CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 avril 1993

.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. 17358/90                       by M.B.                       against Austria         The European Commission of Human Rights sitting in private on 2 April 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  F. ERMACORA                  G. SPERDUTI                  E. BUSUTTIL                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M. NOWICKI              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 5 October 1990 by M.B. against Austria and registered on 25 October 1990 under file No. 17358/90 ;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to:   -      the observations submitted by the respondent Government on       11 September 1992 and the observations in reply submitted by the       applicant on 26 November 1992;         Having deliberated;         Decides as follows:       THE FACTS         The particular circumstances of the case         The applicant is a Turkish citizen born in 1969.   He lives in Innsbruck.   He was initially represented before the Commission by Mr. A. Heiss.   He is now represented by Mr. W. L. Weh, a lawyer practising in Bregenz.         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant was convicted on 23 March 1990 of attempting to bribe civil servants.   He was fined AS 25,200, suspended for three years.   On 6 March 1990, before the trial had begun, the presiding judge had informed Mr. Heiss, the applicant's lawyer, that one of the judges, Judge Schaumburger, had taken part in the preliminary proceedings at the questioning of witnesses.   The lawyer was asked to inform the court by 16 March 1990 whether he challenged the judge on this ground.   The applicant's lawyer received the note on 12 March and did not reply.   Before the trial began on 23 March, the presiding judge again stated that Judge Schaumburger had officiated as investigating judge for part of the preliminary proceedings.   The trial record states that the parties waived the right to raise this point as a ground of nullity ("Auf Geltendmachung dieses Umstandes als Nichtigkeitsgrund wird allseits verzichtet").   The applicant alleges that the trial record does not include this statement.         The applicant made a plea of nullity and an appeal against sentence to the Supreme Court (Oberster Gerichtshof).   In his plea of nullity (under Article 281 para. 1(1) of the Code of Criminal Procedure (Strafprozeßordnung)) he alleged that he had been heard by a judge who was excluded by operation of law from participation.   He also alleged violations of Article 281 para. 1(4), (5) and (9)(a) of the Code of Criminal Procedure.   In particular, in connection with Article 281 para. 1 (5), the applicant complained that the trial court had found two witnesses completely credible, and had found that contradictions in their stories were easily explained as mistakes of memory.   He alleged that the contradictions were fundamental.   He also stated that there should have been a confrontation between two witnesses and the applicant's brother, who had for a certain time been suspected of the offences.   The prosecution also appealed against the sentence.         On 7 August 1990 the Supreme Court rejected the applicant's plea of nullity under Article 285 para. 1 of the Code of Criminal Procedure. After confirming that a disqualified judge had taken part in the trial, the Supreme Court referred to the waiver contained in the record of the trial proceedings, and noted that Article 281 para. 1 (1) of the Code of Criminal Procedure required a ground of nullity first to have been raised at the trial itself.   In connection with the applicant's plea of nullity under Article 281 para 1 (5) of the Code of Criminal Procedure, the Supreme Court found that the complaints were an attempt to challenge the assessment of the evidence made by the judges of fact, and as such were inadmissible and insufficient to constitute a ground of nullity under Article 281 para. 1 (5) of the Code of Criminal Procedure.   The Supreme Court also found that there had, in fact, been a confrontation between the two witnesses and the applicant's brother, notwithstanding the applicant's allegation that there had been none. The plea of nullity was rejected.   The Supreme Court remitted the question of the applicant's appeal against sentence to the Innsbruck Court of Appeal (Oberlandesgericht).         The applicant's lawyer, Mr. Heiss, received the Supreme Court's decision on 6 September 1990.         On 3 October 1990 the Innsbruck Court of Appeal, after an oral hearing, increased the applicant's sentence to nine months' imprisonment.   Mr. Heiss received this decision on 16 October 1990.         Relevant domestic law         Article 68 para. 2 of the Code of Criminal Procedure (Straf- prozeßordnung) provides that "a person shall be disqualified from participating or deciding in the trial proceedings if he has acted as investigating judge in the same case ..."         Article 281 para. 1 of the Code of Criminal Procedure provides for the specific grounds on which a plea of nullity may be made.   These include:         "1.   if the court was not properly constituted, ... or if a judge       took part in the decision who is excluded (under Articles 67 and       68), unless the cause of the plea of nullity was known to the       applicant before or during the trial, and was not raised by him       at the beginning of the trial or as soon as he became aware of       it,       ...       5.   if the judgment of the trial court in respect of decisive       facts is unclear, incomplete or self-contradictory ..."         Article 285 (d) para. 1 of the Code of Criminal Procedure provides:         "A plea of nullity may be rejected immediately after deliberation       in private:         1.   if it should already have been rejected by the court at first       instance, pursuant to Article 285 (a) ...,         2.   if the plea of nullity is based on the grounds of nullity       enumerated in Article 281 para. 1 (1-8 and 11) and if the Supreme       Court unanimously finds that the complaint should be dismissed       as manifestly ill-founded without any need for further       deliberation."       COMPLAINTS         In his original application of 5 October 1990 the applicant alleged a violation of Article 6 para. 1 of the Convention by virtue of the participation of a judge who was excluded from the proceedings by operation of law.   He submitted that the prohibition contained in Article 68 para. 2 of the Code of Criminal Procedure was absolute, and that it was not possible to waive the right to object to such participation.         On 6 March 1991 the applicant, now represented by Mr. Weh, submitted a further series of complaints in which, in addition to the complaint concerning the participation of the judge, he complained that the nullity proceedings were in violation of Article 6 para. 1 of the Convention in that no oral hearing had taken place, even though the nullity proceedings in substance dealt with the facts of the case.   He considered that the Austrian reservation to Article 6 of the Convention was incompatible with Article 64.         He also complained that the Procurator General submitted a statement to the Supreme Court which was not made available to the defence, and that   the Supreme Court had divulged the name of the judge rapporteur to the Procurator General in violation of Section 20 of the Supreme Court Act.       PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 5 October 1990 and registered on 25 October 1992.         On 11 May 1992 the Commission decided to communicate the case to the respondent Government for observations.   The Government submitted their observations on 11 September 1992 and the applicant submitted his observations in reply on 26 November 1992.       THE LAW         The applicant alleges violation of Article 6 para. 1 (Art. 6-1) of the Convention in several respects.   Article 6 of the Convention provides, insofar as relevant, as follows:         "1.   In the determination of ... any criminal charge against       him, everyone is entitled to a fair and public hearing within a       reasonable time by an independent and impartial tribunal       established by law."         With regard to the participation of Judge Schaumburger, the Government point out that the applicant was twice given the opportunity to challenge the judge, but did not avail himself of either.   They consider that the applicant has validly waived his right to challenge the judge.   They point out that Judge Schaumburger refrained from any procedural action until the waiver was declared, and that it was the presiding judge (who was not excluded) who invited the applicant's lawyer on each occasion to state whether he objected to the participation of Judge Schaumburger .   The Government consider that it is unrealistic to allege that a refusal to waive would have entailed extra costs and delay as, had the applicant chosen to reject Judge Schaumburger's participation before the trial, the presiding judge would simply have nominated the next judge on the schedule of business to take part in the trial.         The applicant points to a distinction in Austrian law between matters which give rise to an exclusion of a judge and those which give rise to the possibility of challenge:   in cases such as the present, concerning exclusion, that exclusion is fixed by operation of law without the parties' raising it.   The applicant considers that it cannot be possible to waive objection to participation by a judge who is excluded by operation of law, as the very wording of the provision precludes acceptance by a defendant.   He considers therefore that the court was neither "independent and impartial" nor a tribunal "established by law".         As to the question of the absence of a hearing before the Supreme Court, the Government consider that the complaint is covered by the Austrian reservation to Article 6 (Art. 6) of the Convention which provides as follows:         "The provisions of Article 6 (Art. 6) of the Convention shall be       so applied that there shall be no prejudice to the principles       governing public court hearings laid down in Article 90 of the       1929 version of the Federal Constitutional Law."         Whilst the Government accept that a request by the applicant to the Supreme Court to conduct an oral hearing would have had no prospects of success, they consider that the applicant's complaint under Article 281 para. 1 (5) of the Code of Criminal Procedure was rejected by the Supreme Court for legal reasons and without regard to the merits.         The applicant considers in this respect that the Austrian reservation to Article 6 (Art. 6) of the Convention does not comply with the criteria of Article 64 of the Convention, that the plea of nullity raised under Article 281 para. 1 (5) of the Code of Criminal Procedure related exclusively to questions of fact, and that he should therefore have been entitled to a public hearing before the Supreme Court.         As to the complaint that the Procurator General submitted a statement to the Supreme Court which was not made available to the defence, the Government accept that the Procurator General made the following "observations" to the Supreme Court:         "In the view of the Procurator General, the plea of nullity       brought by the accused, M.B., meets the criteria for a decision       pursuant to Art. 285 of the Code of Criminal Procedure.   The       transmission of a copy of the decision is requested."         They also accept that these observations were not served on the applicant.   They consider, however, that the Procurator General's "observations" do not amount to comments on the facts of the case, nor did they amount to factual arguments, such that the principle of "equality of arms" was not violated.         The applicant underlines that the Procurator General is a prosecution authority, and he considers that the fact that the "observations" did not deal with the merits of the case is irrelevant.         The Commission considers that the applicant's complaints as a whole are closely interrelated and cannot be separated.   It further considers that they raise complex and difficult questions of law and fact, including questions relating to the Austrian reservation to Article 6 (Art. 6) of the Convention.   In these circumstances, the applicant's complaints cannot at this stage be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   They require to be determined as to their merits, no other ground of inadmissibility having been established.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION ADMISSIBLE.   Secretary to the Commission                  President of the Commission           (H.C. Krüger)                                 (C.A. Nørgaard)