CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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                           SUR LA RECEVABILITÉ                           Application No. 22961/93                       by Ismail ILHAN                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 21 October 1993 by Ismail ILHAN against Austria and registered on 19 November 1993 under file No. 22961/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      28 June 1995 and the observations in reply submitted by the      applicant on 16 August 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1960, is a Turkish national, residing in Feldkirch. In the proceedings before the Commission he is represented by Mr. F. Graf, a lawyer practising in Feldkirch.   A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 3 November 1992 the Feldkirch District Court (Bezirksgericht), upon the Public Prosecutor's demand for a stated penalty (Strafantrag) issued a penal order (Strafverfügung) against the applicant in summary proceedings without trial. The Court found that the applicant, on 17 August 1992, had, in passing a parked vehicle, driven on the left side of the road with his car and had collided with a motorcyclist, who had fallen down and had suffered a brain concussion. The Court convicted the applicant of having negligently caused bodily harm (fahrlässige Körperverletzung) and imposed a fine of 50 daily rates of AS 100 each (in case of default 25 days' imprisonment).        On 26 January 1993, upon the applicant's objection (Einspruch), a trial was held before the Feldkirch District Court. The applicant did not appear. The Court, referring to S. 459 of the Code of Criminal Procedure (Strafprozeßordnung), decided that the trial be held in the absence of the applicant. It heard H., who had been injured in the traffic accident, as a witness. H. stated that the applicant, in order to pass a parking car, had driven on the left side of the road.        Following the trial, the Court passed a judgment in absentia (Abwesenheitsurteil), convicting the applicant of having negligently caused bodily harm and imposing a fine of 50 daily rates of AS 100 each (in case of default 25 days' imprisonment). However, it suspended the sentence on probation. The Court referred to the police investigations, in particular to the applicant's statement before the police, noting that he himself had admitted that he had driven too far on the left side of the road, and to the corroborating statement of the witness H.        On 22 March 1993 the applicant lodged an objection (Einspruch) against the judgment in absentia. He submitted in particular that the trial should not have been conducted in his absence, as he had not been duly summoned. In these and the following proceedings the applicant was represented by counsel.        Thereupon, the Feldkirch District Court fixed 18 May 1993 as date for rehearing the case. The applicant was summoned by a standard-form letter entitled 'Personal summons of the accused to trial'. The standard text informed him that he was to be heard by the court as an accused and was, therefore, requested to appear at the trial at the date and place indicated. Further the following sentence was added to the standard text: 'Should you fail to appear at the trial, your appeal will be void and the judgment in absentia will become final'. At the bottom of the page, the standard-form letter contained some instructions. They informed the applicant, inter alia, that he had the right to appoint a counsel and that, should he fail to appear at the trial, the hearing would be conducted in his absence or he would be brought before the judge by the police.        On 18 May 1993 the Feldkirch District Court, in presence of the applicant's counsel, noted that the applicant himself had not appeared and decided on the basis of S. 478 para. 3 of the Code of Criminal Procedure that the applicant's objection against the judgment in absentia was to be considered void and that this judgment become final. It considered in particular that the applicant had been duly summoned for the trial of 18 May 1993 and that the summons had drawn his attention to the consequences of his absence.        On 8 July 1993 the applicant filed an appeal (Beschwerde) against this decision. He submitted in particular that it had not been absolutely clear to him that he had to appear personally before the court. Although the summons requested him to appear at the trial, neither the sentence added to the standard text, nor the instructions, requested that he appear in person. On the contrary, the said instructions informed him that he had the right to appoint a counsel and that, should he fail to appear, the trial might be conducted in his absence or he might be brought before the judge by the police. Thus, he could assume that the presence of his counsel at the trial would be sufficient. Moreover, being a Turkish national, he was not familiar with legal German. Finally, the applicant complained that S. 478 para. 3 of the Code of Criminal Procedure was contrary to the requirements of a fair trial as it discriminated against an accused who had already been convicted in absentia.        On 16 July 1993 the applicant, on the Feldkirch Regional Court's (Landesgericht) request, submitted the original of the summons at issue.        