CEDH · CASELAW;REPORTS;ENG — 17 mars 1989

.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 }  Application No. 10532/83   Helmut ALDRIAN   against   AUSTRIA               REPORT OF THE COMMISSION   (adopted on 17 March 1989)       10532/83     - i -       TABLE OF CONTENTS                                                              Page     I.       THE PARTIES         (paras. 1-2)                                        1       II.      SUMMARY OF THE FACTS         (paras. 3-6)                                        1       III.     PROCEEDINGS BEFORE THE COMMISSION         (paras. 7-19)                                       1-3       IV.      THE DECISION OF THE COMMISSION         (paras. 20-22)                                      4       APPENDIX:   Decision as to the admissibility,            15 December 1987                                 5-21       I.     THE PARTIES   1.       This report, drawn up by the Commission in accordance with Rule 54 of its Rules of Procedure, concerns the application introduced by Helmut ALDRIAN against Austria and registered under file No. 10532/83.   2.       Before the Commission, the applicant was represented by Rechtsanwalt Dr.   Karl Bernhauser of Vienna;   the Austrian Government were represented by their Agent, Botschafter Dr.   Helmut TÜRK, Head of the International Law Department, Federal Ministry of Foreign Affairs.   II.    SUMMARY OF THE FACTS   3.       The facts of the case are set out in the Commission's Decision as to the admissibility of the application of 15 December 1987, attached hereto as an Appendix (pp. 5 -21).   They may be summarised as follows:   4.       The applicant was charged with murder after having attacked four, and killed two, of his fellow soldiers while doing military service with an Austrian peace-keeping contingent in Syria.   A first trial took place in December 1979 before a Court of Assizes of the Vienna Regional Criminal Court.   The three experts disagreed on the question of the applicant's criminal responsiblity.   The Court refused to obtain an expert opinion from a university medical faculty (Fakultätsgutachten, Section 126 of the Code of Criminal Procedure). The jury found the applicant guilty.   He was given a life sentence. Upon his plea of nullity the Supreme Court on 16 December 1980 quashed this judgment, directing the trial court to determine the applicant's criminal responsibility on the basis of a medical faculty opinion.   5.       At a new trial in September 1982 the individual experts maintained the views expressed at the first trial.   The faculty opinion concluded that the applicant's criminal responsibility at the time of the crime was excluded by a pathological state of intoxication.   In its verdict of 22 September 1982 the jury found the applicant criminally responsible.   He was again convicted of murder and given a life sentence.   On 26 April 1983 the Supreme Court rejected his plea of nullity.   6.       Before the Commission, the applicant alleged that Article 6 paras. 1 and 3 (d) of the Convention had been violated.   III.   PROCEEDINGS BEFORE THE COMMISSION   7.       The application was introduced on 27 June and registered on 17 August 1983.   8.      On 7 July 1986 the Commission decided to give notice of the application to the respondent Government and to invite them, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to submit before 24 October 1986 observations in writing on the admissibility and merits of the application.   9.      The Government submitted their observations on 21 October 1986 and the applicant submitted observations in reply on 29 December 1986.   10.      On 13 March 1987, the Commission decided to grant free legal aid to the applicant under the Addendum to its Rules of Procedure.   11.      On 13 May 1987 the Commission decided, pursuant to Rule 40 para. 3 (b) of the Rules of Procedure, to invite the parties to submit further observations orally at a hearing on the admissibility and merits of the application.   12.      At the hearing on 15 December 1987 the parties were represented as follows:           - the Government by their Agent, Ambassador Dr.   Helmut Türk, and by Dr.   Wolf Okresek, of the Constitutional Law Department of the Federal Chancellery, and Dr.   Irene Gartner, of the Federal Ministry of Justice, Advisers;           - the applicant by Dr.   Richard Soyer, criminal defence counsel, acting as substitute for the applicant's legal representative, Dr.   Karl Bernhauser.     13.      Following the hearing, the Commission declared the application admissible and invited the parties to submit additional information on the facts before 31 January 1988.   The applicant submitted the information on 28 January 1988 and the Government on 2 and 8 February 1988.   14.      On 10 March 1988 the Commission approved the text of the decision on admissibility which was communicated to the parties on 21 March 1988.   They were invited to submit before 6 May 1988 any further observations which they wished to make on the merits.   The applicant submitted observations on 6 May 1988, the Government, after having been granted an extension of the time-limit, on 25 May 1988.   15.      On 12 December 1988, the Commission considered the merits of the application.   16.      On 9 January 1989 the applicant informed the Commission of his readiness to withdraw the application if he was released by an act of grace and if his costs not covered by the Commission's legal aid were reimbursed by the Government.   17.      On 21 February 1989 the Government addressed the following letter to the Commission:     "...............I have the honour to inform you that in the above mentioned case a friendly settlement was reached with the applicant.   On the part of the Austrian Government, the friendly settlement foresees   -        the reduction, as a measure of grace, of the         applicant's prison sentence for life to 15         years of imprisonment;   -        the payment of a lump sum of AS 50,000.- for the         costs of proceedings of the complaint procedure.   In view of this friendly settlement, the Austrian Government requests to strike the above application off the Commission's list of pending cases."   18.      On 27 February 1989 a copy of this letter was transmitted to the applicant's lawyer who on 2 March 1989 replied in the following terms:       "The applicant declares that, having regard to the conditions mentioned in the letter of the Austrian Government of 21 February 1989, he agrees to the withdrawal of the application in accordance with Rule 54 of the Rules of Procedure.   The withdrawal of the application is, however, subject to the reservation that the application will be reactivated if the Austrian Federal President should not give his necessary consent to the friendly settlement by granting an act of grace."   19.      On 17 March 1989 the Commission resumed its examination of the application, the following members being present:                   MM. S. TRECHSEL, Acting President                   J. A. FROWEIN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ              Mr.   C. L. ROZAKIS              Mrs.J. LIDDY              Mr.   L. LOUCAIDES   and decided to adopt the present Report. IV.      THE DECISION OF THE COMMISSION   20.      The Commission notes the request of the Government to strike the application off the Commission's list of cases, and the applicant's declaration that he wishes to withdraw the application in view of the solution of the case which has been agreed between his lawyer and the Government.   21.      The Commission finds, therefore, that the applicant no longer wishes his case to be examined, and that reasons of a general character affecting the observance of the Convention do not warrant further examination of the application.   22.      For these reasons, the Commission, having regard to         Rules 44 para. 1 (b), 49 and 54 of its Rules of Procedure,           - decides to strike Application No. 10532/83 off its           list;           - adopts the present Report;           - decides to send the present Report to the Committee of           Ministers for information, to send it also to the           parties, and to publish it.     Secretary to the Commission              Acting President of the Commission              (H. C. KRÜGER)                           (S. TRECHSEL)