CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 septembre 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. 13372/87                       by A.                       against Austria             The European Commission of Human Rights sitting in private on 8 September 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   J. RAYMOND, Deputy 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 7 October 1987 by A. against Austria and registered on 12 November 1987 under file No. 13372/87;           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 submitted by the applicant may be summarised as follows:   The applicant is a Yugoslav, born in 1942 and presently detained in prison of Garsten/Austria.   He is represented by Dr.   K. Lichtl, a lawyer in Linz.           On 12 January 1987 the Court of Assizes (Geschworenengericht) at the Regional Court (Landesgericht) in Linz found the applicant guilty by seven votes against one of the murder of three persons whom he had shot in the head from a distance of less than two metres.   The jury thereby implicitly denied the question, put in eventu, whether the killing constituted homicide only.           In the jury's notes (Niederschrift) it is explained that the murder charge was confirmed because the break of family relations could not explain the killing of three people.   The killing was considered as the eruption of internal aggressions.   Furthermore, the jury found the applicant guilty of unlawful possession of a firearm.   As to the question of whether or not the applicant was criminally responsible for the murder the jury followed the expert opinion according to which the applicant was criminally responsible.           The applicant was sentenced to sixteen years' imprisonment.           According to the minutes of the trial the applicant admitted the killing.   The victims were two women and a man who was the brother of one of the women and the friend of the other.   This other woman had formerly been the applicant's concubine.   The applicant had visited the three allegedly to collect clothes of his children who had previously lived with their mother, the applicant's concubine.   He left the children outside in his car.   After some discussion he went to fetch a pistol which he kept in his car and then returned to the house where he shot the three persons.   Before the Court he alleged that he only wanted to frighten the victims.   He also alleged that he was afraid of the friend of his concubine, who allegedly jumped up and grasped for a knife.   Allegedly the applicant then shot, without aiming at a particular part of the body and without knowing how often he shot.   He had allegedly lost control over himself.           After the killing the applicant tried to commit suicide but only hurt himself seriously, causing some brain damage and necessitating his hospitalisation.           The expert heard by the Court considered that the killing had been an emotional act but not an act committed in a state of mind beyond the applicant's control.   As regards the applicant's alleged fear of being attacked by the male victim the expert submitted that such fear might at best have been a marginal circumstance (Randerscheinung), as otherwise the applicant would not have shot the women likewise.    A certain imaginative fear could, however, possibly have increased his tension.           According to the record of the trial, no motions were submitted by the defence requesting amendments or supplements to the questions which had been put to the jury.           The applicant lodged an appeal (Berufung) and a plea of nullity.   He complained, inter alia, that the trial court did not put the question to the jury whether or not in killing the male victim, he had acted in real or putative self-defence.   Furthermore, he complained that the question whether the killing constituted murder or homicide had not been put in respect of each victim separately.           In its decision of 14 April 1987, the Supreme Court (Oberster Gerichtshof) stated that the applicant's description of the events given in the course of the investigation proceedings and at the trial was contradictory but even if the version given at the trial was correct, the situation described by him was not such as to justify the shooting as a defensive measure or to give the applicant the impression that he had to defend himself by shooting the male victim.           Furthermore, it had not been necessary, in the opinion of the Supreme Court, to put the question separately with regard to each victim whether the killing in each case constituted murder or homicide.   The Supreme Court pointed out that the jury had been instructed that they could also answer a question in the affirmative but with a reservation.   Furthermore, the guidelines for jury members explained that that question could be answered in part.     COMPLAINTS           The applicant considers that the criminal proceedings both before the Court of Assizes and the Supreme Court violated Article 6 of the Convention.   He maintains that the question should have been put to the jury for their decision whether or not he killed the male victim in self-defence or in putative self-defence, because the determination of this question necessitated an evaluation of evidence. The Supreme Court wrongly evaluated the evidence itself while it would have been the task of the jury to decide whether or not facts could be considered to be established which justified the applicant's action as a measure of putative self-defence.           The principle of a fair trial also required that the jury be informed that the question was of importance as to whether the killing of each of the three victims constituted murder or homicide.   It was evident that this question raised distinct problems in relation to the male victim, in relation to his former concubine, who had deceived him, and in relation to the third victim.   As the jury's attention had not been drawn to these particular and distinct situations he had been deprived of the possibility that the jury qualified at least the killing of the male victim and/or his concubine as an act of homicide instead of murder.           Finally, the applicant complains that no reasons are given for the verdict of a jury and that a convict is consequently deprived of the possibility of effectively preparing an appeal as he does not know which consideration lead the jury to affirm his guilt.   While in the Anglo-Saxon jury trials the transcript of the trial and the judge's summing up served as a basis to prepare an appeal there was no summing up under Austrian procedural law and the record of the trial was of no relevance for the preparation of a plea of nullity in accordance with Section 345 (1) of the Code on Criminal Procedure (StPO). 13372/87     THE LAW   1.       The applicant has complained that in his trial on charges of murder or homicide the question was not put to the jury of whether or not he acted in self-defence vis-à-vis one of the three victims or at least in putative self-defence.   He further complains that the question of whether the killing constituted either murder or homicide only was put globally instead of individually, i.e. in regard of each victim.           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).           As to the alleged violations of Article 6 (Art. 6) of the Convention, the Commission notes that the question of whether or not there had been a real or imagined self-defence situation was also examined and denied by the Supreme Court.   This court's finding is however, contrary to the applicant's submission, not based on the evaluation of evidence as the Supreme Court proceeded on the assumption that the applicant's ultimate description of the events was correct.           The Supreme Court furthermore pointed out that the jury had been adequately instructed as to the possibility of its answering only in part or with reservations the questions put to it.           In this context the Commission also notes that the applicant did have the possibility of requesting the trial court, in accordance with Section 310 (3) of the Austrian Code on Criminal Procedure (StPO), to amend or to supplement the questions that were put to the jury.           In these circumstances there is no appearance of a violation of Article 6 (Art. 6) of the Convention and this part of the application would have had to be rejected as being manifestly ill-founded within the meaning of Article 27 (2) (Art. 27-2) of the Convention had the applicant exhausted remedies.   2.       The applicant has further complained that the conviction by a Court of Assizes under the relevant Austrian procedural law, is incompatible with the notion of a fair trial within the meaning of Article 6 (Art. 6) of the Convention because no reasons are stated in the judgment as to the verdict of the members of the jury and consequently an effective control of the judgment was impossible.   The applicant points out that unlike in jury trials before British courts there is, under the Austrian system, no summing up by the presiding professional judge.   Furthermore, he submits that according to Section 345 (1) of the Austrian Code on Criminal Procedure the record of the trial cannot be the basis for substantive grounds of appeal, unlike the transcript of the trial before British courts.           The Commission first points out that it is not competent to examine in the abstract the compatibility of a given legislative regulation with the Convention (Eur.   Court H.R., Case of Klass and others, judgment of 6 September 1978, Series A no. 28, p. 18, para. 33). As regards the particular circumstances of the proceedings in the applicant's case the Commission notes that according to the uncontested content of the record of the trial the applicant had admitted shooting his former concubine, her new friend and the sister of the latter.   The Commission further notes that under Section 331 (3) of the Austrian Code on Criminal Procedure the jury's spokesman has to indicate in writing the jury's considerations which were determinative for their answers to the questions put to them by the Court.   This provision was complied with in the applicant's case and the jury's notes were available to him.           In these particular circumstances an examination by the Commission of this complaint as it has been submitted does not disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in Article 6 (Art. 6).           It follows that the application is manifestly ill-founded within the meaning of Article 27 (2) (Art. 27-2) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE.     Deputy Secretary to the Commission            President of the Commission                  (J. RAYMOND)                                  (C.A. NØRGAARD)