On 21 July 1993 the Feldkirch Regional Court, dismissed the applicant's appeal. The court found that the summons had been duly served on the applicant and had explicitly drawn his attention to the consequences of his absence at the trial. It followed from the title of the summons and the additional sentence as well as from the nature of a summons that he was requested to appear personally before the court. Moreover, he had not been prevented from doing so by circumstances beyond his control. As regards the applicant's complaint that S. 478 para. 3 of the Code of Criminal Procedure was discriminatory, the court noted that the accused had to be warned explicitly about the consequences of his absence. Thus, the sanction provided for in the contested provision was objectively justified and was, therefore, in accordance with the requirements of a fair trial.   B.    Relevant domestic law        S. 459 of the Code of Criminal Procedure (Strafprozeßordnung) deals with the case in which the accused, who has been duly summoned, does not appear in proceedings before the district court. It provides that the judge, if he deems it necessary to hear the accused, may order that he appear personally or, if the accused has already been ordered to do so, that he be brought before the court. Otherwise, the judge may start the proceedings, take evidence and, after having heard the prosecutor, give his judgment, which has to be served on the accused.        According to S. 478 the accused, who has been convicted in absentia in accordance with S. 459, can lodge an objection (Einspruch) within two weeks after service of the judgment, if he has not been duly summoned, or if he has been prevented to appear by circumstances beyond his control (paragraph 1). In case the district court finds that the objection is well-founded, it has to fix a date for a new trial. If the accused does not appear, his objection is to be considered void and the contested judgment in absentia becomes final (paragraph 3).   COMPLAINTS        The applicant complains under Article 6 of the Convention that the Feldkirch Regional Court's decision of 21 July 1993 prevented him from defending himself in person or through his counsel. He submits in particular that, as a Turkish national, he is not familiar with legal German and that the summons did not explicitly request him to appear personally at the trial of 18 May 1993. Thus, he could assume that it was sufficient that his counsel be present. Finally, he submits that S. 478 para. 3 of the Code of Criminal Procedure discriminates against an accused, who has already been convicted in absentia as compared to an accused, where this has not yet been the case. In particular he points out that a full rehearing should take place, if counsel for the defence is present, in order to guarantee that requests for the taking of evidence can be made and that the criminal charge be examined in regular proceedings.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 7 October 1993 and registered on 19 November 1993.        On 6 April 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 28 June 1995, after an extension of the time-limit fixed for that purpose. The applicant replied on 16 August 1995.   THE LAW        The applicant complains under Article 6 (Art. 6) of the Convention that, in criminal proceedings against him, he was prevented from defending himself in person or through his counsel.        Article 6 (Art. 6), so far as relevant, reads as follows:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair ... hearing by [a] ...      tribunal ...        3.     Everyone charged with a criminal offence has the following      minimum rights:              c.     to defend himself in person or through legal      assistance of his own choosing ... ."        The Government submit that Article 6 para. 3 (c) (Art. 6-3-c) envisages the presence of a defence counsel in addition to the accused, but not the representation of an absent client by the defence counsel. Moreover, in criminal proceedings the requirements in respect of the right and the obligation to participate in the trial are more stringent than in civil proceedings. Thus, the Code of Criminal Procedure may, by penalizing his absence, require the accused to be personally present. According to the Government, S. 478 para. 3 of the Austrian Code of Criminal Procedure is an objectively justified measure which is in compliance with the requirements of a fair trial. They argue in particular that the applicant was duly summoned to the trial on 18 May 1993 and was clearly informed of the consequences of his absence. Even assuming that he was not sufficiently familiar with legal German, he could be expected to ask his counsel or, eventually, the latter could be expected to inform him.        The applicant submits that S. 478 para. 3 of the Code of Criminal Procedure prevented his counsel from presenting his defence at the trial on 18 May 1993. Thus, the arguments of the defence unlike the arguments of the prosecution were not heard at all in the criminal proceedings against him. He maintains that it was not clear from the summons that he had to appear personally at the trial. Moreover, the applicant considers that the requirement of his personal presence, in addition to his counsel's presence, is contrary to Article 6 para. 3 (c) (Art. 6-3-c) of the Convention. He concedes that the presence of the accused may be of considerable importance in criminal proceedings. However, the requirement that he be adequately defended is decisive for their fairness. Thus, the fact that he did not appear at the trial on 18 May 1993 cannot justify that he was deprived of his right to be defended by counsel.        After an examination of the complaint in the light of the parties' observations, the Commission considers that it raises questions of fact and law which can only be determined by an examination of the merits. It follows that this complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)