the United States of America, born in 1937 and now residing in Connecticut, U.S.A.   In the proceedings before the Commission he has been unrepresented.   However, in certain matters, he has been assisted by his former defence counsel, Dr.   Sch.   3.       The application is directed against Austria whose Government were represented by their Agent, Ambassador Dr.   Helmut Türk, Head of the International Law Department of the Federal Ministry of Foreign Affairs.   4.       The application concerns criminal proceedings instituted against the applicant before the Regional Court of Innsbruck in which he was convicted of aggravated fraud and misappropriation and sentenced to eighteen months' imprisonment.   The applicant filed an appeal and a plea of nullity which were dismissed by the Supreme Court on 1 September and 24 November 1981 respectively.   5.       With regard to his trial the applicant invokes Article 6 paras. 1 and 3 of the Convention.   He complains that his trial was unfair and that his rights of defence were violated.   In particular, he was not sufficiently informed of the charges against him, in a language which he could understand, the interpretation was insufficient, and the legal assistance ineffective.   He thus did not have adequate facilities to prepare his defence and to put questions to the witnesses.   He further alleges a violation of the presumption of innocence, guaranteed by Article 6 para. 2 of the Convention, and discrimination, contrary to Article 14 of the Convention.   6.       As regards the Supreme Court proceedings on his plea of nullity, the applicant alleges that they were unfair and contrary to Article 6 para. 1 because they involved a one-sided investigation of the interpretation issue.   He further alleges that these proceedings failed to provide an effective remedy concerning his above complaints relating to his trial and therefore did not constitute an effective remedy as required by Article 13 of the Convention.   7.       As regards the Supreme Court proceedings on the appeal against the sentence, the applicant complains that he was not allowed to attend in person while an accused at liberty would have had the right to be present.   He considers that this violated Article 6 paras. 1 and 3 (c), read in conjunction with Article 14 of the Convention.   B.       The proceedings   8.       The application was introduced on 6 November 1981 and registered on 21 April 1982.   9.       On 30 May 1983 a member of the Commission, acting as Rapporteur, requested certain information from the respondent Government in accordance with Rule 40 para. 2 (a) of the Commission's Rules of Procedure.   The Government submitted the relevant information on 25 July 1983 and the applicant submitted comments in reply on 20 September, 16, 22 and 24 November, 2, 3 and 12 December 1983, and 15 February 1984.   10.       On 14 March 1984 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present before 8 June 1984 their observations in writing on the admissibility and merits of the application.   11.      The Government submitted their observations in German on 15 June 1984.   An English translation was filed on 17 July 1984 and the applicant was then requested to reply before 30 September 1984. At the applicant's request, this time-limit was subsequently extended until 31 December 1984.   The applicant's observations dated 30 December 1984 were received on 3 January 1985.   They were supplemented by a telex of 1 May 1985.   12.      On 8 May 1985 the Commission declared the application admissible.   This decision was on 18 July 1985 communicated to the parties who were invited to submit observations on the merits, including replies to certain particular questions, before 4 October 1985.   13.      The Government submitted their observations on 1 October 1985. They suggested that certain disputed facts be clarified by a fact-finding procedure in Austria.   14.      At the applicant's request the time-limit for the submission of his observations was extended until 15 November 1985.   However, the first copy of the applicant's observations dated 15 November 1985 was apparently lost in the mail and on 3 March 1986 the applicant sent a second copy of these observations.   On 15 April 1986, the applicant submitted supplementary observations.   15.      On 10 May 1986 the Commission decided not to proceed to a fact-finding procedure as suggested by the Government and instead to invite the Government to reply to the applicant's submissions of 15 November 1985 and 15 April 1986.   The Government submitted their reply on 15 July 1986.   16.      Further submissions were made by the applicant on 14 July 1986, 17 October 1986 and 26 January 1987 and, on his behalf, by his earlier defence counsel, Dr.   Sch, on 15 July, 12 August and 27 November 1986.   17.      On 11 October 1986 and 7 March 1987, the Commission considered the state of proceedings.   It rejected the applicant's request for an oral hearing on the merits.   18.       After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.       The present Report   19.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY   20.      The text of this Report was adopted on 5 May 1988 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   21.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   22.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   23.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case   24.      The applicant is a citizen of the United States, born in 1937 and now residing in Connecticut, U.S.A.   He entered Austria in the summer of 1979.   25.      Being suspected of fraud and misappropriation, he was arrested in Mödling (Lower Austria) on 4 October 1980 under a warrant issued by the Innsbruck Regional Court (Landesgericht).   On the same day he was taken to Vienna where, on 6 October 1980, the Vienna Regional Criminal Court (Landesgericht für Strafsachen) ordered his detention on remand. On 15 October 1980 he was transferred from Vienna to the Innsbruck Regional Court Prison (landesgerichtliches Gefangenenhaus).           1.   The pre-trial investigations   26.      The applicant was interrogated by police officers on 15 October 1980, 6 November 1980 and 16 December 1980.   During the interrogation on 15 October 1980 interpretation was provided by a prisoner who, however, had only a limited knowledge of English.   On 6 November 1980 a person acted as interpreter who is not a court-certifed interpreter, but is regularly asked to interpret at police investigations when no court-certified interpreter is available.   It could not be established by the Commission whether the person who provided interpretation during the interrogation on 16 December 1980 was a court-certified interpreter or not.   The applicant received neither copies of the records of these interrogations nor written translations thereof, nor were they interpreted for him.   27.      Court-certifed interpreters assisted during the pre-trial investigations by several investigating judges on 17 October 1980, 27 October 1980, 28 November 1980 and 1 December 1980.   These investigations were conducted in the way that the investigating judge put a question or a series of questions to the applicant which were interpreted into English.   Likewise, the applicant's answers were interpreted into German.   The judge then had the typist record a summary of the applicant's answers which he considered relevant. These recitals made in German were not immediately interpreted and the extent to which the recorded version was interpreted for the applicant at the end of the hearing could not be established by the Commission. On 27 October 1980 and 28 November 1980 the applicant refused to sign the record.   On the first of these dates he stated that he considered an oral translation insufficient, on the second date he declared that he would be prepared to sign a written translation of the record.   28.      As the applicant was unable to find a defence counsel by himself, a request was addressed to the Tyrol Bar Association which appointed Dr.   K, who set out in writing the applicant's complaint against his detention.   However, in a letter of 31 October 1980 the applicant complained that Dr.   K did not speak English sufficiently well.   Dr.   K requested to be relieved of his duties as counsel for the same reason.   29.      In view of this situation the remand review hearing of 19 November 1980 was adjourned.   The Review Chamber (Ratskammer) instructed the investigating judge, inter alia, to decide on the motion to appoint another lawyer with sufficient command of English. It was on this motion that Dr.   St, a lawyer who is also a registered interpreter for the English language, was appointed as defence counsel on 26 November 1980.   30.      Dr.   St visited the applicant for the first time on 3 December 1980 for at least 15 minutes.   On the same day he also appeared for the applicant at the adjourned remand review hearing before the Review Chamber.   Further, he lodged a complaint on the applicant's behalf against the Review Chamber's decision to prolong the detention on remand.   Subsequent visits by Dr.   St were made on 19 and 30 December 1980 and 21 January and 9 February 1981.   The applicant states that he was taken from his cell for five or ten minutes, and that Dr.   St, who, on all occasions, also visited other prisoners, met the applicant for one minute or less.   31.      On 16 February 1981 the applicant was notified of the indictment during a court session.   A court-certified interpreter was present, but not the applicant's defence counsel.   The extent to which the indictment was interpreted is in dispute between the parties. The session lasted about an hour.   According to the Government this suggests that the interpreter translated the essentials of the indictment.   According to the applicant most of the time was consumed awaiting the arrival of the applicant's defence counsel.   However, he did not appear and was eventually contacted by telephone.   