CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1991

.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. 15975/90                         by G.                         against Austria               The European Commission of Human Rights sitting in private on 1 July 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                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 30 June 1989 by G. against Austria, and registered on 11 January 1990 under file No. 15975/90;           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 facts of the case, as they have been submitted by the applicant, may be summarised as follows.           The applicant, born in 1952, is an Italian national.   He has lived in Austria since 1960.   When lodging his application he was detained at a prison in Vienna.   Before the Commission he is represented by Mr.   K. Bernhauser.     A.       Particular circumstances of the case           On 18 March 1983 the Court of Assizes of the Vienna Regional Court sitting with a jury (Geschwornengericht) convicted the applicant of murder and sentenced him to life imprisonment.   In these and the following proceedings the applicant was represented by counsel.           On 4 October 1983 a Chamber of the Austrian Supreme Court (Oberster Gerichtshof), composed of the Presiding Judge Fa. and the Judges Be., Fr., La. and Br., dismissed the applicant's plea of nullity (Nichtigkeitsbeschwerde).   Upon the applicant's appeal (Berufung), the sentence was reduced to eighteen years' imprisonment. Subsequently, the applicant started to serve his sentence.           On 28 February 1987 the Vienna Court of Appeal (Oberlandes- gericht), upon the applicant's appeal (Beschwerde), granted his request for a retrial in view of new evidence on the question of the applicant's criminal responsibility.           On 22 June 1988 a new trial started before the Court of Assizes of the Vienna Regional Court sitting with a jury.   The Court heard several witnesses.   Furthermore, two medical experts were heard on the question of the applicant's criminal responsibility, having particular regard to the alleged taking of drugs.           On 1 July 1988 the Court of Assizes noted that the jury had unanimously found the applicant guilty of murder, had unanimously denied that he was not criminally responsible and had also found him guilty of unlawful possession of a weapon.   The Court of Assizes convicted the applicant of murder and unlawful possession of a weapon, and sentenced him to sixteen years' imprisonment.           The applicant lodged a plea of nullity and an appeal against sentence (Berufung) with the Supreme Court, and filed the reasons on 24 August 1988.   He referred to S. 345 para. 1, Nos. 4, 6, 8 and 10a, of the Code of Criminal Procedure (Strafprozessordnung) and submitted in particular that the questions to the jury had not been properly put.   Furthermore, having regard to the testimony of one witness and the evidence given by one of the experts, there were serious doubts as to the facts upon which the decision of the jury as to his criminal responsibility was based.   He also argued that the Regional Court had not correctly assessed the length of his sentence.           On 12 September 1988 the Vienna Public Prosecutor's Office (Staatsanwaltschaft) filed an appeal requesting in particular that the sentence be increased according to the applicant's guilt.   The applicant's comments on this appeal were received by the Vienna Regional Court on 29 September and 6 October 1988.         On 12 January 1989 the Supreme Court, sitting as a chamber with the Presiding Judge Be. and the Judges Fr., Re., Br. and Ku., rejected the applicant's application of 2 November 1988 for his personal attendance at the hearing.   The Supreme Court, referring to S. 286 para. 2 and S. 296 para. 3, second sentence, of the Austrian Code of Criminal Procedure, found that the applicant's request had been lodged out of time, and that furthermore his personal attendance was not necessary in the interest of justice.   The applicant, being detained, had failed to ask for his personal attendance in his appeal and in his submissions commenting upon the appeal of the Public Prosecutor's Office.           On 17 January 1989 the Supreme Court, after a public hearing in the presence of the applicant's defence counsel, dismissed the applicant's plea of nullity.   Upon the appeal of the Public Prosecutor's Office, the sentence was increased to eighteen years' imprisonment. In this respect the Supreme Court deviated from the Regional Court's weighing of the aggravating and mitigating circumstances.   B.       Relevant domestic law           SS. 67 to 74 (a) of the Austrian Code of Criminal Procedure (Strafprozeßordnung) concern the disqualification and challenge of judges and other members of a court.           According to S. 67 a judge is disqualified if he is the victim of the offence at issue or if he is related to the accused, the victim, the public prosecutor, the private prosecutor or the defence counsel.           S. 68 disqualifies any judge on grounds of conflict of interest, namely as being a witness or expert, having laid the charges concerned or acted as public prosecutor, as having represented the private prosecutor, the private party or the accused, as having acted as court witness, or having otherwise an interest in the outcome of the case.   Furthermore, judges having acted in the same case as investigating judge, or having participated in the decision of the accused's appeal against his committal for trial are disqualified from participating in the trial, as well as judges having participated in a first trial, if a new trial has to take place after successful nullity or appeal proceedings.           