CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.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. 28501/95                       by Dimiter POBORNIKOFF                       against Austria        The European Commission of Human Rights sitting in private on 14 January 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     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 21 July 1994 by Mr Dimiter POBORNIKOFF against Austria and registered on 5 September 1995 under file No. 28501/95;        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      13 May 1997 and the observations in reply submitted by the      applicant on 27 August 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1921, is a German national. He is detained at the Stein prison in Austria. In the proceedings before the Commission he is represented by Mr. H. Baumgärtl, a lawyer practising in Munich.   A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 8 March 1993 the Public Prosecutor's Office at the Feldkirch Regional Court filed an indictment charging the applicant with murder. It was alleged that the applicant, in December 1992, had killed his wife and had then buried her corpse, of which the head had been cut off, in a field where it had been discovered in May 1992. It was further alleged that he had had a mistress, and had run into financial difficulties as he had rented and furnished an apartment for her and had maintained her, whereas his   wife, who had opposed a divorce, had owned the spouses' house and a collection of jewellery of considerable value. In these and the trial proceedings the applicant was represented by official counsel, Mr. A.        On 1 October 1993 the Feldkirch Regional Court, sitting as a Court of Assizes (Geschwornengericht), gave judgment. The jury found the applicant guilty of murder. The court, sitting with the jury, sentenced him to life imprisonment. It considered as aggravating circumstances that the applicant had acted for particularly base motives and had acted cruelly. It found that there were no mitigating circumstances.        On 2 November 1993 the applicant, still represented by Mr. A., filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). In his plea of nullity he complained about the composition of the court, the court's failure to put alternative questions to the jury and about the lack of reasons for the jury's verdict. He also submitted that there was no factual basis for finding him guilty. In his appeal he complained in particular that the Regional Court's judgment did not give sufficient reasons for its determination of the sentence. As to the aggravating circumstances, it was not clear which motives had been found to be established and had been evaluated as being particularly base. Nor did the judgment mention any facts which would allow the conclusion that he had acted in a cruel manner. As to possible mitigating circumstances, the applicant complained that the Regional Court had failed to take his advanced age and the fact that he had no prior convictions into account. The applicant did not request to attend the hearing before the Supreme Court.        On 21 December 1993 the Supreme Court (Oberster Gerichtshof) fixed the hearing date for the applicant's plea of nullity and his appeal for 27 January 1994. The applicant received a notification, which stated that his counsel would be summoned to the hearing. As to the hearing of the plea of nullity, the notification informed him that he, being detained, could only appear through his counsel. As to the hearing of the appeal, he would not be brought to the court as the conditions of S. 296 para. 3 of the Code of Criminal Procedure (Strafprozeßordung) were not fulfilled.        On 27 January 1994 the Supreme Court after having held a hearing in absence of the applicant but in presence of his new official defence counsel, Mr. K., rejected his plea of nullity as well as his appeal. As regards the appeal, the Court found that the applicant had rightly claimed as a mitigating circumstance that he had no prior convictions. Further, given that the manner in which the applicant had killed his wife had remained unclear, there was no factual basis for finding that the applicant had acted cruelly and for applying the corresponding aggravating circumstance. However, the outcome of the proceedings supported the conclusion that the applicant had acted for particularly base motives. Attaching particular weight to this aggravating circumstance, the Supreme Court found that - notwithstanding the above corrections concerning the basis for determining the sentence - the sentence of life imprisonment was commensurate with the applicant's guilt.   B.    Relevant domestic law        A first instance 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 (Strafprozeßordnung). 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 be combined with a 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 jury trials 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 provides that the Supreme Court, when deciding upon an appeal at the public hearing on the plea of nullity, always has to summon an accused who is not detained. An accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter-statement or if his personal presence appears necessary in the interest of justice.     COMPLAINTS        The applicant complains that the Supreme Court held the hearing on his plea of nullity and his appeal in his absence. He invokes Article 6 paras. 1 and 3 (c), (d) and (e) of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 21 July 1994 and registered on 5 September 1995.        On 27 February 1997 the Commission decided to communicate the application.        The Government's written observations were submitted on 13 May 1997. The applicant replied on 27 August 1997 after an extension of the time-limit set for this purpose.   THE LAW        The applicant complains that the Supreme Court held the hearing on his plea of nullity and his appeal in his absence. He invokes Article 6 paras. 1 and 3 (c), (d) and (e) (Art. 6-1, 6-3-c, 6-3-d, 6-3-e) of the Convention.        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 and public 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 or, if he has not sufficient means      to pay for legal assistance, to be given it free when the      interests of justice so require;"   a.    The Government submit that the applicant failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention, as he did not request his attendance at the hearing before the Supreme Court in accordance with S. 296 para. 3 of the Austrian Code of Criminal Procedure. Further, as regards compliance with the six months time-limit laid down in Article 26 (Art. 26), the Government voice doubts as to whether the applicant has sufficiently raised the complaint at issue in his first communication to the Commission, dated 21 July 1994.        The applicant submits that his official defence counsel, despite the fact that he repeatedly expressed his wish to be heard personally by the Supreme Court, did not inform him of the possibility to make a request to this effect.   The applicant contests the Government's view as regards compliance with the six months time-limit.        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, and within a period of six months from the date on which the final decision was taken.        The Commission recalls that in order to exhaust domestic remedies an applicant should have recourse 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 (Eur. Court HR, Akdivar v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, No. 15, p. 1210, para. 66). 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 (Akdivar judgment, loc. cit., p. 1211, 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 his complaint that it cannot be dealt with separately.        As regards compliance with the six months rule, the Commission notes that the Supreme Court gave judgment on 27 January 1994. The applicant, in his letter of 21 July 1994, complained that the evidence adduced against him did not suffice to carry a finding of guilt but also claimed that the proceedings were unfair in that the Supreme Court rejected his plea of nullity and his appeal in his absence. In these circumstances, the Commission finds that the applicant has complied with the six months time-limit under Article 26 (Art. 26) of the Convention.   b.    As to Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention, the Government submit that these provisions do not require the applicant's presence at the hearing of his plea of nullity as the Supreme Court is bound by the Assize Court's findings on the facts and only has to determine questions of law. Further, the Government argue that the hearing of the applicant's appeal did not involve any question which would have necessitated that his personal attendance be ordered ex officio.        The applicant contests the Government's view. As to the hearing of his plea of nullity he submits in particular that his official defence counsel was replaced by another official defence counsel shortly before the hearing. He claims that the latter failed to contact him and that he was, therefore, not duly represented before the Supreme Court. As to the hearing of his appeal he submits that the Supreme Court, in accordance with S. 296 para. 3 of the Code of Criminal Procedure, would have been required to summon him in the interest of justice as the proceedings involved an evaluation of his personality and character.        The Commission considers, in the light of the parties' submissions, that the case 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 application 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 THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.     M.F. BUQUICCHIO                               M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber