CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 avril 1997

.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. 25878/94                       by Michael Edward COOKE                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 10 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 August 1994 by Micheal Edward COOKE against Austria and registered on 7 December 1994 under file No. 25878/94;        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      1 April 1996 and the observations in reply submitted by the      applicant on 10 July 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1935, is a British national.   When lodging his application, he was detained in a prison at Garsten, Austria.   In the proceedings before the Commission he is represented by Ms. N. Mole, a lawyer practising in London.   A.    Particular circumstances of the case        The facts, as submitted by the parties, may be summarised as follows.        In the early evening of 10 March 1993 the applicant was arrested at Alpbach, Austria, on the suspicion of having killed, shortly before, his friend Ms. W. with whom he had come to Austria for holidays. Subsequently, the Duty Judge ordered the preparation of a psychiatric expert opinion and appointed Prof. P. and further appointed an interpreter for the questioning of the applicant.   At about 11 p.m., the applicant was questioned in presence of a public prosecutor and a duty judge.   He refused to answer any questions unless a lawyer and a diplomatic representative of his country were present.   The applicant was informed that at the pre-trial stage he was not entitled to a defence counsel.        On 11 March 1993 Prof. P. started examining the applicant.   The applicant was questioned by the Investigating Judge on 12 March 1993. On this occasion, the applicant again complained about not having had an opportunity to consult a defence counsel.   At the end of the questioning, the Investigating Judge ordered that preliminary proceedings be instituted against the applicant on the suspicion of murder within the meaning of S. 75 of the Penal Code, and also ordered his detention on remand.   The same day a reconstruction of the events was conducted at the scene of the crime, i.e. a hotel at Alpbach, apparently in the absence of the applicant.        On 12 March 1993 the Austrian press reported on the events of 10 March 1993.        On 20 April 1993 the Innsbruck Regional Court, having heard the applicant and following his repeated request, decided that he be given an English speaking official defence counsel for the whole duration of the proceedings.   On 22 April 1993 the Tyrolian Bar Association (Rechtsanwaltskammer) appointed Mr. P., a lawyer practising in Innsbruck, as the applicant's defence counsel.        On 6, 7 and 19 May 1993 the applicant was further questioned by the Investigating Judge in the presence of the interpreter, but in the absence of his defence counsel.   A further questioning took place on 28 June 1993.   Moreover, on 1 July 1993 Prof. P., having continued the applicant's examination in May 1993, completed his expert opinion.        On 16 August 1993 the Innsbruck Public Prosecutor's Office filed an indictment charging the applicant with murder under S. 75 of the Penal Code (Strafgesetzbuch).   The English translation of the bill of indictment was completed on 30 August 1993.        On 7 September 1993 the Innsbruck Court of Appeal (Oberlandes- gericht) ordered the applicant's continued detention on remand.        In October 1993 the Regional Court dismissed the applicant's request for the preparation of a second expert opinion as regards his criminal responsibility.        On 22 October 1993 the applicant's defence counsel received copies of the English translations of the records on the applicant's questioning.   The English translation of Prof. P.'s expert opinion was completed on 27 October 1993 and subsequently forwarded to the applicant's counsel.   Counsel's request for a translation of the whole file was dismissed, an appeal was to no avail.   The applicant, assisted by an interpreter, consulted the file shortly before the date of the trial, which had been listed for 17 and 18 November 1993.        On 10 November 1993 the Regional Court dismissed the applicant's requests to postpone the trial and to refer the matter back to the Investigating Judge for further investigations.        On 17 November 1993 the applicant's trial commenced before a Court of Assizes (Geschworenengericht) of the Innsbruck Regional Court (Landesgericht), sitting with a jury.   The applicant was assisted by his official defence counsel Mr. P.   An interpreter was present.        At the hearing, the Court heard the applicant's statements, the testimony of several witnesses, inter alia the receptionist and the owner of the hotel concerned, and the explanations of the medical experts Prof. P and Dr. U.   It follows from the trial records that questions were put to the witnesses by the Court, the Public Prosecutor, the applicant's defence counsel and the expert Prof. P. According to the applicant, only the questions to the applicant and two British witnesses as well as their statements were translated, while the statements made by the Austrian witnesses as well as the experts remained untranslated.        Moreover, the applicant's counsel requested the taking of further evidence.   These requests were dismissed for the following reasons. The Court found in particular that the request to take evidence as to Ms. W.'s personality and behaviour in the past related to an irrelevant issue, and that her behaviour towards the applicant could be established on the basis of his own statements.   Furthermore, the defence had failed to show any shortcomings in the psychiatric expert opinion, which would justify the preparation of a second expert opinion as to his criminal responsibility.   The question of the applicant's state of mind following the offence could not be clarified by hearing witnesses but only on the basis of an expert opinion.   As regards the further questions, in particular relating to the applicant's general situation and conduct as well as his relation towards Ms. W., the Court, considering the applicant's own statements sufficient and trustworthy, found a further hearing of witnesses unnecessary.        At the end of the hearing, the Court put five questions to the jury: the first - main - question related to the offence of murder, the following three - subsidiary - questions concerned the offences of unpremeditated homicide, intentionally inflicted grievous bodily harm resulting in death and grievous bodily harm resulting in death, respectively, the fifth - main - question aimed at the applicant's criminal responsibility.   The Court's directions to the jury covered the jury's duties and the general legal notions of intent and negligence.   As regards the questions, the jury was inter alia directed that the offence of murder (Mord) consisted in the intentional killing of a human being and that premeditated homicide (Totschlag) was the intentional killing of a human being in a comprehensible state of emotion (in einer allgemein begreiflichen heftigen Gemütsbewegung).        On 18 November 1993 the jury, by a unanimous verdict, found the applicant guilty of murder.   The jury also unanimously found that the applicant was criminally responsible.   According to the record on their deliberations, the jury relied in particular on the testimony of the hotel owner as well as on the expert opinion of Prof. P.        The Court sentenced the applicant to twenty years' imprisonment. In fixing the sentence, the Court considered as a mitigating circumstance that the applicant's capacity to act had been diminished (verminderte Dispositionsfähigkeit), although his offence had not been committed upon provocation and did not obviously contradict his previous behaviour.   Moreover, he had not made a repentant confession (reumütiges Geständnis), and his statements regarding the offence had not essentially contributed to the establishment of the truth.        The applicant, assisted by his official defence counsel Mr. P., filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof), challenging the order of questions put to the jury, the dismissal of his requests for the taking of further evidence as well as the finding of the jury.   He further lodged an appeal (Berufung) complaining about the length of the sentence, referring to further mitigating circumstances.        The Public Prosecutor's Office (Staatsanwaltschaft) also appealed against the sentence, requesting that a life sentence be imposed.        On 26 January 1994 the Supreme Court issued a summons for the hearing on the plea of nullity and the appeals, indicating that, at the hearing on the plea of nullity, the applicant, being incarcerated, could only appear through his official defence counsel and that at the hearing of the appeals he would not be brought to court as the conditions of S. 296 para. 3 of the Code of Criminal Procedure were not satisfied.        On 3 February 1994 the Vienna Bar Association, upon the request of the senior partner of counsel Mr. P., appointed Mr. S. as the applicant's official defence counsel for the purposes of the proceedings before the Supreme Court.   The applicant received the certificate of appointment on 10 February 1994.   The applicant requested the Supreme Court to be represented by Mr. P. at the hearings and to attend them as an observer.   On 16 February 1994 the Innsbruck Regional Court, upon instruction by the Supreme Court, informed the applicant that the conditions of S. 296 para. 3 of the Code of Criminal Procedure were not satisfied, and that attendance as observer was not possible.        On 17 February 1994 the Supreme Court held the hearing on the plea of nullity and the appeals in the absence of the applicant.   He was represented by his new official defence counsel Mr. S.   The Supreme Court rejected the plea of nullity as well as both appeals.        The Supreme Court, in its judgment, found that the rejection by the trial court of the applicant's requests for the taking of evidence did not impair the rights of the defence.   In particular, the Supreme Court confirmed in detail the reasoning of the trial court that the requests concerned partly irrelevant issues or requested the hearing of witnesses on issues which required expert evidence.   Moreover, the applicant had failed to show the necessity of a second expert opinion as to his criminal responsibility.        The Supreme Court also dismissed the applicant's argument that the order of questions put to the jury, namely as a first - main - question whether he had committed murder and as second - subsidiary - question whether he had committed premeditated homicide, had been incorrect.   In this respect, the Supreme Court considered that the main question had to aim at the charged offence, while the subsidiary questions should provide an opportunity for a different legal qualification.   Murder and premeditated homicide were independent offences which differed regarding the mental elements.        The Supreme Court further found that the findings of the jury could not be objected to.   In particular, the applicant's allegation of a discrepancy in the statements of one of the main witnesses was unfounded and, in any event, expert evidence had been taken on the relevant issue, namely his mental state at the time of the offence.        As regards the appeals, the Supreme Court noted that the applicant's own statements appeared to indicate that he quickly lost his self-control in contacts with women.   Nevertheless, there was no sufficient reason to exclude the mitigating circumstance of a previous reputable conduct of life.   The Supreme Court further, on the basis of the file, considered that there had been no provocation and that there were no indications for an exceptional mental or emotional excitement. Except for the further mitigating circumstance, there was no other reason to amend the evaluation regarding the applicant's character or his mental state at the time of the offence, or his motive.   Taking all circumstances into account, the sentence imposed by the trial court appeared appropriate.        The decision was received at the Innsbruck Regional Court on 3 March 1995 and by the applicant's defence counsel Mr. P. on 10 March 1994.   B.    Relevant domestic law   a.    Official defence counsel        S. 39 of the Code of Criminal Procedure provides that in all criminal cases the accused has the right to have a defence counsel whom he may choose among the persons included in a list kept by the Court of Appeal.   S. 41 provides inter alia that if the person charged with a criminal offence is unable to bear the costs of his defence, the court shall at his request decide that he will be given a defence lawyer whose costs he will not have to bear if and in so far as this is necessary in the interests of justice, in particular the interests of an appropriate defence.   According to S. 42 para. 2, the court, having decided to assign a defence counsel, shall notify the Bar Association competent for the area in which the court is situated so that a practising lawyer can be appointed as defence counsel.   The replacement of a defence counsel in the course of the proceedings can take place upon motion by the accused (S. 44 para. 2 of the Code of Criminal Procedure, S. 45 of the Practising Lawyers Act (Rechtsanwalts- ordnung)), or upon request of the lawyer concerned, inter alia, if the representation requires activities outside the area of the first instance court where he has his office.   b.    Plea of nullity and appeal against sentence        A first-instance court judgment given by a Court of Assizes at a Regional Court can be challenged by a plea of nullity to the Supreme Court on specific grounds enumerated in S. 345 para. 1 of the Code of Criminal Procedure.   The Supreme Court's task is mainly to control the acts of the bench and the presiding judge of the Court of Assizes examining, in particular, whether the trial has been conducted in a manner which complies with fundamental procedural principles, whether the right questions have been put and the right directions given to the jury.   The Supreme Court may only verify whether the jury has provided unclear, incomplete or contradictory answers to the questions put to it.   The Supreme Court supervises the correct application of the criminal law, but in so doing is bound by the jury's findings as to the facts.   In general, the Supreme Court conducts a public hearing on the plea of nullity which may also be combined with a public hearing on appeals against sentence.   As regards hearings on a plea of nullity, S. 286 of the Code of Criminal Procedure, applicable to nullity pleas arising out of trials by jury pursuant to S. 344 of the Code, provides that if the accused is under arrest, the notice of hearing given to him shall mention that he may only appear through counsel.        The sentence as such can be challenged by way of an appeal against sentence.   It may concern both points of law (in particular whether mitigating or aggravating circumstances have been correctly taken into account) and factors relating to the assessment of the sentence.   As regards the personal appearance of the accused at appeal hearings, S. 296 para. 3, second sentence, of the Code of Criminal Procedure provides that an accused who is detained shall be brought before the court if he has made a request to this effect in his appeal or counter-statement or otherwise if his personal presence appears necessary in the interest of justice.   COMPLAINTS        The applicant complains that both the proceedings before the Court of Assizes and the Supreme Court were unfair.   He invokes Article 6 paras. 1, 2 and 3 (a), (b), (c), (d) and (e) of the Convention.   a.    The applicant complains in particular that he was not promptly informed about the nature and cause of the accusations against him. He states that while on 12 March 1993 an interpreter informed him that preliminary proceedings were instituted against him on the charge of murder, the exact nature of this charge was not explained in detail and that his requests for a translation of the relevant legal provisions remained unsuccessful.   b.    He further submits that his absence at the reconstruction on 12 March 1993 was in breach of the principle of equality of arms.   c.    The applicant also complains that, despite his earlier requests, the appointment of an official defence counsel was ordered only on 20 April 1993.   d.    