CEDH · CASELAW;REPORTS;ENG — 10 mars 1994

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 15701/89                               Alexander Wick                                   against                                   Austria                          REPORT OF THE COMMISSION                         (adopted on 10 March 1994)                              TABLE OF CONTENTS                                                                    Page   INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1   PART I:   STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . 3   PART II: SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . . 5                                INTRODUCTION   1.     This Report relates to the application introduced under Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by Mr. Alexander Wick against Austria on 19 October 1989.   It was registered on 26 October 1989 under file No. 15701/89.         The applicant was represented by Mr. A. Friedberg, lawyer, Vienna.         The Government of Austria were represented by their Agent, Mr. Franz Cede.     2.     On 30 August 1993 the Commission declared the application admissible. It then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows:         "In the event of the Commission accepting a petition referred to       it:         a.    it shall, with a view to ascertaining the facts, undertake       together with the representatives of the parties an examination       of the petition and, if need be, an investigation, for the       effective conduct of which the States concerned shall furnish all       necessary facilities, after an exchange of views with the       Commission;         b.    it shall at the same time place itself at the disposal of       the parties concerned with a view to securing a friendly       settlement of the matter on the basis of respect for Human Rights       as defined in this Convention."   3.     The Commission found that the parties had reached a friendly settlement of the case and on 10 March 1994 it adopted this Report, which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.         The following members were present when the Report was adopted:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            F. ERMACORA            E. BUSUTTIL            G. JÖRUNDSSON            A.S. GÖZÜBÜYÜK            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS       Mrs. G.H. THUNE       MM.   F. MARTINEZ            C.L. ROZAKIS       Mrs. J. LIDDY       MM.   L. LOUCAIDES            J.-C. GEUS            M.P. PELLONPÄÄ            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            N. BRATZA            I. BÉKÉS            J. MUCHA            E. KONSTANTINOV            D. SVÁBY                                   PART I                           STATEMENT OF THE FACTS   4.     The applicant is an Austrian citizen, born in 1964 and resident in Vienna.   The applicant's representative before the Commission did not act for him in the proceedings before the domestic courts.   The facts, as submitted by the parties, may be summarised as follows:   5.     On 14 February 1989 the applicant was convicted of robbery by the Vienna Regional Court (Landesgericht) and sentenced to four years' imprisonment.   He had had an officially appointed lawyer for his trial. Representation by a lawyer is compulsory in such cases. The appointment includes preparation of appeal papers.   6.     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 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.   7.     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.   8.     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.   9.     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.   10.    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.   11.    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.                                   PART II                              SOLUTION REACHED   12.    Following the decision on the admissibility of the application, the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   13.    In accordance with the usual practice, the Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement.   14.    Following an exchange of correspondence, the Commission considered the question of a settlement on 4 December 1993, and made specific settlement proposals.   The terms were included in a Declaration which was returned to the Commission by the Government on 1 February 1994 and by the applicant on 9 February 1994.   The settlement provided as follows:   [Translation]      "Declaration by the parties with a view to a friendly settlement         In connection with Application No. 15701/89 by Mr. Alexander Wick, the parties, with reference to Article 28 para. 1 (b) of the European Convention on Human Rights and to the assistance of the European Commission of Human Rights, declare as follows:         1.    The Government of the Republic of Austria will pay to the       applicant a sum amounting to altogether AS 50,000 as compensation       in respect of any possible claims relating to the present       application.   This sum includes AS 30,000 in respect of costs and       expenses incurred before the Commission.         This amount will be paid to the applicant's representative,       Mr. A. Friedberg (Postsparkasse 60 000 - 2369.220) in Vienna.         2.    The applicant waives any further claims against the       Republic of Austria relating to the present application."   [German]               "Erklärung der Parteien zur gütlichen Regelung         In der Individualbeschwerde Nr. 15701/89 des Herrn Alexander Wick, verständigen sich die Parteien unter Bezugnahme auf Artikel 28 Abs. 1 b der Europäischen Konvention zum Schutze der Menschenrechte und Grundfreiheiten und unter Mitwirkung der Europäischen Kommission für Menschenrechte auf die nachstehende gütliche Regelung:         1.    Die österreichische Regierung zahlt dem Beschwerdeführer       als Ausgleich für sämtliche etwaigen Ansprüche im Zusammenhang       mit der vorliegenden Individualbeschwerde einen Gesamtbetrag von       AS 50 000.   Dieser Betrag umfasst AS 30 000 hinsichtlich der       Gebühren und Auslagen, die im Rahmen des Verfahrens vor der       Kommission entstanden sind.         Dieser Betrag wird an den Verfahrensbevollmächtigten des       Beschwerdeführers Herrn Dr. A. Friedberg in Wien       (Postsparkasse 60 000 - 2369.220) überwiesen.         2.    Der Beschwerdeführer verzichtet auf die Geltendmachung       allfälliger weiterer Forderungen gegen die Republik Österreich       im Zusammenhang mit dem der Beschwerde zugrundeliegenden       Sachverhalt."   15.    At its session on 10 March 1994, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.   16.    For these reasons, the Commission adopted the present Report.   Secretary to the Commission              President of the Commission          (H.C. KRÜGER)                            (C.A. NØRGAARD)