He informed the applicant that he would not attend the session since this would do no good and advised him not to raise any objection to the indictment.   32.      The minutes of this session show that the applicant requested that the indictment also be served upon his defence counsel. Furthermore, he objected to the indictment and motivated this objection (Einspruch) by stating, inter alia, that he had already written nine letters presenting the evidence requested.   Despite his repeated requests he had never received any of the telephone invoices he was accused of not having paid.   He had also demanded to be confronted with incriminatory evidence but had never obtained this evidence for review.   He also stated that the indictment was defective and that therefore he requested its review.   Neither on that occasion, nor later, was the applicant provided with a written translation of the indictment.   33.      Upon return to his cell, the applicant wrote the following letter to his defence counsel:           "As you know I received the indictment today. Perhaps you would be kind enough to explain to me why you arranged to be telephoned instead of being present to give me advice?   How in <deleted expletive> name can you advise me before ever seeing that which you are to advise about? The young doctor ?? told me I had to make up my mind instantly concerning whether or not to appeal.   He typed something out and when I made a correction by inking out an obvious mistake, the ?? went <deleted expletives>. 'You cannot alter what I write for you to sign, it is forbidden'. I told him to do the then appropriate thing with the paper and he ordered the interpreter ... to sign it.            ...   I wish you to give me legal advice concerning the indictment:           1.   Are there grounds for appeal?           2.   What are the grounds available to appeal             against an indictment?           3.   Can I call witnesses on my behalf and compel             them to attend the trial?           4.   Will you assist me in a legal manner?           It certainly appears as though you believe the decision on my guilt is pre-ordained otherwise you would not advise others that I will be found guilty without ever seeing the evidence, discussing it with me or ever seeing the indictment.   Of course, you have advised me I would be freed on the same basis ..."   34.      Four days later, on 20 February 1981, Dr.   St came to visit the applicant in prison, informing him that he would withdraw the objection to the indictment.   This he did by a letter of the same day.   35.      Dr.   St next went to see the applicant in prison on 16 March 1981.   The applicant was absent from his cell for one hour.   Dr.   St also visited the applicant on 27 March 1981 when the applicant was absent from his cell for 30 minutes and on 1 April 1981 (20 minutes absent from his cell) as well as on 20 May 1981 and on 2 July 1981.   36.      On 16, 19, 23 (or 24) and 30 March 1981 the applicant wrote letters to the judge presiding over the Chamber of the Regional Court competent to hear his case.   In his letter of 16 March 1981 the applicant expressed fears concerning his personal security during the trial.   The contents of this letter were also explained to the presiding judge, Dr.   B, by the prison legal officer, Dr.   P, on the telephone.   In view of these fears a detective officer in plain clothes was eventually asked to attend the trial.   37.      The applicant's letters of   19, 23 (or 24) and 30 March 1981 to the presiding judge, which were carried by hand from the Regional Court Prison to the Regional Court in the usual way, are now missing from the court file, and not indexed there.   The Government are unable to give an explanation therefor.   Moreover, the prison's legal officer, Dr.   P, confirmed that according to the prison records another letter, addressed to the Public Prosecutor, Dr.   F, was transmitted like any other on 30 March 1981.   However, according to two statements by the Innsbruck Public Prosecutor's Office "a letter of [K] dated 30 March 1981" was never received.   On the other hand, the court file does contain two sealed envelopes addressed to Dr.   G, one of the investigating judges.   These two letters are indexed under unit No. 100 with the entry: "Day of receipt 16/2 - Contents - letters of accused - Page 275".   38.      Due to the disappearance of the letters of 19, 23 (or 24) and 30 March 1981 from a file under the control of the Government the Commission is unable to establish their contents with certainty. However, it notes the following - undisputed - facts:   39.      In a subsequent letter of 25 March 1981 to the prison legal officer Dr.   P, the applicant complained of not having received a reply to any letters addressed to the presiding judge in the following terms:   "Dr.   P,           May I please have an answer to my last note?? There is only 5 working days until the trial which is scheduled on the 2nd of April.   I have not had an answer to any requests sent to Dr.   B<...>.   Does he ignore me because I write only in English?   Does he also ignore the Austrian Law in the same way as the U-richter?   I have not yet seen the evidence irrespective of the fact I have an assigned Lawyer.   Having a lawyer that does nothing does not satisfy Justice.           You people must be crazy to think you can carry on a system of Justice in such an oppressive manner.           What do I have to do after six months to get the consideration I deserve?   Must I hurt myself?   Certainly you understand what is going on and you can easily telephone Dr.   B<...> and inquire.           I will not write you or Dr.   B<...> again.   If I do not have a satisfactory reply in accord with Austrian Law and the European Human Rights Convention, Article 6 by the end of the day of March 26, Thursday, I shall take drastic steps!   I have had enough of this charade."   40.      On 1 April 1981 the applicant was visited by two officers of the United States Embassy in Vienna.   According to a memorandum subsequently drawn up by one of them for the files of the Embassy the applicant "complained that his public defender, Dr.   St, had not discussed his defense with him yet and that he had had no chance to review the court file himself.   (Dr.   St had told me over the phone several days ago that he had spent a total of three hours discussing the defense with Mr.   K and that he would see him again shortly before the trial)".   41.      On 18 May 1981 the applicant wrote a letter to the presiding judge in which he summarised the contents of his letters of 16, 19 and 30 March 1981 and complained about not having received any response.   This letter together with a German translation was forwarded to the presiding judge on 26 May 1981.   There, the applicant stated the "important elements" of his previous letters as follows:   "... 2.   On the 19th of March, I wrote you a letter to request an inspection of the Court records (Akteneinsicht) and informed you therein that I had little knowledge of any of the alleged evidence, documentary or testimonial.   I specifically asked you to discharge Dr.   St[...] if his representation of me was to be a basis of denying me direct access to the evidence.   I stated that it was more important for me to know of the basis of the allegations (so as to prepare a defence) than to be represented by a lawyer.   I presume that you did not give me access to the evidence requested nor did you discharge Dr.   St[...] because you did not understand my letter.   (To this date, I do not have knowledge of the majority of the evidence).   3.   On the 19th of March I also requested permission to present documentary evidence in English, which request I presume was never answered because it was not understood.   4.   On the 30th of March I wrote to inform you that my appointed lawyer, Dr.   St[...] had still not prepared me for the Trial on the 2nd of April nor given me access or knowledge of the prosecution evidence.   (The situation remained the same as reported in my letter of the 19th of March except that at 4:15 in the afternoon of April 1st, Dr.   St[...] came to inform me that no further preparation was necessary since "nothing" would happen to me on April 2nd).   5.   On the 4th of May I wrote to inform you of some of the grounds of the Nichtigkeitsbeschwerde as well as the grounds for appointment of a new lawyer to replace Dr.   St[...] Included within my 4th of May letter was a letter to Dr.   Ernst Mayr, President of the Rechtsanwaltskammer, which letter I left unsealed, and invited your inspection of the grounds for replacement of Dr.   St[...].   I also informed you that I had no idea of the terms of the judgment as the translator only stated that I was guilty and sentenced to 18 months.   (To this date, I still have no further information, in spite of STPO §260 etc.)"   42.      In view of these facts the Commission is led to the conclusion that the applicant's letters of 19, 23 (or 24) and 30 March 1981, which cannot be traced, were not repetitive - as contended by the Government - but criticised the pre-trial procedure and expressed concern about the applicant's defence at the trial.           2.   The trial   43.      The trial before the Innsbruck Regional Court took place on 2 April 1981.   It was attended by two officers of the U.S. Embassy in Vienna as observers.   The applicant claims that at the beginning his defence counsel, Dr.   St, assured him that the presiding judge fully understood English but that he was prevented by law from answering in English.   This statement was confirmed by the U.S. Consular observers (letter from the U.S. Embassy of 1 July 1981, submitted by the applicant).   The applicant's further allegation that in fact the presiding judge did not understand English is contested by the Government.   44.      During the trial, there was apparently a dispute between the applicant and his defence counsel, Dr.   St, as to whether requests should be made for the hearing of further witnesses including a lawyer whom the applicant suspected of double-representation.   Dr.   St, considering this suspicion as an attack against the reputation of Austrian lawyers in general, thereupon asked the Court to be discharged from his functions as the applicant's defence counsel. However, the Court rejected this request.   Dr.   St accordingly continued to represent the applicant until the end of the trial.   45.      A court-certified interpreter was present who was sitting next to the applicant's defence counsel to the left of the judges' bench, while the applicant was sitting at a distance of about 6 to 7 metres from his defence counsel facing the bench.   The records of the trial state that an interpreter was present but do not indicate which of the statements made during the trial were interpreted or the extent to which this was done.   46.      According to the applicant the indictment read out at the beginning of the trial was not interpreted but, according to the above letter of 1 July 1981 from the U.S. Embassy the applicant, when asked, stated that he understood the charges, and according to another letter of 22 October 1981 from the U.S. Embassy, also submitted by the applicant, he and his defence counsel waived interpretation of the indictment.   According to the findings of the Supreme Court (see para. 57 below) all essential parts of the indictment were interpreted.   47.      The applicant further states that questions put to witnesses were not interpreted, and their testimony was not fully interpreted. The statements of three witnesses allegedly were not interpreted at all, and those of two further witnesses only summarily.   Furthermore, the statement of one witness was allegedly read out without being translated.   According to the Supreme Court's findings, on which the Government rely, all essential parts of the testimonies of witnesses and of the contents of documents read out at the trial were interpreted (cf. para. 57 below).   48.      Lastly, the extent to which the judgment delivered at the end of the trial and the summary of its reasons were interpreted into English is also in dispute between the parties (cf. paras. 57, 99 and 123 below). The above letter from the U.S. Embassy of 22 October 1981 confirms that, as far as the consular observers could remember, only the verdict and the sentence, but not the reasons were interpreted into English.   49.      The applicant was found guilty of aggravated fraud and misappropriation and sentenced to 18 months' imprisonment.   He was also ordered to pay 80,890 AS to two private parties (Privatbeteiligte) who had appeared as witnesses for the prosecution and who had claimed compensation.   The written judgment was served upon his defence counsel, Dr.   St, on 19 May 1981.   On 20 May 1981, Dr.   St visited the applicant in prison, but expressly refused to translate the whole text of the judgment for him.   The applicant received a copy thereof (in German) on 27 May 1981 but was not provided with a written translation of the judgment.           3.   The appeal and nullity proceedings   50.      Subsequent to the trial, on 6 April 1981, the applicant wrote a letter to the prison legal officer, Dr.   P, asking him to convey to the presiding judge his request to have a new defence counsel appointed, as he did "not get along with Dr.   St", and also asking for advice what to do in order to obtain a new lawyer.   This letter was forwarded to the competent Department of the Regional Court on 7 April 1981 where it was received the next day.   The applicant also wrote to Dr.   St informing him that he had asked for the appointment of another defence counsel.   51.      On 20 May 1981 the applicant was once more visited in prison by Dr.   St.   At the applicant's request this meeting was also attended by Dr.   P.   The applicant reiterated his request to have another defence counsel appointed.   52.      By letter of   21 May 1981 Dr.   St requested the Tyrol Bar Association to be discharged of his duties as defence counsel.   On 22 May 1981 the Bar Association appointed Dr.   Sch as new defence counsel for the applicant.   Dr.   Sch was notified thereof on 26 May 1981.   On 29 May 1981, Dr.   B, a partner of Dr.   St, came to see Dr.   Sch in his office, and gave him a draft appeal (Berufung) and plea of nullity (Nichtigkeitsbeschwerde) prepared by Dr.   St (consisting of three pages) and also some copies from the court file.   On Monday, 1 June 1981, Dr.   Sch visited the applicant in prison and was given his draft appeal.   The statement setting out the reasons of the plea of nullity and of the appeal was then drawn up and filed on 2 June 1981, the day on which the delay for filing it expired.   53.      The plea of nullity was essentially based on the following grounds:           a.   That the applicant was not adequately represented            by counsel during the proceedings and in particular            during the trial.           b.   That the interpretation during the trial was            insufficient and in particular that neither the            indictment nor the testimony of certain witnesses            nor the questions put to witnesses by the judge            or the Public Prosecutor were interpreted into            English.           