Moreover, he considers that the failure to provide translations of documents promptly impaired the preparation of his defence and his right to the free assistance of an interpreter.   In this respect, he also complains about the lack of a full and continuous interpretation of the trial before the Court of Assizes.   e.    In addition, the applicant considers that the reporting in the Austrian media, in particular reports in the press as well as a short report in the public broadcasting at the evening of the first day of his trial, prejudiced the fairness of the proceedings and the impartiality of the jury.   f.    As regards the taking of evidence by the Court of Assizes, he complains that, at the trial, his requests for the taking of further evidence were dismissed.   He also submits that the Prosecutor's Office, in the bill of indictment, had relied on the statements of two persons which he could not question at the trial.   g.    According to the applicant, the order of questions put to the jury infringed both his right to a fair trial and the presumption of innocence.   h.    As regards the proceedings before the Supreme Court, he complains about the failure to allow his presence at the hearing of his plea of nullity and of the appeals against sentence.   As regards the nullity plea, he points out that the new official defence counsel Mr. S. had been appointed only shortly before the hearing concerned and that there had been no communication between him and counsel before the hearing.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 August 1994 and registered on 7 December 1994.        On 29 November 1995 the Commission decided to communicate to the respondent Government the applicant's complaint that he was not present, and was not effectively defended, at the hearing before the Supreme Court.        The Government's written observations were submitted on 1 April 1996, after an extension of the time-limit.   The applicant submitted observations in reply on 10 July 1996.        The applicant was granted legal aid.   THE LAW   1.    The applicant complains that both the proceedings before the Regional Court and the Supreme Court were unfair.   He invokes Article 6 paras. 1, 2 and 3 (a), (b), (c), (d) and (e) (Art. 6-1, 6-2 , 6-3-a, 6-3-b, 6-3-c, 6-3-d, 6-3-e) of the Convention.        Article 6 (Art. 6), so far as relevant, provides 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.   ...        2.     Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law.        3.     Everyone charged with a criminal offence has the following      minimum rights:              a.     to be informed promptly, in a language which he      understands and in detail, of the nature and cause of the      accusation against him;              b.     to have adequate time and facilities for the      preparation of his defence;              c.     to defend himself in person or through legal      assistance of his own choosing or, if he has not sufficient means      to pay for legal assistance, to be given it free when the      interests of justice so require;              d.     to examine or have examined witnesses against him and      to obtain the attendance and examination of witnesses on his      behalf under the same conditions as witnesses against him;              e.     to have the free assistance of an interpreter if he      cannot understand or speak the language used in court."   2.    The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur. Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, para. 61; Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).   3.    As regards the preliminary stage of the criminal proceedings against him and the trial before the Court of Assizes, the applicant complains in particular that he was not promptly informed about the accusations against him, that he was absent at a reconstruction, that official defence counsel was appointed belatedly, that there was no prompt translation of relevant documents and full interpretation at the trial as well as that the reporting in the Austrian media adversely affected the trial.   He further complains about the taking of evidence and the order of questions put to the jury.        In the circumstances of the present case, the Commission, having regard to all material before it and assuming compliance with Article 26 (Art. 26) of the Convention, finds that the applicant's submissions regarding the preliminary investigations as well as the trial proceedings before the Court of Assizes do not disclose any appearance of a breach of Article 6 (Art. 6).        The Commission, having regard to the case-law on the information to be given to a foreign accused (cf. Eur. Court HR, Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, pp. 36-37, para. 79), notes in particular that when questioned at the early investigation stage the applicant was informed that he was suspected of murder, and refers in particular to the decision of the Investigating Judge of 12 March 1993 to institute preliminary proceedings.   When the applicant was questioned, interpretation took place.   Furthermore, the bill of indictment was translated into English and made available to the applicant apparently end of August or beginning of September 1993, leaving sufficient time for the applicant to acquaint himself with the details of the charge against him. Moreover, since 22 April 1993 the applicant was assisted by an English speaking defence counsel.         