CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 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                         Application No. 20713/92                       by J. K.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  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 12 May 1992 by J. K. against Austria and registered on 29 September 1992 under file No. 20713/92;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the Commission's decision of 7 April 1994 to declare the application partly inadmissible and to communicate and adjourn the remaining complaint pending the Court's judgment in the case of Bulut v. Austria;        Having regard to the judgment of the Court in the case of Bulut v. Austria (Eur. Court. H.R., Bulut judgment of 22 February 1996, Reports 1996).        Having regard to the Government's letter of 9 May 1996 and the applicant's letter of 9 May 1996.        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1943.   He has formerly been a police officer.   Before the Commission he was initially represented by Mr. M. Tuschl, residing in Vienna, and is now represented by Mr. R. Danner, residing in Krems.        The facts of the case as submitted by the parties may be summarised as follows.   A.    Particular circumstances of the case        On 8 January 1990 the applicant was taken into detention on remand.   He was suspected of having taken heroin from a police deposit of confiscated drugs and sold it.        On 16 February 1990 the applicant was released, but from 5 March to 16 March 1990 and from 13 April to 16 April 1990 he was again taken into detention on remand.        On 26 September 1990 the Vienna Regional Court (Landesgericht), presided by Judge K., convicted the applicant of abuse of authority, handling of drugs and false testimony and sentenced him to 3 years imprisonment.   The Regional Court found that the applicant, who investigated drug cases had on 15 August 1989 taken heroin from a deposit of seized drugs and handed it over to V.J., a drug dealer known to him, who sold the heroin.   Notwithstanding the secret message from Q.H. found in the course of the search of the applicant's office the applicant had denied in his capacity as a witness at the trial of Q.H., that he had received such a message        On 31 January 1991 the Supreme Court partly upheld the applicant's plea of nullity and quashed the Regional Court's judgment insofar as it concerned the conviction of abuse of authority and handling of drugs because the Regional Court had not heard H.H. as a witness as requested by the defence.        Proceedings were resumed before the Regional Court, presided over by Judge St.   On 14 June 1991 the applicant was convicted again of abuse of authority and handling of drugs and sentenced to 3 years imprisonment.   This time H.H. was heard as a witness at the trial.        On 8 October 1991 the applicant lodged a plea of nullity and an appeal.   In his plea of nullity, relying on Section 281 paras. 5 and 5a of the Code of Criminal Procedure (Strafprozeßordnung), he complained about the Regional Court's assessment of evidence.   In particular, he raised doubts as to the credibility of V.J., the main witness for the prosecution, and complained that, contrary to what the Regional Court had stated, this witness had given different versions of the events in the course of the proceedings.        On 23 January 1992 the Supreme Court dismissed the applicant's plea of nullity under Section 285d para. 1 sub-para. 1 and 2 of the Code of Criminal Procedure without an oral hearing.   The Supreme Court held that the assessment of evidence could only be attacked if the conclusions drawn by a court were illogical.   It was not the Supreme Court's task to verify the material correctness of the Regional Court's findings.   As regards the alleged discrepancies in the successive statements of the witness V.J., the Supreme Court found that the Regional Court had correctly assumed that they only concerned side issues but not the essential facts of the case.   In any event, the applicant's allegations did not find any support in the file.        On 17 March 1992 the Vienna Court of Appeal, after an oral hearing, dismissed the applicant's appeal.   B.    Relevant domestic law        Section 281 para. 1 of the Code of Criminal Procedure (Straf- prozeßordnung) provides for the specific grounds on which a plea of nullity may be made.   These include:        "5.   if the judgment of the trial court in respect of decisive      facts is unclear, incomplete or self-contradictory ...        5a. if substantial doubts on the correctness of the decisive      facts on which the decision on the guilt is based arise from the      file."        Section 285a para 2 of the Code of Criminal Procedure provides:        "The court of first instance at which a plea of nullity against      the final judgment has been lodged has to reject this plea:        2. if at the giving of notice of the plea of nullity or its      presentation one of the grounds for nullity as mentioned in      Section 281 para. 1 (1 to 11) has not been indicated clearly, in      particular if the circumstances to which the ground of nullity      relates are not referred to expressly or at least by a clear      indication."        