CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 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. 32054/96                       by Ahmet SAGIR                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 2 July 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 12 June 1996 by Ahmet SAGIR against Austria and registered on 27 June 1996 under file No. 32054/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1964, is a Turkish citizen residing in Hohenems.   He is presently detained in a prison.   Before the Commission the applicant is represented by Mr. W.L. Weh, a lawyer practising in Bregenz.        The facts as submitted by the applicant may be summarised as follows.   A.    Particular circumstances of the case        On 19 April 1995 a bench of the Feldkirch Regional Court (Landesgericht), sitting with two professional judges and two lay judges found the applicant guilty of having twice attempted to sell 750 grammes of heroin, and of having falsely pretended that he had been ill-treated by two police officers while in police custody.   It convicted the applicant of an offence under the Narcotic Drugs Act (Suchtgiftgesetz) and of defamation and sentenced him to three and a half years' imprisonment.        The Regional Court found it established that the applicant had attempted to sell heroin in a quantity considered as large under the Narcotic Drugs Act to S. and to M.G., who - in the same proceedings - was convicted of several drug offences.   In its assessment of evidence the court relied, in particular, on the confession of the co-accused Y.Y., who had acted as a middleman between the applicant and the prospective buyers.   The court did not accept the applicant's defence according to which the subject of the deal had been weapons and not drugs, but considered this account as being in contradiction with, inter alia, the extensive telephone recordings made by the police.   The Regional Court further considered that on 21 June 1994 the applicant had made a confession before the police and that on 22 June 1994 he had given further details of the heroin deal.   The Regional Court noted that before the investigating judge the applicant had denied any involvement in heroin trafficking, but - when confronted with his statements before the police - could not give any explanation for the discrepancies in his accounts.   Only after the formal questioning had he told the investigating judge that he had been ill-treated by the police officers when making his first confession.   Relying on the evidence given by the investigating judge and two police officers, the Regional Court found that the applicant's account of his alleged ill- treatment was inconsistent and contradictory.        As to the charge of defamation the Regional Court - referring to the testimonies of the police officers and the investigating judge - found that the applicant had wrongly and knowingly accused the two police officers of abuse of authority (Amtsmißbrauch) and had exposed them to the risk of prosecution by the authorities by making the following statement:        "I made the statements of 21 June and 22 June 1994, because I was      hit and ill-treated in such a manner that I had to give up and      said, write whatever you like. ... then two policemen came and      gave me a punch and called me a "pig".   I told them that I had      not done this, whereupon they gave me further punches.   This      happened while I was being questioned.   As a consequence of these      punches my gums were bleeding."        In fixing the applicant's sentence the Regional Court considered as aggravating factors the concurrence of an offence under the Narcotic Drugs Act and the offence of defamation; the repeated violation of the Narcotic Drugs Act; the high quantity of drugs concerned; a previous conviction for having negligently caused bodily harm; the fact that two civil servants had been defamed and that the applicant had acted for the purpose of gain.   It considered as mitigating that the applicant had only attempted to commit offences under the Narcotic Drugs Act and that he had partly made - though later withdrawn - a confession.        On 31 July 1995 the applicant represented by legal aid defence counsel filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung).   Under the heading "nullity" (Nichtigkeit) he submitted as a ground of nullity, inter alia, that the court's reasoning regarding the possession and the quantity of heroin was contradictory, insufficient, unclear and not corroborated by the files.   Under the heading "appeal against the finding of guilt" (Berufung wegen des Ausspruches über die Schuld) he submitted that the Regional Court had incorrectly assessed the evidence and wrongly stated the facts, in particular, as concerns the possession and the quantity of heroin.   As regards his conviction of defamation he submitted that he had made this statement in the exercise of his defence rights and that it was improbable that the police officers would have been prosecuted.   Under the heading "appeal against the fixing of the sentence" (Berufung wegen des Ausspruchs über die Strafe) he argued that the Regional Court had wrongly assessed the aggravating circumstances and had not duly taken into account further mitigating circumstances.        On 12 December 1995 the Supreme Court, in a judgment of 30 pages, dismissed the applicant's plea of nullity and appeal as regards the sentence.   It rejected as inadmissible the applicant's appeal from guilt on the ground that no such remedy laid against judgment of a court sitting with a bench.   B.    Relevant domestic law        The Austrian Code of Criminal Procedure provides in case of conviction or acquittal for a review of a judgment by one higher instance.   In case of conviction by the bench of a Regional Court (normally composed of two professional judges and two lay judges) or a Court of Assizes (Geschworenengericht) a convicted person may file a plea of nullity (Nichtigkeitsbeschwerde) to have the lawfulness of the trial and the criminal proceedings reviewed and an appeal (Berufung) to have the sentence reviewed (SS. 280, 281 and 283).   A review of the assessment of evidence (Beweiswürdigung) is not provided for in such proceedings.   A plea of nullity is decided upon by the Supreme Court, an appeal by the Court of Appeal unless the Supreme Court decides to deal at the same time with a plea of nullity and an appeal (SS. 280, 296).        In case of conviction by a District Court or by a Regional Court sitting with a single judge (Einzelrichter) the remedy against the conviction is an appeal to the Regional Court or the Court of Appeal respectively (SS. 463, 489).   The Code of Criminal Procedure distinguishes between an appeal for nullity (Nichtigkeitsberufung) in order to have - as in proceedings on a plea of nullity - the lawfulness of the trial and the criminal proceedings reviewed, an appeal on the question of guilt (Schuldberufung) to have the assessment of evidence reviewed and an appeal against the sentence (Strafberufung) to have the sentence reviewed (S. 464).     COMPLAINTS        The applicant complains under Article 6 of the Convention that his conviction for defamation constituted a violation of his rights of defence as guaranteed under Article 6 para. 3 (c) of the Convention. He submits that even if his allegations remained unproven, his conviction for defamation amounted to a violation of his defence rights as he had made this statement in order to present his personal view of the events during his questioning by the police.        The applicant complains under Article 6 para. 3 (c) that the Supreme Court had failed to duly advise the applicant's legal aid defence counsel on the reasons to be advanced in a plea of nullity. The applicant claims that due to this failure the legal aid defence counsel filed an appeal on the question of guilt which was rejected as formally inadmissible.        The applicant complains that the Regional Court did not respect the principle of ne bis in idem as guaranteed under Article 4 of Protocol No. 7.   He submits that in fixing the applicant's sentence the Regional Court took several aggravating circumstances into account which were a constitutive element of the drug offence itself.   THE LAW   1.    The applicant complains in various respects about the alleged unfairness of the criminal proceedings conducted against him.   He relies on Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.        As the requirements of paragraph 3 of Article 6 (Art. 6-3) are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Commission will examine these submissions of the applicant from the angle of paragraph 1 taken together with the principles inherent in paragraph 3 of Article 6 (Art. 6-3) (Eur. Court HR, Unterpertinger v. Austria judgment of 24 November 1985, Series A no. 110, p. 14, para. 29; Daud v. Portugal judgment of 21 April 1998, para. 33, to be published in Reports 1998).        Article 6 (Art. 6) of the Convention, insofar as relevant, read as follows:        "1.    In the determination ... of any criminal charge against      him, everyone is entitled to a fair ... hearing ...        ...        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 applicant submits that his conviction for defamation violated his defence rights guaranteed by Article 6 para. 3 (c) (Art. 6-3-c) of the Convention as he had made this statement in order to present his personal view of the events during his questioning by the police.          The Commission recalls that it would be overstraining the concept of the right of defence of those charged with a criminal offence if it were to be assumed that they could not be prosecuted, when in exercising that right, they intentionally arouse false suspicions of punishable behaviour concerning a witness or any other person involved in the criminal proceedings (Eur. Court HR, Brandstetter v. Austria judgment of 28 August 1991, Series A no. 211, p. 23, para. 52).        The Commission notes that the applicant was convicted by the Regional Court of having wrongly stated during the criminal proceedings conducted against him for drug trafficking that he had been ill-treated while in police custody.        Having regard to these circumstances the Commission finds no reason to depart from the Court's case-law.   Accordingly, there is no appearance of a violation of the applicant's defence rights in this respect.   b.    The applicant submits further that he was not granted effective legal assistance within the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention as the Supreme Court had failed to duly advise the applicant's legal aid defence counsel on the reasons to be advanced in a plea of nullity.   Due to this failure the legal aid defence counsel filed an appeal on the question guilt which was rejected as formally inadmissible.        The Commission recalls that   "a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes" (Eur. Court HR, Artico v. Italy judgment of 13 May 1980, p. 18, para. 36).   Article 6 para. 3 (c) (Art. 6-3-c) only requires that the competent national authorities intervene, if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (Kamasinski v. Austria judgment of 19 December 1989, p. 33, para. 65).        The Commission notes that the applicant, represented by a legal aid defence counsel, filed a plea of nullity and an appeal in which, in a separate section, he does set out an "appeal on the question of guilt". In his writ the applicant's defence counsel set out various grounds for having the conviction quashed or the sentence reduced.   In its detailed judgment of 12 December 1995 the Supreme Court dismissed the applicant's plea of nullity and his appeal (against the sentence) after having examined the arguments put forward by the applicant's lawyer.   Only the "appeal on the question of guilt" was rejected as inadmissible as in the proceedings at issue this specific remedy could not be used (see above "Relevant domestic law").        The Commission cannot find that the mere fact the applicant's defence counsel had in addition to the correct remedies against the Regional Court's judgment of 19 April 1994, namely plea of nullity and appeal, also used an inappropriate remedy in the proceedings at issue should have prompted the Supreme Court to find that there was a manifest failure by legal aid defence counsel to provide effective representation (see Eur. Court HR, Daud v. Portugal judgment, op. cit., para. 38).   The applicant has not alleged any further shortcoming in his defence.        Accordingly there is no appearance of a violation of the applicant's defence rights in this respect.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    Lastly the applicant complains that the Regional Court did not respect the principle of ne bis in idem as guaranteed under Article 4 of Protocol No. 7 (P7-4).   He submits that in fixing the applicant's sentence the Regional Court took several aggravating circumstances into account which were a constitutive element of the drug offence itself, such as the amount of the heroin attempted to be sold and that he had acted for gain.        Article 4 para. 1 Protocol No. 7 (P7-4-1) reads as follows:        "1.    No one shall be liable to be tried or punished again in      criminal proceedings under the jurisdiction of the same State for      an offence for which he has already been finally acquitted or      convicted in accordance with the law and penal procedure of that      State."        The Commission observes that the applicant has not raised this issue in his plea of nullity.   In this respect the Commission recalls that in order to have exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention, an applicant must have expressly raised before the national authorities the complaint brought before the Commission (No. 11425/85, Dec. 5.10.87, D.R. 53, p. 76). However, the Commission need not determine whether or not the applicant has exhausted domestic remedies because this complaint is, in any event, inadmissible for the following reasons.        The Commission recalls that the principle of ne bis in idem is intended to apply where a person has already been finally convicted or acquitted of an offence and is tried or punished again in respect of the same facts.   The aim of Article 4 Protocol No. 7 (Art. (P7-4) is to prohibit the repetition of criminal proceedings that have been concluded by a final decision.   That provision does not therefore apply before new proceedings have been opened (Eur. Court HR, Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C, p. 65, para. 53).        In the present case the applicant did not submit that he had already been finally convicted of the same offence.   His complaint relates rather to the fixing of the sentence within the same proceedings.   Accordingly, Article 4 of Protocol No. 7 (P7-4) does not apply.        It follows that this part of the application is incompatible ratione materiae with the provision of the Convention invoked by the applicant and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber