CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 août 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                         Application No. 15701/89                       by Alexander WICK                       against Austria         The European Commission of Human Rights sitting in private on 30 August 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  Mrs. J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA              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 19 October 1989 by Alexander WICK against Austria and registered on 26 October 1989 under file No. 15701/89;         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 applicant is an Austrian citizen born in 1964. He is represented before the Commission by Mr. A. Friedberg, a lawyer practising in Vienna.   The applicant's present representative did not act for him in the proceedings before the domestic courts.   The facts, as submitted by the parties, may be summarised as follows:         On 14 February 1989 the applicant was convicted of robbery by the Vienna Regional Court (Landesgericht) and sentenced to four years' imprisonment.   He had an officially appointed lawyer for his trial. Representation by a lawyer is compulsory in such cases. The appointment includes preparation of appeal papers.         After judgment, which was pronounced immediately, the applicant and his lawyer asked for extra time to consider appeals. The applicant's representative states that the question of appeals was discussed at the end of the trial, and that it was agreed that the lawyer would initially make the notice of intention to bring a plea of nullity and an appeal against sentence.   The request for time to consider appeals was granted, and the three day time-limit began to run.   On 15 February 1989 the applicant's lawyer lodged a notice of intention to appeal against sentence and to make a plea of nullity against the judgment.   In the course of the proceedings before the Commission the applicant's present representative has submitted a copy of a letter of 15 February 1989 from the then representative to the applicant in prison, informing the applicant that the lawyer had given notice of intention to make both the appeal against sentence and, as a precaution (in case there should be an error on the face of the judgment when received) a plea of nullity.   He added that if the judgment disclosed no ground of nullity, he would only make the appeal against sentence.         On 17 February 1989 the applicant, who had been detained in custody after sentencing, was asked by a prison guard whether he wished to file an appeal.   The guard explained to the applicant that there were two types of appeal, one being a complaint as to the proceedings (plea of nullity - Nichtigkeitsbeschwerde) and the other being a complaint about sentence (appeal against sentence - Berufung).   The applicant signed the pre-printed form which had been completed by the guard and in which he stated his intention to file a plea of nullity and explicitly waived his rights to other remedies.   There were no consultations between the lawyer and the applicant at this stage.         The lawyer received the written reasons for the judgment on 24 February 1989 and, on 8 March 1989, submitted an appeal document in which he formally made an appeal against sentence and withdrew the plea of nullity announced on 15 February.         On 7 April 1989 the applicant and the guard concerned were questioned by a judge.   The applicant stated that he had not realised that a lawyer had been appointed for the entirety of the proceedings. He did not want to change lawyer. He also stated that he had been sent a copy of the lawyer's appeal document with an explanation of why the lawyer had withdrawn the plea of nullity.   The applicant confirmed that the lawyer had properly presented the applicant's interests.   The prison guard stated that he invariably tells prisoners briefly about the difference between a plea of nullity and an appeal against sentence, and confirmed that the applicant had said "plea of nullity". The guard confirmed that he had made the deletions in the pre-printed form.   He added that he could not tell whether the applicant had misunderstood him and made the wrong choice, possibly because he was worked up as a result of the sentence.         On 17 April 1989 the applicant's appeal was rejected by the Vienna Court of Appeal (Oberlandesgericht).   It noted that the applicant had entered a plea of nullity himself and waived all other remedies.   It also noted that the applicant's properly appointed lawyer had withdrawn the plea of nullity and made an appeal against sentence. The court recalled that one of the grounds for rejection of an appeal in camera was that the person had waived that appeal.   The applicant had waived his rights to an appeal against sentence and such a waiver was irrevocable.   Such a waiver was effective, regardless of the reasons for its having been made.   An officially appointed lawyer, like a private lawyer, was only able to act where the defendant had not stated his desires.   On the other hand, the withdrawal of the plea of nullity by the lawyer was effective even against the will of the defendant.         On 12 July 1990 the Minister for Justice gave a written reply to a parliamentary question concerning the pre-printed form which the applicant had signed.   