Section 285d para. 1 of the Code of Criminal Procedure provides:        "During the private deliberations, an appeal on grounds of      nullity may be rejected immediately:        1.   if it ought to have been rejected by the court at first      instance under Section 285 (a) ...,        2.   if it is based on the grounds of nullity enumerated in      Section 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."   COMPLAINT        The applicant's remaining complaint under Article 6 para. 1 of the Convention concerns the lack of an oral hearing before the Supreme Court on his plea of nullity.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 May 1992 and registered on 29 September 1992.        On 7 April 1994 the Commission decided to communicate the applicant's complaint regarding the lack of an oral hearing in the proceedings on his plea of nullity before the Supreme Court to the respondent Government and declared inadmissible the remainder of the application.   At this stage the Commission did not request the parties to comment on the admissibility and merits of the remaining complaint as it decided to await the outcome of the case of Bulut v. Austria then pending before the European Court of Human Rights.        On 22 February 1996 the European Court of Human Rights gave its judgment in the case of Bulut v. Austria (Eur. Court. H.R., Bulut judgment of 22 February 1996, Reports 1996).        On 17 April 1996 the Commission invited the parties to submit the comments they wished to make in the light the above judgment of the European Court of Human Rights.        On 9 May 1996 the Government informed the Commission that it did not intend to make any submission.   On the same day the applicant informed the Commission that he wished to pursue his application.   THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Supreme Court did not hold a hearing on his plea of nullity.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:        "1.    In the determination ... of any criminal charge against      him, everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by law."        The Commission recalls that the manner of application of Article 6 (Art. 6) to proceedings before appellate courts depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (Eur. Court H.R., Kerojärvi judgment of 19 July 1995, Series A no. 322, p. 15, para 40   with further references). Provided that there has been a public hearing at first instance, the absence of "public hearing" at second instance may be justified by the special features of the proceedings at issue.   Thus proceedings for leave to appeal or proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 (Art. 6) even where the appellant was not given an opportunity of being heard in person by the appeal or cassation court (Eur. Court H.R., Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 22, para. 58).         In the present case the applicant had a public hearing at first instance.   On 23 January 1992 the Supreme Court rejected the applicant's plea of nullity in which he had relied essentially on Sections   281 paras. 5 and 5a of the Code of Criminal Procedure.   The Supreme Court based its decision on Section 285d para. 1 sub-para. 1 and 2 of the Code of Criminal Procedure.        In the case of Bulut v. Austria, which also concerned the rejection of a plea of nullity by the Supreme Court in proceedings under Section 285d para. 1 sub-para. 1 and 2 of the Code of Criminal Procedure, the European Court of Human Rights has found as follows:        "In the instant case, the Court notes that a public hearing was      held at first instance.   It further notes that the Supreme Court      rejected Mr. Bulut's appeal pursuant to Article 285d para. 1 of      the Code of Criminal Procedure ... Under this provision the      Supreme Court, in summary proceedings, may refuse further      consideration of an appeal which it unanimously regards as      manifestly lacking any merit.   The nature of the review can      therefore be compared to that of proceedings for leave to appeal.      Moreover, the Court is not satisfied that the grounds of nullity      under Article 281 para. 1 (4) and (5) if the Code of Criminal      Procedure, as formulated by the applicant ..., raised questions      of fact bearing on the assessment of the applicant's guilt or      innocence that would have necessitated a hearing.   They      essentially challenged the trial court's assessment of the      available evidence, a challenge which the Supreme Court      considered inadmissible" (Eur. Court H.R., Bulut judgment of      22 February 1996, para. 42, Reports of Judgments and decisions      for 1996).        The Commission finds that the above Court's reasoning also applies to the present case.   Therefore, there is no appearance of a violation of the applicant's rights under Article 6 para. 1 (Art. 6-1) of the Convention because of the lack of a hearing before the Supreme Court.        It follows that the applicant's remaining complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES INADMISSIBLE the remaining complaint about the lack of      a hearing before the Supreme Court in the proceedings on the      applicant's plea of nullity.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)