S. 69 provides that members of courts of higher instances are also disqualified if they acted as investigating judge, if they participated in a decision at a lower instance, and they are disqualified as presiding judge or rapporteur, if they are, within the meaning of S. 67, related to a person having acted as investigating judge or rapporteur at a lower instance.           Under S. 72 of the Code of Criminal Procedure a public prosecutor, private party, private prosecutor or accused may challenge members of the court, if there are other reasons than those mentioned in SS. 67 to 69, which may raise doubts as to the complete impartiality of the person concerned.   Judges are obliged to give notice of any reason, which could give rise to doubts as to their complete impartiality.           S. 73 provides inter alia that a motion of challenge has to be filed with the court, of which the judge challenged is a member, and that the reasons for the motion have to be indicated precisely. S. 74 para. 1 stipulates that as a rule the President of the court, of which the judge concerned is a member, decides on the motion of challenge; paragraph 2 regulates the competence to decide upon motions to challenge the President of a district court, a full court of first instance or its President or a full appellate court or its president.           A plea of nullity against a judgment of an Assize Court may only be based upon the specific reasons enumerated in S. 345 para. 1 of the Code of Criminal Procedure.   Thus a plea of nullity may be lodged where during the trial hearing there has been a breach of, or a failure to comply with, a provision in respect of which it is expressly provided that such breach or failure shall entail nullity (para. 1 No. 4); if provisions concerning the questions to the jury were violated (para. 1 No. 6); if the presiding judge incorrectly explained the law to the jury (para. 1 No. 8); if there are considerable doubts as to the correctness of the relevant facts upon which the vote of the jury was based (para. 1 No. 10a).           According to S. 286 para. 2 of the Code of Criminal Procedure, in nullity proceedings before the Supreme Court, an unrepresented defendant in custody has to be informed of the date set down for the hearing and advised that he may only appear through a lawyer.           According to S. 296 para. 3, second sentence, of the Code of Criminal Procedure, in appeal proceedings before the Supreme Court, the defendant not in custody shall always be summoned and 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 presence appears to be necessary in the interests of the proper administration of justice or for other reasons.     COMPLAINTS   1.       The applicant complains that, unlike a defendant not in custody, he could not attend the hearing before the Supreme Court in person.   Furthermore he complains that the Supreme Court did not properly review the Regional Court's judgment, and did not give sufficient reasons for its decision.   He invokes Articles 6 para. 1 and 14 of the Convention and Article 2 para. 1 of Protocol No. 7 to the Convention.   2.       He complains under Article 6 para. 1 of the Convention that his plea of nullity and appeal were not heard by an impartial court on the ground that three of the five judges at the Supreme Court deciding upon his plea of nullity and appeal in 1989 had already been dealing with his case in the nullity and appeal proceedings in 1983.   He considers that he could not have lodged a motion to challenge these judges.     THE LAW   1.       The applicant complains about the judgment of the Austrian Supreme Court of 17 January 1989, and also of the proceedings concerned.           Insofar as the applicant appears to complain about the decision of the Supreme Court as such, the Commission recalls that, in accordance with Article 19 (Art. 6) 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 (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).           The applicant complains under Article 6 para. 1 and Article 14 (Art. 6-1, 14) of the Convention and Article 2 para. 1 of Protocol No. 7 (P7-2-1) to the Convention that, unlike a defendant not a custody, he could not attend the hearing before the Supreme Court in person.           Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, insofar as relevant, provide as follows:   "1.    In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ...   3.    Everyone charged with a criminal offence has the following minimum rights:        (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ..."           Article 14 (Art. 14) of the Convention reads as follows:   "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."           Article 2 para. 1 of Protocol No. 7 (P7-2-1) provides in particular that "everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal".           The Commission has first examined the applicant's complaint that the Supreme Court dismissed his request to attend the oral hearing on his appeal in person.           The Commission recalls that Article 6 para. 1 and para. 3 (d) (Art. 6-1, 6-3-d) 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.   No. 7138/75, Dec. 5.7.77, D.R. 9 p. 50; No. 8289/79, Dec. 5.3.80, D.R. 18 p. 160; No. 9315/81, Dec. 15.7.83, D.R. 34 p. 96).           Furthermore a difference in treatment between defendants at liberty and those in custody as regards their personal attendance at a hearing on appeal can be justified and does not necessarily amount to discrimination contrary to Article 14 (Art. 14) of the Convention (Eur.   Court H.R., Kamasinski judgment of 19 December 1989, Series A No. 168, pp. 44 - 45, paras. 104 - 108).           The Commission notes that under S. 296 para. 3 of the Austrian Code of Criminal Procedure the defendant in custody shall be brought before the Supreme Court at a hearing, if he so requests in his appeal or his counter-statements to the appeal of the public prosecutor, or if his presence appears to be necessary in the interests of the proper administration of justice or for other reasons.   In the present case, the Supreme Court rejected the applicant's request, filed by his defence counsel, to attend the hearing of his appeal in person on the ground that he had lodged his request out of time, namely not in his appeal or in his submissions commenting upon the appeal of the Public Prosecutor's Office.   Furthermore his personal attendance was not necessary in the interest of justice.           It follows that the applicant is himself responsible for the fact that he was not present at the hearing of the appeal proceedings before the Supreme Court.           The Commission, considering that the applicant's plea of nullity and appeal as well as his counter-statements to the appeal of the Vienna Public Prosecutor's Office were presented in writing by his defence counsel, who attended the hearing before the Supreme Court, finds no indication that the refusal of his personal attendance violated the rights invoked by the applicant, in particular his right to a fair trial under Article 6 para. 1 (Art. 6-1) of the Convention.           Furthermore the Commission, having considered the applicant's complaint that the Supreme Court did not properly review the Regional Court's judgment, and did not sufficiently reason its decision, finds that there is nothing in the file to indicate that the Supreme Court did not duly take the applicant's submissions and arguments into account, and that the proceedings were thus unfair.           Consequently, this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       Furthermore, the applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that three of the five judges at the Supreme Court deciding upon his plea of nullity and appeal against sentence in 1989 had already been involved in the first nullity and appeal proceedings in 1983.   He considers that he was not heard by an impartial court. He submits in particular that in 1989 the Supreme Court increased the sentence to eighteen years' imprisonment as it had fixed the sentence in 1983.           The Commission notes that the applicant did not lodge a motion to challenge the three judges concerned for bias, although he was informed about the composition of the Supreme Court, at the latest by the decision rendered on 12 January 1989.   The applicant submits that such a challenge would not have had any prospect of success.   It is true that the prior participation of a Supreme Court Judge in nullity and appeal proceedings concerning the same case does not figure amongst the reasons for disqualification of judges set out in SS. 67 to 69 of the Code of Criminal Procedure.   Moreover, the procedural requirements for a challenge of several judges of the Supreme Court including the Presiding Judge do not clearly follow from SS. 73 and 74 of the Code of Criminal Procedure.           However, the Commission leaves the question open whether the applicant must be considered as having waived his right to have his case determined by an impartial court on the ground that his complaint in this respect is, in any event, manifestly ill-founded for the following reasons.           The Commission recalls that the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur.   Court H.R., Hauschildt judgment of 24 May 1989, Series A No. 154, p. 21, para. 46).           The applicant does not complain about the lack of personal impartiality of the three Judges.           Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality.   In this respect even appearances may be of a certain importance.   It is decisive whether the fear that a particular judge lacks impartiality can be held objectively justified (Hauschildt judgment, op. cit., p. 21, para. 48).           As regards courts of first instance, there is no general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority (Eur.   Court H.R., Ringeisen judgment of 16 July 1971, Series A No. 13, p. 40, para. 97). Furthermore, it is common in the Convention countries that higher courts deal with similar or related cases in turn (Eur.   Court H.R., Gillow judgment of 24 November 1986, Series A No. 109, p. 28, para. 73).           In the present case in the first set of proceedings in 1983 the Supreme Court dismissed the applicant's plea of nullity and, upon his appeal, reduced his sentence from life imprisonment to eighteen years' imprisonment.   The charges against the applicant were thereby finally determined, but a retrial was held and the case was again taken to the Supreme Court.   In 1989 three of the five judges at the Supreme Court who participated in the above decision of 1983 dismissed the applicant's plea of nullity and, upon the appeal of the Public Prosecutor's Office, increased the sentence from sixteen to eighteen years' imprisonment.           The Commission considers that the Supreme Court, in the nullity and appeal proceedings, had to decide whether there were specific reasons of nullity within the meaning of S. 345 para. 1 of the Code of Criminal Procedure, in particular procedural defects or relevant errors of law committed, or considerable doubts as to the facts found, by the trial court and whether the trial court had correctly assessed the circumstances in respect of the fixing of the sentence.   It was not called upon to decide on the applicant's guilt.   The Presiding Judge Be. and the Judges Fr. and Br. who were twice dealing with the applicant's case remained in the same function in the proceedings.   There are no special circumstances which would objectively justify the applicant's fears that these Judges were lacking impartiality.           It follows that the applicant's complaint that in 1989 his plea of nullity and appeal against sentence were not heard by an impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission, by a majority,             DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission            President of the Commission              (H. C. KRÜGER)                         (C. A. NØRGAARD)