He stated that, since 7 May 1990, the form was no longer in use.   In particular, he considered that the form was inadequate in several respects.   He referred to the lack of clarity and to the absence of sufficient information concerning appeals. It was a particular concern of the Ministry that, although permissible in law, pre-printed forms should not be used for waivers of remedies.   He underlined that the form was only for use in the case of defendants who were not represented and reminded the parliamentarians that, as a result of Article 182 of the Code of Criminal Procedure (Strafprozeßordnung), very few unrepresented defendants were detained after the first instance judgment.   As the form was not used very often, its continued use did not appear appropriate.   COMPLAINTS         The applicant complains that he was denied access to court because the Vienna Court of Appeal accepted his waiver of the appeal against sentence in circumstances where that waiver had been made under a misapprehension which was compounded by the information given by the prison guard.   He initially alleged a violation of Article 6 para. 1 of the Convention and subsequently, in his observations submitted after communication of the application to the respondent Government, referred also to Article 6 para. 3(c) of the Convention and Article 2 of Protocol No. 7.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 19 October 1989 and registered on 26 October 1989.         On 7 October 1991 the Commission decided to request the parties to submit written observations on the admissibility and merits of the application.         The Government submitted their observations on 24 January 1992. The applicant submitted his on 24 March 1992 and 25 May 1992.         On 11 February 1993 the applicant submitted replies to questions put to him pursuance to Rule 47 para. 2 (a) of the Commission's Rules of Procedure.   The Government submitted their comments thereon on 29 March 1993.     THE LAW         The applicant complains of a denial of access to court in that his waiver of an appeal against sentence was accepted by the Vienna Court of Appeal even though that waiver was made under a misapprehension. Initially he alleged violation of Article 6 para. 1 of the Convention and subsequently referred also to Article 6 para. 3 (c) of the Convention and Article 2 of Protocol No. 7 (Art. 6-1 , 6-3- c, P7-2).         Article 6 para. 1 (Art. 6-1) of the Convention provides, as far as relevant as follows:         "In the determination of ... any criminal charge ...       everyone is entitled to a fair and public hearing ... by an       independent and impartial tribunal established by law. ..."         The Government submit that the application is manifestly ill- founded.   They point out that the applicant, who had applied for and received legal aid, knew that he was represented and could have asked to see the lawyer before completing the form.   They regard the absence of contact between the lawyer and the applicant as a matter for which they are not responsible. They consider that the applicant must have thought it unnecessary to consult his lawyer on the question of an appeal against the sentence, and that accordingly he must accept that the Vienna Court of Appeal would not overturn his "waiver".   For the Government, it must be acceptable to take the line that, if contradicting remedies are pursued by a defendant and his representative, it is the will of the defendant which prevails.   As to the events between 15 and 17 February 1989, the Government point out that the applicant is not able, through his then lawyer, sufficiently to establish that the lawyer in fact sent the letter of 15 February, or that (and when) the applicant received it.         The applicant points out that the form used in the present case was intended for defendants who are not represented and that it should therefore not have been used at all in the present case.   He also points out that he was taken from his cell to the prison offices to fill in the form, that he did not have the files with him, and that the declaration was made at 11.50 am, i.e. just before lunch and obviously under pressure. He further points out that there was not, in any realistic way, any possibility whatsoever of contacting the lawyer, and that the lawyer and the applicant did in fact have a short conversation immediately after the trial.   He concludes that it is incompatible with the principles of a fair trial that, in cases in which an accused must be represented, the accused's own declarations are given priority over those of the lawyer appointed for the entire proceedings.   This is particularly the case in exercising remedies, as the decision on whether or not to pursue a remedy, must depend on the legal advice given by the person appointed for that purpose.         The Commission finds that the application raises complex issues of fact and law under the Convention, the determination of which must be reserved to an examination of the merits.         The application cannot therefore be declared manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.           For these reasons, the Commission by a majority           DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits       of the case.     Secretary to the Commission          President of the Commission           (H.C. KRÜGER)                       (C.A. NØRGAARD)