c.   That save for its operative part the judgment was            not interpreted or translated.   54.      With regard to the factual allegations concerning the scope of interpretation during the trial, the Supreme Court (Oberster Gerichtshof) proceeded to an enquiry in accordance with Section 285 f of the Code of Criminal Procedure (para. 81 below).   The presiding judge of the Innsbruck Regional Court was questioned by the Rapporteur of the Supreme Court over the telephone.   A note on this conversation was taken which reads as follows (English translation provided by the Government):           "The presiding judge, Regional Court Justice Dr.   B, replied as follows to an enquiry by telephone:           Contrary to the allegations made in the plea of nullity, all essential points of the indictment, of the witnesses' depositions, of the contents of the documents read out in court as well as of the judgment, including its reasoning, were translated by the interpreter who had been summoned and by counsel for the defence, Barrister Dr.   St (who is a qualified English interpreter), at the trial which was attended by two members of the U.S. Embassy.   The defendant was also permitted to comment on the charges and on each piece of evidence without any time limit as well as to put questions to the witnesses."   55.      On 1 September 1981, after having obtained the view of the Attorney General (Generalprokurator), the Supreme Court, sitting in chambers (cf. paras. 79-80 below), rejected the plea of nullity, essentially on the following grounds:   56.      Regarding the complaint that the applicant was not adequately represented by counsel during the trial, the Supreme Court found that the Regional Court was only under a duty to appoint a defence counsel and to call him in for the trial.   It was not, however, for the Court to supervise his activities and, accordingly, no ground for nullity could be deduced from any insufficient performance of his duties.   57.      With respect to the interpretation during the trial, the Supreme Court observed that the Regional Court had not only appointed an interpreter to assist during the trial but that it had also appointed, at the applicant's request, a defence counsel who was at the same time an English interpreter and with whom the applicant could communicate in his mother tongue.   Moreover, neither an incomplete translation nor a failure to appoint an interpreter did as such constitute a ground for nullity.   They could at best be challenged if a corresponding request had been denied at the trial.   Moreover, the enquiry made by the Supreme Court pursuant to Section 285 f of the Code of Criminal Procedure had shown that, contrary to the allegations in the applicant's plea of nullity, all essential parts of the indictment, of the testimonies of witnesses, of the contents of documents read out during the trial, and also of the judgment including its reasons, had been interpreted by the court-appointed interpreter.   Furthermore, the applicant had had the opportunity to comment on the charges and the evidence without any time restriction and also to put questions to witnesses.   58.      The applicant's appeal against sentence and against the order to pay compensation was decided after a public hearing of which the applicant had been informed according to Section 286 para. 2 of the Code of Criminal Procedure (para. 84 below).   The applicant requested to be brought before the Supreme Court, submitting, inter alia, that the determination of the sentence necessitated an assessment of his personality and that this required his presence.   Moreover, the file before the Supreme Court included articles from the daily newspaper "Kurier" which were prejudicial to him and might adversely influence the Supreme Court.   Lastly, as his appeal concerned also the civil law aspects of the judgment, it would be unfair if the private parties to whom he had to pay compensation would appear before the Supreme Court but not the applicant.   This request was rejected by an order of the Supreme Court of 20 November 1981.   59.       The applicant's appeal was dismissed by the Supreme Court on 24 November 1981 after a hearing at which the applicant was represented by defence counsel.   The Supreme Court considered that the sentence imposed by the Regional Court was adequate and that the relative weight of mitigating and aggravating circumstances had been correctly assessed.   The adjudication of compensation to two private parties had been in accordance with the law and therefore there was no reason to refer the decision on this issue to the civil courts as requested by the applicant.   The judgment also lists those present at the appeal hearing and there is no indication that the private parties whose compensation claims the Regional Court had upheld were present or represented at that hearing.   60.      The applicant was released from prison on 16 Decemb