The Commission further finds that the applicant failed to show that, assisted by defence counsel, he could not duly challenge any shortcomings or any erroneous conclusions drawn from the reconstruction at the trial.    Moreover, there is nothing to show that the appointment of his defence counsel on 22 April 1993, i.e. about six weeks after his arrest and several months before both the indictment and the trial, rendered the whole of the proceedings unfair.        As regards the interpretation issues, the Commission notes that there was some delay in forwarding to the applicant translations regarding the interviews at the pre-trial stage and that his request for a full translation of the whole file was dismissed.   However, the applicant could also consult the files, assisted by an interpreter, and he was assisted by an English speaking defence counsel.   At the trial, the applicant did not complain about an allegedly insufficient interpretation.   It follows from the trial records that his defence counsel took actively part in the questioning of the witnesses.   In these circumstances there is no indication that the applicant could not effectively exercise his defence rights (cf. Eur. Court HR, Luedicke, Belkacem and Koç v. Germany judgment of 28 November 1978, Series A no. 29, p. 20, para. 48; Kamasinski judgment, op. cit., p. 35, para. 74, and   p. 38, para. 83; and, mutatis mutandis, Stanford v. the United Kingdom judgment of 23 February 1994, Series A no. 282-A, pp. 10-11, paras. 26-31).        As regards the reporting on the applicant's case in the Austrian media, the Commission finds no particular circumstances to conclude that the fairness of the proceedings was adversely affected (cf. No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86).   In this respect, the Commission also notes that, at the trial, the applicant did not challenge the jury as a whole, or individual members, for lack of impartiality.        The Commission considers that the Court of Assizes' taking of evidence does not disclose any appearance of a breach of Article 6 (Art. 6).   In particular, the Court of Assizes, on the basis of the applicant's own statements, did not regard as necessary to hear further witnesses or considered that relevant expert evidence had already been obtained.   As to the order of questions put to the jury, the Commission, taking into account the Supreme Court's reasoning as to the independent nature of the offences "murder" and "premeditated homicide" under Austrian law and the procedural requirement that the first and main question should correspond to the charge against the accused, finds no indication that the applicant's rights under Article 6 (Art. 6) were infringed.        It follows that the applicant's complaints in these respects are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    As regards the proceedings before the Supreme Court, the applicant complains about his absence at the hearings concerning both his plea of nullity and his appeal against sentence and the allegedly belated appointment of counsel for these hearings.   a.    The Government claim that the applicant's complaint that he could not attend the Supreme Court hearing of his appeal should be rejected as inadmissible for non-exhaustion of domestic remedies by virtue of Articles 26 and 27 (Art. 26, 27) of the Convention.   They point out that he failed to request his attendance at the hearing of his appeal in accordance with S. 296 para. 2 of the Austrian Code of Criminal Procedure.        Under Article 26 (Art. 26) of the Convention, the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.   Normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged.   Article 26 (Art. 26) also requires that any procedural means that might prevent a breach of the Convention should have been used (cf. Eur. Court HR, Akdivar v. Turkey judgment of 16 September 1996, para. 66, to be published in the Reports of Judgments and Decisions for 1996).   In this context, it has been recognised that Article 26 (Art. 26) must be applied with some degree of flexibility and without excessive formalism; it is essential to have regard to the particular circumstances of each individual case (cf. Akdivar judgment, op. cit., para. 69).        In the present case, the Commission considers that the question whether the applicant ought to have requested leave to attend the hearing of his appeal is so closely related to the merits of the applicant's complaint under Article 6 (Art. 6) that it cannot be separated.   b.    The Government submit that the hearings before the Supreme Court did not involve any question which would have necessitated the applicant's personal attendance.        The applicant objects to the Government's views.   He submits inter alia that defence counsel for these hearings was appointed shortly before.   Moreover, the Public Prosecutor's Office, in its appeal, had requested an increase of his sentence to life imprisonment, whereas he had applied for a reduction of his sentence.        The Commission considers, in the light of the parties' submissions, that this part of the application raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.   The Commission concludes, therefore, that the applicant's complaint that he could not attend the Supreme Court hearings is not manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.      For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits of the case,      the applicant's complaint that he was not present at the hearings      before the Supreme Court;        DECLARES INADMISSIBLE the remainder of the application.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber