European Court of Human Rights

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to Austria’s declaration recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision from the Court as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 13 and 14 (art. 6, art. 13, art. 14) of the Convention.

(a) that it could take no action in regard to the applicant’s challenge of the member of the Commission appointed as Delegate (Rule 29 § 1);

(b) that it was not necessary for its consideration of the case to hear certain witnesses proposed by the applicant (Rule 40);

(c) to reject the applicant’s objection to the rendering public of his memorial prior to final judgment in his case (Rules 18 and 55).

(a) at the applicant’s request, invited the Commission to produce various documents to the Court;

(b) refused the applicant leave to present his own case at the oral hearing (Rule 30 § 1).

Such of the requested documents as were in the Commission’s file were lodged at the registry on 7 June 1989, together with other material judged by the Commission to be of interest to the Court. On 8 June the President gave leave to the applicant to be represented at the oral proceedings by the American lawyer who had been assisting him.

There appeared before the Court:

- for the Government

       Mr H. Türk, Legal Adviser,

                            ²Ministry of Foreign Affairs,                                       Agent,

       Mr W. Okresek, Federal Chancellery,

       Mrs I. Gartner, Federal Ministry of Justice,                           Counsel;

- for the Commission

       Mr F. Ermacora,                                                                    Delegate;

- for the applicant

       Mr A. D’Amato, Professor of Law,

                            Northwestern University, Chicago,                         Counsel,

       Mrs R. Gorbach, Rechtsanwältin,

                            Vienna,                                                                     Adviser.

The Court heard addresses by Mr Türk, Mr Okresek and Mrs Gartner for the Government, by Mr Ermacora for the Commission and by Mr D’Amato for the applicant, as well as their replies to questions put by the Court and two judges.

At the beginning of the hearing the Court granted a request made by the counsel for the applicant to hear a short address from him in camera (Rule 18).

AS TO THE FACTS

I.   PARTICULAR CIRCUMSTANCES OF THE CASE

A. Pre-trial investigations

The minutes of this session record that the defendant was given notice of the indictment, that he asked for it also to be served upon his defence counsel, and that he entered an objection (Einspruch) to it. His grounds for the objection included the following. He had already written nine letters presenting the evidence sought. Despite his repeated requests he had never received any of the telephone invoices he was accused of not having paid. He had also demanded to be confronted with incriminatory evidence but had never obtained this evidence for review. With the assistance of the judge he formulated a general objection that the indictment was defective and accordingly requested its review. According to a note appended to the minutes, Mr Kamasinski refused to confirm by his signature that he had been given notice of the indictment for the reason that he did not as a matter of principle sign documents drafted in German.

Neither on this occasion, nor later, was Mr Kamasinski provided with a written translation of the indictment.

"As you know I received the indictment today. Perhaps you would be kind enough to explain to me why you arranged to be telephoned instead of being present to give me advice? How in [deleted expletive] name can you advise me before ever seeing that which you are to advise about? The young doctor ?? told me I had to make up my mind instantly concerning whether or not to appeal. He typed something out and when I made a correction by inking out an obvious mistake, the ?? went [deleted expletives]. ‘You cannot alter what I write for you to sign, it is forbidden’. I told him to do the then appropriate thing with the paper and he ordered the interpreter ... to sign it.

 ... I wish you to give me legal advice concerning the indictment:

1. Are there grounds for appeal?

2. What are the grounds available to appeal against an indictment?

3. Can I call witnesses on my behalf and compel them to attend the trial?

4. Will you assist me in a legal manner?

It certainly appears as though you believe the decision on my guilt is pre-ordained otherwise you would not advise others that I will be found guilty without ever seeing the evidence, discussing it with me or ever seeing the indictment. Of course, you have advised me I would be freed on the same basis ..."

Dr Steidl paid further pre-trial visits to the applicant on 16 March, 27 March and 1 April. The applicant was absent from his cell for one hour, thirty minutes and twenty minutes respectively.

"... I shall be writing Dr Braunias [the judge presiding over the Chamber of the Regional Court competent to hear the case] asking him to please help me to obtain EFFECTIVE legal counsel, in the event I do not see the evidence and file prior to 19 March, which is only two weeks before the trial! ..."

The applicant wrote another letter on 16 March instructing Dr Steidl to ensure the attendance at the trial of all witnesses against him and to summons two defence witnesses to appear.

The same day Dr Steidl filed a written motion for the hearing of five witnesses, including Mrs Rebecca Wellington, together with a motion for some of them to be enjoined to bring certain documents. He later filed additions to this evidentiary motion by telephone. In particular, he asked on 31 March for Mrs Theresia Hackl to be summonsed to testify at the trial.

In his letter of 16 March the applicant asked for trial in camera because of fears concerning his personal security. The contents of this letter were also explained over the telephone to the presiding judge by the prison legal officer, Dr P. In view of these fears a detective officer in plain clothes was eventually asked to attend the trial.

The applicant’s letters of 19, 23 (or 24) and 30 March to the presiding judge, which were carried by hand from the Regional Court Prison to the Regional Court in the usual way, are now missing from the court file, and not indexed there. The Government are unable to give an explanation therefor.

The contents of these letters were a source of dispute. The applicant asserted that their essentials were as summarised in subsequent letters he addressed to the presiding judge after the trial (see paragraph 23 below). According to the Government, on the other hand, as far as the presiding judge remembers the missing letters contained repetitions of matters already on the file. The presiding judge, so the Government stated, asked the applicant’s counsel to read the letters and to discuss their contents with his client; the judge invited counsel to raise the arguments made in the letters at the trial and to introduce motions accordingly.

"Dr P.,

May I have an answer to my last note?? There is only 5 working days until the trial which is scheduled on the 2nd of April. I have not had an answer to any requests sent [to] Dr Braunias. Does he ignore me because I write only in English? Does he also ignore the Austrian law in the same way as the U-richter [investigating judge]? I have not yet seen the evidence irrespective of the fact I have an assigned lawyer. Having a lawyer that does nothing does not satisfy justice.

You people must be crazy to think you can carry on a system of justice in such an oppressive manner.

What do I have to do after six months to get the consideration I deserve? Must I hurt myself? Certainly you understand what is going on and you can easily telephone Dr Braunias and inquire.

I will not write you or Dr Braunias again. If I do not have a satisfactory reply in accord with Austrian law and the European Human Rights Convention, Article 6 (art. 6) by the end of the day of March 26, Thursday, I shall take drastic steps! I have had enough of this charade."

In one, dated 4 May 1981, he said:

"Please note that on the 19th of March last, I wrote you requesting access to the records and informing you that Dr Steidl had not yet prepared me nor studied the records of the Court. I requested you to discharge Dr Steidl if his assignment was the basis to refuse me access to the records. On the 30th of March, I wrote you again to inform you that Dr Steidl had not prepared me for the trial nor provided or translated all the relevant witness statements. You ignored both letters and further did not answer a letter requesting permission to present certain documents in English. I realise surely that it was the duty for Dr Steidl to take up these matters with you but he refused to do anything."

In a subsequent letter dated 18 May he summarised the contents of his letters of 16, 19 and 30 March and complained about not having received any response. This letter, together with a German translation prepared by the prison legal officer, was forwarded to the presiding judge on 26 May. There, the applicant stated the "important elements" of his previous letters as follows:

"...

2. On the 19th of March, I wrote you a letter to request an inspection of the court records (Akteneinsicht) and informed you therein that I had little knowledge of any of the alleged evidence, documentary or testimonial. I specifically asked you to discharge Dr Steidl if his representation of me was to be a basis of denying me direct access to the evidence. I stated that it was more important for me to know of the basis of the allegations (so as to prepare a defence) than to be represented by a lawyer. I presume that you did not give me access to the evidence requested nor did you discharge Dr Steidl because you did not understand my letter. (To this date, I do not have knowledge of the majority of the evidence).

3. On the 19th of March I also requested permission to present documentary evidence in English, which request I presume was never answered because it was not understood.

4. On the 30th of March I wrote to inform you that my appointed lawyer, Dr Steidl, had still not prepared me for the trial on the 2nd of April nor given me access [to] or knowledge of the prosecution evidence. (The situation remained the same as reported in my letter of the 19th of March except that at 4:15 in the afternoon of April 1st, Dr Steidl came to inform me that no further preparation was necessary since ‘nothing’ would happen to me on April 2nd).

 ..."

B. The trial

It is the applicant’s contention, as corroborated by the United States consular observers, that the indictment read out at the beginning of the trial was not interpreted into English. However, according to the consular observers, the applicant, when asked, said that he understood the charges and he and his counsel waived interpretation of the indictment.

After the indictment was read out, Mr Kamasinski was invited to make a statement and was questioned by the presiding judge pursuant to section 245 of the Code of Criminal Procedure (Strafprozessordnung) (see paragraph 49 below). The record shows that he stated, among other things, that he was not guilty of any criminal charge.

In his concluding address to the court Dr Steidl asked for a "lenient judgment" ("mildes Urteil") for Mr Kamasinski.

The court refused a motion by both the prosecution and the defence to institute investigations into Mr Kamasinski’s bank account in New York, as well as a motion, eventually submitted by defence counsel on Mr Kamasinski’s insistence, for the lawyer, Dr E., to be called.

The record of the trial states that an interpreter attended but, in accordance with the usual practice, does not specify which of the statements made during the trial were interpreted or the extent to which this was done. It is uncontested that questions put to prosecution witnesses by the court and the public prosecutor were not interpreted, whereas the extent to which witnesses’ answers and other statements were interpreted is a subject of dispute. In accordance with the usual practice the interpretation provided was not simultaneous but consecutive and summarising.

According to the record of the trial, no formal objection was raised by the defence at the time with respect to the extent of the interpretation provided.

The written judgment was served upon the defence counsel, Dr Steidl, on 19 May 1981. The following day, Dr Steidl visited the applicant in prison, but declined to translate the whole text of the judgment for him. The applicant received a copy thereof (in German) on 27 May but was not provided with a written translation.

C. The appeal and nullity proceedings

"It is now almost three weeks since your judgment and I have not a copy nor has it been translated to me which is required by Austrian law and international law as I understand it. It would be proper for me to know what I have been tentatively convicted of so that I may write to the States and obtain the evidence (which Dr Steidl did not do) for the appeal to Vienna.

Therefore, may I please have a copy of the judgment (Urteil) or in the alternative a translation of the Urteil.

For six months I have been prevented from defending myself through the assignment of an attorney who did absolutely nothing to help me, but actually participated against me in the prosecution."

The letter of 4 May included the following:

"It is now one month since I appeared before your Court and you pronounced judgment (Urteil) and I still do not know what you said or the legal basis. The translator (Dolmetscher) only stated that I was found guilty and sentenced to 18 months in prison. I have no knowledge beyond that and clearly I do not expect Dr Steidl to do more than he has in the past; absolutely nothing. Unfortunately, I am being additionally punished due to my lack of understanding of the German language. The appointment of Dr Steidl to defend me has been consistently utilised as the ‘legal’ basis to deny me rights available to any Austrian or to me if I understood German. One month is more than adequate time for me to be informed of what you said in Court or pronounced in the written ‘Urteil’.

I have advised you that I wish to appeal the ‘Urteil’ with a ‘Nichtigkeitsbeschwerde’ [plea of nullity] to the Supreme Court of Austria in accord with applicable laws. One of the grounds of the ‘Nichtigkeitsbeschwerde’ is that I was deprived of effective assistance of a defender in that Dr Steidl did absolutely nothing to prepare me for the trial and refused to obtain any evidence on my behalf. On the basis that Dr Steidl has failed to perform his explicit obligation to defend me correctly and that such is a ground of the appeal, it is therefore impossible for Dr Steidl to represent me in the prosecution of the ‘Nichtigkeitsbeschwerde’. On this account, I have written to Dr Ernst Mayr, President of the Rechtsanwaltskammer [Bar Association], to request appointment of an English-speaking lawyer.

[Passage reproduced in paragraph 23 above.]

Because I am in the difficult position of not being effectively represented and not understanding the language, I can only attempt to do what I feel is correct legally and ethically. I am hereby informing you of the grounds for the appeal, which grounds are substantial, and which grounds should be properly presented by an experienced Austrian Attorney. (To date, I have not been visited by an Attorney for the purpose of preparing a ‘Nichtigkeitsbeschwerde’.) If I am not presenting the grounds correctly, it is only due to lack of legal advice."

The letter of 18 May (passages of which are set out at paragraph 23 above) was accompanied by a translation into German. In it the applicant reiterated that "on the 4th of May I wrote to you to inform you of some of the grounds of the Nichtigkeitsbeschwerde as well as the grounds for appointment of a new lawyer".

As before, the applicant received no response from the presiding judge.

By letter of 21 May 1981 Dr Steidl asked the Tyrol Bar Association to be discharged of his duties as defence counsel. On 22 May the Bar Association appointed Dr Schwank as new defence counsel for the applicant. Dr Schwank was notified thereof on 26 May.

(a) (under section 281 § 1.1a of the Code of Criminal Procedure - see paragraph 51 below) that the applicant was not adequately represented by counsel during the proceedings and in particular during the trial;

(b) (under section 281 § 1.3, taken together with sections 244, 250 and 252, of the Code - ibid.) that the interpretation during the trial was insufficient, and in particular that neither the indictment nor the written depositions nor the oral testimony of certain witnesses nor the questions put to witnesses by the presiding judge and the public prosecutor were interpreted into English;

(c) (under section 281 § 1.3, taken together with section 260, of the Code - ibid.) that save for its operative part the judgment was neither interpreted on the spot nor translated thereafter;

(d) (under section 281 § 1.4 of the Code - ibid.) that the trial court had not granted either the prosecution or the defence motions to have investigations carried out with the defendant’s bankers or the defence motions for the hearing of evidence from two witnesses;

(e) (under section 281 § 1.5 - ibid.) that the judgment was not sufficiently reasoned;

(f) (under section 281 § 1.9a and b - ibid.) that the trial court had incorrectly interpreted certain facts which established lack of fraudulent intent.

"The presiding judge, Regional Court Justice Dr Braunias, replied as follows to an inquiry by telephone:

Contrary to the allegations made in the plea of nullity, all essential points of the indictment, of the witnesses’ depositions, of the contents of the documents read out in court as well as of the judgment, including its reasoning, were translated by the interpreter who had been summoned and by counsel for the defence, Barrister Dr Steidl (who is a qualified English interpreter), at the trial which was attended by two members of the United States Embassy. The defendant was also permitted to comment on the charges and on each piece of evidence without any time-limit, as well as to put questions to the witnesses."

Neither the applicant nor his counsel was given notice of this inquiry or advised of its results.

As to the complaint that the applicant had not been adequately represented by counsel during the trial, the Supreme Court found that the Regional Court was only under a duty to appoint a defence counsel and to invite him to attend the trial as well as any other proceedings in which the defendant was allowed to participate. It was not, however, for the Regional Court to supervise the activities of the defence counsel, who was not subject to the control of the Court but to the disciplinary authority of the appropriate bar association. Accordingly, no ground for nullity could be derived from any insufficient performance by the defence counsel of his duties.

With respect to the interpretation during the trial, the Supreme Court observed that the Regional Court had not only appointed an interpreter to assist during the trial but that it had also appointed, at the applicant’s request, a defence counsel who was at the same time an English interpreter and with whom the applicant could communicate in his mother tongue. As a matter of law, neither an incomplete translation nor a failure to appoint an interpreter as such constituted a ground for nullity. They could at best be a source of challenge, under section 281 § 1.4 of the Code of Criminal Procedure (see paragraph 51 below), if a corresponding motion had been denied at the trial. Besides (im übrigen), the inquiry carried out by the Supreme Court pursuant to section 285f of the Code of Criminal Procedure had shown that, contrary to the allegations in the applicant’s plea of nullity, all essential parts of the indictment, of the testimony of witnesses, of the documents read out during the trial and also of the judgment, including its reasons, had been interpreted by the registered interpreter. Furthermore, the applicant had had the opportunity to comment on the charges and the evidence without any time restriction and also to put questions to witnesses.

On 11 November 1981 Mr Kamasinski lodged an application for his personal attendance before the Supreme Court, arguing, inter alia, that the determination of the sentence necessitated an assessment of his personality and that this required his presence. Moreover, the file before the Supreme Court included articles from the daily newspaper "Kurier" which were prejudicial to him and might adversely influence the Supreme Court. The articles, which had been published on 14, 15 and 16 November 1980 and which described him as an American espionage agent dangerous to the Republic of Austria, had also been in the file of the trial court. Lastly, he submitted, as his appeal concerned also the civil-law aspects of the judgment, it would be unfair if the private parties to whom he had to pay compensation could appear before the Supreme Court but not himself.

This application was rejected by decision of the Supreme Court on 20 November 1981 on the ground that no concrete indications suggesting a need for the accused’s personal attendance at the hearing on the appeal lodged solely for his benefit were apparent from the court files or from his application. If he harboured the belief that his personal presence would enable him to argue that the criminal proceedings had come about essentially as a result of a chain of unfortunate circumstances and misunderstandings, above all of a linguistic nature, he was unaware of the rule that the question of guilt can no longer be canvassed in the appeal proceedings. Moreover, all further circumstances set forth in his application could be put forward by his lawyer at the hearing. The Supreme Court’s ruling was served on Mr Kamasinski’s counsel.

The appeal was dismissed by the Supreme Court on 24 November 1981 after a hearing at which the applicant was represented by defence counsel. The Supreme Court considered that the sentence imposed by the Regional Court was adequate and that the relative weight of mitigating and aggravating circumstances had been correctly assessed. The adjudication of compensation to two private parties had been in accordance with the law and therefore there was no reason to refer the decision on this issue to the civil courts as requested by the applicant. The Supreme Court’s judgment also lists those present at the appeal hearing and there is no indication that the private parties whose compensation claims the Regional Court had upheld were present or represented at that hearing.

II.   RELEVANT DOMESTIC LAW

A. Interpretation

"The investigating judge shall have translated by a registered interpreter any documents drawn up in a language other than the one used in court (nicht gerichtsüblich) if they are relevant to the investigation and have them put in the file together with the translation."

Under the terms of section 163 of the Code:

"Where a witness does not have knowledge of the language used in court (Gerichtssprache), an interpreter shall be called in unless both the investigating judge and the court clerk have a command of the foreign language. In the official record of the hearing or an annex thereto the depositions of the witness shall be recorded in that language only where it is necessary to quote the actual expressions used by the person examined (section 104 § 3)."

According to section 104 § 3, such a necessity exists if the expressions used are important for judging the matter or if it is to be expected that the official record will be read out at the trial.

By virtue of section 198 § 3 of the Code, section 163 also governs, mutatis mutandis, interrogations of a person charged with an offence (Beschuldigter) if that person does not have knowledge of the language used in court.

B. Official defence counsel

"(2) If the person charged with a criminal offence (the accused) 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. ...

(3) If, for a trial before an assize court or a court with lay assessors, the accused or his legal representative has not chosen a defence lawyer, and if no defence lawyer has been assigned under paragraph 2 above, the court shall of its own motion appoint a defence lawyer whose fees will have to be borne by the accused unless the conditions for appointing a defence lawyer under paragraph 2 above are satisfied. ..."

Section 42 § 2 further provides:

"If the court has decided to assign a defence lawyer, it shall notify the Committee of the Bar Association competent for the area in which the court is situated so that this Committee may appoint a practising lawyer (Rechtsanwalt) as defence lawyer."

"The person charged with a criminal offence may at any time transfer the mandate of a freely chosen defence lawyer to another defence lawyer. Likewise, the mandate of an officially assigned defence lawyer shall be terminated as soon as the person charged designates another defence lawyer. However, in such cases the change in the person of the defence lawyer must not lead to any delay in the proceedings."

The Practising Lawyers Act (Rechtsanwaltsordnung, Imp. Law Gazette No. 96/1868 as amended) now provides that, in certain cases including conflict of interest or bias, the officially assigned defence lawyer shall be replaced by another defence lawyer (section 45 § 4 in the version of Bundesgesetzblatt für Österreich No. 383/1983). This provision did not exist at the relevant time. However, in practice an officially assigned defence lawyer could be replaced by the Committee of the Bar Association if this seemed appropriate.

There is no provision requiring the appointment of a defence lawyer with a knowledge of the language of the accused if the accused does not understand or speak the language used in court, but in practice, if requested by the defendant and if possible, a lawyer with sufficient command of the defendant’s language will be nominated.

C. Inspection of court files

"The investigating judge shall permit the defence lawyer on request to inspect the court files, except the records of deliberations, on the premises of the court and to make copies thereof; alternatively the investigating judge may also deliver photocopies to the lawyer. Where the defendant is not legally represented, he himself is entitled to these rights of defence counsel, and a defendant who is in detention may be permitted to inspect the files on the premises of the detention centre or prison. ..."

D. Opening statement by the defendant

E. Keeping of records

"(1) On pain of nullity a record shall be kept of the trial which shall be signed by the president and by the clerk of the court. It should contain the names of the members of the court present, of the parties and of their representatives, document all essential formalities of the proceedings, in particular set out what witnesses and experts were heard and which parts of the files were read out, whether the witnesses and experts were sworn and for what reason they were sworn, and finally all motions submitted by the parties and the decisions taken by the president or the court thereon. The parties are free to demand the setting down of specific points in the record in order to preserve their rights.

(2) Where the actual words used are of importance, the president shall at the request of a party at once order individual passages to be read out.

(3) The answers of the defendant and the depositions of the witnesses or experts shall only be mentioned if they contain deviations from, alterations of or additions to the statements set down in the files or if the witnesses or experts are heard for the first time at the public session.

(4) If the president or court thinks fit, they can order all depositions and pleadings to be taken down in shorthand; this shall always be ordered where a party requests it in good time and deposits the costs in advance. The shorthand notes shall, however, be transcribed into ordinary script within 48 hours, shall be submitted for verification by the president or a judge delegated by him, and shall be attached to the record.

(5) The parties are free to inspect the finished record and its enclosures, and to make copies thereof."

F. Nullity proceedings before the Supreme Court

"1a. if the defendant was not represented throughout the trial hearing by counsel although such representation was obligatory;

 ...

3.  where during the trial hearing there has been a breach of, or a failure to comply with, a provision in respect of which it is expressly provided that such breach or failure shall entail nullity;

 ...

4.  if no decision has been taken at the trial on a motion of the person lodging the plea of nullity or if an interim decision rejecting a motion or objection of the person lodging the plea of nullity has been taken in a manner which disregarded or incorrectly applied legal provisions or procedural principles whose observance is necessary for securing a procedure in conformity with essential requirements of the prosecution and of the defence;

5. if the judgment of the trial court ... gives no or manifestly insufficient reasons for its decision;

 ...

9. if the judgment was rendered in breach or misapplication of a statute in relation to the issue

(a) whether the act with which the defendant is charged amounts to a criminal offence within the jurisdiction of the courts;

(b) whether there are circumstances which exclude punishment or prosecution in respect of the act ...;

(c) ..."

Examples of the kind of ground referred to in paragraph 1.3 are failure to recite the indictment at the commencement of the trial (as required by section 244 of the Code of Criminal Procedure), failure to bring to the knowledge of the defendant the testimony of witnesses heard in his absence (as required by section 250 of the Code), and failure to state in the judgment the grounds supporting any finding of guilt (as required by section 260 of the Code). However the failure to make such recitals in a language which a non-German speaking defendant can understand does not constitute a fatal error requiring a verdict of guilty to be nullified (see the judgment of the Supreme Court in the present case - paragraph 37 above).

By virtue of section 285f the Supreme Court, "when deliberating in private, may ... order that inquiries be made as to facts relating to alleged procedural defects (section 281 § 1.1-4)".

Where the Supreme Court does not render its decision in private, an unrepresented defendant in custody has to be informed of the date set down for the hearing and advised that he may only appear through a lawyer (section 286 § 2). In the case of a represented defendant only the defence lawyer is informed of the date (section 286 § 3). Under the terms of section 287 § 3 the defendant or his lawyer is always entitled to the last word (letzte Äusserung) at the hearing.

G. Appeal proceedings before the Supreme Court

"As regards the fixing of a day for the public hearing and the procedure, sections 286 and 287 are applicable mutatis mutandis, provided that the defendant not in custody shall always be summoned and that the defendant in custody may be caused to be brought before the court."

Section 296 § 3 was amended in 1983 and 1987. The second sentence now provides that the defendant in custody shall be brought before the court if he so requests in his appeal or in his counter-statement or if his presence appears to be necessary in the interests of the proper administration of justice or for other reasons.

Section 296 § 3, last sentence, further specifies that "if the appeal is directed against the adjudication of civil claims, the private party concerned shall also be summoned" (translation from German).

PROCEEDINGS BEFORE THE COMMISSION

(a) as regards the Regional Court proceedings, that there had been no violation of the applicant’s rights to

(i)  be informed, in a language he understood and in detail, of the accusation against him (Article 6 § 3 (a)) (art. 6-3-a) (eleven votes to six);

(ii) have adequate facilities for the preparation of his defence (Article § 3 (b)) (art. 6-3-b) (fourteen votes to three);

(iii) legal assistance (Article 6 § 3 (c)) (art. 6-3-c) (unanimously);

(iv) examine witnesses (Article 6 § 3 (d)) (art. 6-3-d) (unanimously);

(v)  have the assistance of an interpreter (Article 6 § 3 (e)) (art. 6-3-e) (fifteen votes, with two abstentions);

(vi) a fair hearing (Article 6 § 1) (art. 6-1) (eleven votes to six);

(vii) be presumed innocent (Article 6 § 2) (art. 6-2) (unanimously);

(b) as regards the Supreme Court proceedings on the plea of nullity, that there had been a violation of Article 6 § 1 (art. 6-1) (unanimously);

(c) as regards the Supreme Court proceedings on the appeal, that there had been a violation of Article 14 read in conjunction with Article 6 § 1 (art. 14+6-1) and Article 6 § 3 (c) (art. 14+6-3-c) (right to defend oneself in person) (ten votes to one, with six abstentions);

(d) as regards the case as a whole, that no separate issue arose under Article 13 (art. 13) (unanimously).

"to hold that in the present case the provisions of Article 13 (art. 13) ... and also of Article 6 §§ 1, 2 and 3 (a) to (e) (art. 6-1, art. 6-2, art. 6-3-a, art. 6-3-b, art. 6-3-c, art. 6-3-d, art. 6-3-e) and Article 6 § 1 taken in conjunction with Article 14 (art. 14+6-1) have not been violated, and that therefore the facts underlying the dispute do not indicate any breach of the Convention".

"1. Your applicant was denied the right to defend himself in person or through legal assistance of his choice, in violation of Article 6 § 3 (c) (art. 6-3-c).

2. Your applicant was denied the right to adequate and effective legal assistance, for the purpose of securing his right to a fair trial, in violation of Article 6 § 3 (c) (art. 6-3-c) when construed in light of Article 6 § 1 (art. 6-1) (right to a fair trial).

3. Your applicant was denied the right to be informed, in a language he understood, of the causes and details of the criminal charges against him in violation of Article 6 § 3 (a) (art. 6-3-a).

4. Your applicant was denied the right to enjoy an opportunity to prepare a defence in violation of Article 6 § 3 (b) (art. 6-3-b).

5.  Your applicant was denied an effective remedy for the purpose of obtaining relief from the effects of the violations cited above (1-4) in violation of Article 13 (art. 13) of the Convention.

6.  Your applicant was denied the right to adequate and effective assistance of an interpreter for the purpose of securing his right to a fair trial, in violation of Article 6 § 3 (e) (art. 6-3-e) when considered with Article 6 § 1 (art. 6-1) (right to a fair trial).

7. Your applicant was denied the right to effectively question prosecution witnesses (attending the trial) concerning the veracity and accuracy of recollection of their testimony, in violation of Article 6 § 3 (d) (art. 6-3-d) when considered with the violation of Article 6 § 3 (e) (art. 6-3-e) as described above.

8. Your applicant was denied an effective remedy for the purpose of obtaining relief from the effects of the violations cited above (6-7), in violation of Article 13 (art. 13) of the Convention.

9. Your applicant was denied the right to question prosecution witness Theresia Hackl concerning the veracity and accuracy of recollection regarding her testimony, in violation of Article 6 § 3 (d) (art. 6-3-d) of the Convention.

10. Your applicant was denied the right to be informed, in a language he understood, of the causes in detail of the criminal charges brought against him by the witness Theresia Hackl, in violation of Article 6 § 3 (a), (d), (e) (art. 6-3-a, art. 6-3-d, art. 6-3-e).

11. Your applicant was denied an effective remedy for the purpose of obtaining relief from the effects of the violations cited above (violations 9 and 10), in violation of Article 13 (art. 13) of the Convention.

12. Your applicant was denied the right to resolve any contradictions that may have been the result of faulty interpretation and this denial of the right to defend violates Article 6 § 3 (b), (c) and (e) (art. 6-3-b, art. 6-3-c, art. 6-3-e) (when construed individually or in consideration of Article 6 § 1 and Article 14) (art. 6-1, art. 14).

13. Your applicant was denied the right to a fair trial due to the violation cited above as 12 and the reliance on evidence derived in light of the said violation to support a finding of culpability; the combination of factors being offensive against Article 6 § 1 (art. 6-1) (right to a fair trial).

14. Your applicant further claims that he was the victim of discriminatory treatment in violation of Article 14 (art. 14) due to his inability to understand the language of the court and therefore could not exercise the rights guaranteed by the terms of Article 6 § 3 (b) (art. 6-3-b) to the same degree as a defendant understanding the language of the court.

15. Your applicant was denied an effective remedy for the purpose of obtaining relief from the effects of the violations cited above (12-14), in violation of Article 13 (art. 13).

16. Your applicant was denied the right to obtain the attendance and examination of defence witnesses under the same conditions as prosecution witnesses, in violation of Article 6 § 3 (d) (art. 6-3-d).

17. Your applicant was denied the right to examine the prosecution witnesses named Wellington and Bruck concerning the veracity and accuracy of recollection of any unsworn evidence they offered against him, in violation of Article 6 § 3 (d) (art. 6-3-d) of the Convention.

18. Your applicant was denied the right to be informed, in a language he understood, of the causes and details of the criminal charges against him, brought by the witnesses Bruck and Wellington, in violation of Article 6 § 3 (a) (art. 6-3-a) of the Convention.

19. Your applicant was denied an effective remedy for the purpose of obtaining relief from the effects of the violations cited above (as violations 16-18), in violation of Article 13 (art. 13) of the Convention.

20. Your applicant was denied the right to be presumed innocent by an impartial judiciary prior to a finding of guilt according to law, in violation of Article 6 §§ 1 and 2 (art. 6-1, art. 6-2) of the Convention.

21. Your applicant was denied the right to be presumed innocent until such time as he was proved guilty according to law, in violation of Article 6 § 2 (art. 6-2).

22. Your applicant was denied the right to be tried by an impartial tribunal, in violation of Article 6 § 1 (art. 6-1).

23. Your applicant was denied an effective remedy for the purpose of obtaining relief from the effects of the violations cited above (violations 20-22), in violation of Article 13 (art. 13) of the Convention.

24. Your applicant was denied the right to enjoy the free assistance of an interpreter, in violation of Article 6 § 3 (e) (art. 6-3-e).

25. Your applicant was denied the right to believe that he would not be liable for interpreter’s fees irrespective of the issue of guilt, in violation of Article 6 § 3 (e) and Article 6 § 1 (art. 6-3-e, art. 6-1) (right to a fair trial).

26. Your applicant was denied the enjoyment of the right to defend as set forth by Article 6 § 3 (art. 6-3) and he was denied the enjoyment of the right to remedy violations of the Convention pursuant to Article 13 (art. 13); the denial of the enjoyment of the said rights occasioned by discriminatory application of the Austrian Code of Criminal Procedure, in violation of Article 14 (art. 14) of the Convention.

27. Your applicant was denied the right to a public trial fully consistent with principles of democracy, in violation of Article 6 § 1 (art. 6-1) of the Convention."

AS TO THE LAW

I.   SCOPE OF THE CASE BEFORE THE COURT

II.   PRELIMINARY OBJECTION OF NON-EXHAUSTION OF DOMESTIC REMEDIES

III.  ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6), TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14 (art. 14+6)

Article 6 (art. 6)

"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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

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."

Article 14 (art. 14)

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

A. Proceedings before the Regional Court

1. Legal assistance

He cited the non-attendance of the lawyer at the indictment hearing (see paragraph 15 above) and the brevity of the lawyer’s pre-trial visits to the prison (see paragraphs 14 and 17 above). He accused the lawyer of failing to acquaint him with the prosecution evidence prior to the trial. He criticised the lawyer’s performance at the trial on a number of counts, for example in agreeing to the introduction of written statements by out-of-court witnesses, in omitting to make certain motions in order to preserve the right to lodge a plea of nullity and in asking in the concluding speech for a "lenient judgment" ("mildes Urteil") (see paragraphs 25 to 27 above). In his submission, after the incident following which defence counsel made an unsuccessful request to withdraw from the case (see paragraph 25 above), he was "without the benefit of any legal assistance at all". The lack of tangible evidence of effective assistance was, so he contended, demonstrated by the incomplete file which Dr Steidl had handed over to Dr Schwank, the legal aid defence lawyer appointed for the purpose of the appeal and nullity proceedings (see paragraph 34 above).

He alleged violation of paragraphs 1 and 3 (c) of Article 6 (art. 6-1, art. 6-3-c).

On its evaluation of the evidence the Commission likewise did not find any violation of Article 6 § 3 (c) (art. 6-3-c).

Certainly, in itself the appointment of a legal aid defence counsel does not necessarily settle the issue of compliance with the requirements of Article 6 § 3 (c) (art. 6-3-c). As the Court stated in its Artico judgment of 13 May 1980:

"The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective ... . [M]ere nomination does not ensure effective assistance since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties. If they are notified of the situation, the authorities must either replace him or cause him to fulfil his obligations." (Series A no. 37, p. 16, § 33)

Nevertheless, "a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes" (ibid., p. 18, § 36). It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed. The Court agrees with the Commission that the competent national authorities are required under Article 6 § 3 (c) (art. 6-3-c) to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way.

According to the terms of these two subsequent letters, Mr Kamasinski had in his letter of 19 March specifically requested the presiding judge to discharge Dr Steidl if the lawyer’s assignment was the basis for denying Mr Kamasinski himself direct access to the evidence recorded in the court file. This request cannot be regarded as tantamount to notifying the trial court that there were grounds to intervene as regards his legal representation. In contrast, after the trial and his conviction Mr Kamasinski made a written request on 6 April 1981 for the appointment of a new lawyer on the ground that he did "not get along with Dr Steidl". This post-trial request was repeated in, inter alia, letters of 21 April and 4 May 1981 to the presiding judge, where Mr Kamasinski alleged that Dr Steidl had not correctly defended him (see paragraphs 31 and 32 above).

There remains the complaint said to have been made to the presiding judge by Mr Kamasinski in his letter of 30 March that "Dr Steidl had not prepared [him] for the trial, nor provided or translated all the relevant witness statements" (see paragraphs 19 and 23 above). Although the presiding judge did not reply directly to Mr Kamasinski’s pre-trial letters, the Court has no reason to doubt that he did discuss them with Dr Steidl (see paragraph 19 in fine above). Evidently the presiding judge did not consider that a replacement of legal aid counsel was called for. It cannot be said that this was unreasonable.

It may also be correct that the defence at the trial could have been conducted in another way, or even that Dr Steidl in some respects acted contrary to what Mr Kamasinski at the time or subsequently considered to be in his own best interests. Nevertheless, despite Mr Kamasinski’s criticisms, the circumstances of his representation at the trial do not reveal a failure to provide legal assistance as required by paragraph 3 (c) (art. 6-3-c) or a denial of a fair hearing under paragraph 1 (art. 6-1).

2. Interpretation and translation

However, paragraph 3 (e) (art. 6-3-e) does not go so far as to require a written translation of all items of written evidence or official documents in the procedure. The interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events.

In view of the need for the right guaranteed by paragraph 3 (e) (art. 6-3-e) to be practical and effective, the obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided (see, mutatis mutandis, the Artico judgment previously cited, Series A no. 37, pp. 16 and 18, §§ 33 and 36 - quoted above at paragraph 65).

(a) Pre-trial investigations

These claims were disputed by the Government.

(b) The indictment

The Government replied that, as the length of the hearing suggested, all the essential parts of the indictment were interpreted. In their view the facts underlying the indictment, notably the failure to pay rent and telephone bills, were not so complex that an oral explanation to the defendant was insufficient. Furthermore, neither the applicant nor his lawyer had asked for a written translation.

The Commission for its part was satisfied on the evidence that Mr Kamasinski had been informed of the charges against him by at least mid-February 1981, some six weeks before the trial.

The minutes of the hearing held on 16 February 1981 record that the defendant was given notice of the indictment (see paragraph 15 above). The interpretation provided did not prevent him from challenging the indictment. With the assistance of the judge he lodged an objection, not on the ground of inability to understand the indictment but on the ground that it was defective by reason of not being supported by sufficient evidence (ibid.). The minutes further show that he asked for the indictment also to be served on his defence counsel, but they make no mention of a complaint about inadequate interpretation or of a request for a written translation (ibid.). Neither did the letter he wrote to his defence counsel immediately after the indictment hearing contain any such complaint or request (see paragraph 16 above). At the opening of the trial hearing on 2 April 1981 Mr Kamasinski, when asked, stated that he understood the charges and he and his counsel waived interpretation of the indictment into English (see paragraph 24 above).

(c) The trial hearing

The Government vigorously rejected the applicant’s allegations.

The Commission likewise concluded that neither sub-paragraph (d) (art. 6-3-d) nor sub-paragraph (e) (art. 6-3-e) had been violated.

The record of the trial, which is seventeen pages long, notes the attendance throughout of a registered interpreter, without however specifying the extent of the interpretation provided (see paragraph 27 above). On the other hand, it summarises in some detail the substance of the evidence given as well as various declarations made by or on behalf of Mr Kamasinski. Those declarations do not include any objection, formal or informal, by Mr Kamasinski or his lawyer regarding the quality or scope of the interpretation.

The Court does not find it substantiated on the evidence taken as a whole that Mr Kamasinski was unable because of deficient interpretation either to understand the evidence being given against him or to have witnesses examined or cross-examined on his behalf.

(d) The judgment

(e) Interpretation charges

Whilst the attitude of the accused towards the appointment of an interpreter might "in some borderline cases" be influenced by the fear of financial consequences (see the Luedicke, Belkacem and Koç judgment previously cited, Series A no. 29, p. 18, § 42), the temporary concern occasioned to Mr Kamasinski because of the initial error of the Austrian authorities was not such as to have had any repercussions on the exercise of his right to a fair trial as safeguarded by Article 6 (art. 6).

3. Access to the trial-court file

"Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

The system provided for under section 45 § 2 of the Austrian Code of Criminal Procedure is not in itself incompatible with the right of the defence safeguarded under Article 6 § 3 (b) (art. 6-3-b). Neither, in the Court’s view, did the consequences of its operation in the present case involve violation of any of the Convention provisions relied on by Mr Kamasinski. The related complaint that his counsel failed to acquaint him with the prosecution evidence fails for the reasons given above (see paragraphs 66 to 69).

4. Non-attendance of witnesses at the trial

The Court concludes that no violation of Article 6 § 3 (d) (art. 6-3-d) has been established under this head.

5. "Civil parties"

Neither the Government nor the Commission expressed any views on these contentions.

In the Court’s view, the provisions in question are in themselves not inconsistent with the principles of a fair trial as embodied in Article 6 § 1 (art. 6-1); and, in so far as any difference of treatment exists between defendants in civil actions and defendants to civil claims in criminal proceedings, the interests of the proper administration of justice provide an objective and reasonable justification for the purposes of Article 14 (art. 14) (see, mutatis mutandis, the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 34, § 10). Neither, on the facts, can the application of these provisions in Mr Kamasinski’s case be found to have given rise to a violation of the Convention.

6. Defendant’s reply to the indictment

7. Miscellaneous matters

8. Conclusion

The Court, like the Commission, finds no cause for holding that taken cumulatively the procedural deficiencies alleged by Mr Kamasinski resulted in rendering unfair, for the purposes of Article 6 § 1 (art. 6-1), the proceedings at first instance considered as a whole.

B. Proceedings before the Supreme Court

1. Nullity proceedings

Neither the Government nor the Commission commented directly on this complaint.

On the second count the Government replied that the results of the inquiry carried out by the Supreme Court were "not of essential significance" for its judgment and were probably only mentioned there "for the sake of completeness", the decisive reason in law for rejecting the plea of inadequate interpretation being the formal one that no recognised ground for nullity had been shown (see paragraph 37 above). On the third count the Government explained that the Procurator General is not the representative of the prosecution but is entrusted with the independent task of upholding the law, so that his participation before the Supreme Court did not affect the principle of equality of arms. The Government, like the Commission, did not specifically answer the argument concerning the trial record.

The Commission did not find it necessary to consider the position of the Procurator General but concluded that the Supreme Court had acted contrary to the requirements of a fair trial in relation to its inquiry concerning interpretation.

It is an inherent part of a "fair hearing" in criminal proceedings as guaranteed by Article 6 § 1 (art. 6-1) that the defendant should be given an opportunity to comment on evidence obtained in regard to disputed facts even if the facts relate to a point of procedure rather than the alleged offence as such. As the Commission pointed out, the author of the statement cited was a judicial official - the presiding judge of the Regional Court - who, according to the applicant, had been responsible for failing to ensure adequate interpretation at the trial. Admittedly, as the Government stressed, the information obtained from the presiding judge was not, as a matter of Austrian law, the primary reason for rejecting the plea of inadequate interpretation. Nevertheless, in conducting the factual inquiry the Supreme Court did not observe the principle that contending parties should be heard (le principe du contradictoire), this being one of the principal guarantees of a judicial procedure (see, mutatis mutandis, the Feldbrugge judgment of 29 May 1986, Series A no. 99, pp. 17-18, § 44).

There was therefore a breach of Article 6 § 1 (art. 6-1) in this respect.

2. Appeal proceedings

The Government argued in reply that the nature of the review carried out by the Supreme Court in the appeal proceedings did not render the applicant’s attendance necessary. In their submission, no right of personal attendance derived from Article 6 (art. 6) and in consequence there could be no violation of Article 14 taken in conjunction with that Article (art. 14+6).

The Commission expressed the opinion that the Supreme Court’s decision not to authorise the applicant’s attendance at the appeal hearing was discriminatory, within the meaning of Article 14 (art. 14), vis-à-vis appellants at liberty.

However, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing (see the Ekbatani judgment of 26 May 1988, Series A no. 134, p. 14, § 31) as it does for the trial hearing (see the Colozza judgment of 12 February 1985, Series A no. 89, p. 14, § 27). Consequently, this is an area where the national authorities enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the Rasmussen judgment of 28 November 1984, Series A no. 87, p. 15, § 40, and the precedents cited there). The special features of the appeal procedure before the Supreme Court and the particular circumstances of Mr Kamasinski’s appeal must be taken into account in determining whether Mr Kamasinski was the victim of discrimination as alleged (see, mutatis mutandis, the Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 22, § 56).

A detained appellant in the nature of things lacks the ability that an appellant at liberty or a "civil party" in criminal proceedings has to attend an appeal hearing. As the Commission noted, special technical arrangements, including security measures, have to be made if a convicted person is to be brought before an appeal court.

Accordingly, no discrimination contrary to Article 14 (art. 14) can be held to have occurred.

IV.   ALLEGED VIOLATION OF ARTICLE 13 (art. 13)

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

V.   APPLICATION OF ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

The Government denied the possibility of any causal link between the violations alleged by the applicant and the prejudice flowing from his imprisonment in Austria. In the alternative, in the opinion of the Government, as well as that of the Delegate of the Commission, the amount claimed was excessive.

Having regard to the nature and limited extent of the breach found, the Court considers that in relation to any damage sustained the present judgment constitutes in itself adequate just satisfaction for the purposes of Article 50 (art. 50), without it being "necessary" to afford financial compensation (see, for example, the Brogan and Others judgment of 30 May 1989, Series A no. 152-B, p. 45, § 9).

B. Costs and expenses

The Government contested the necessity of the applicant’s own research expenses and of Dr Gorbach’s attendance at the public hearing, as well as the reasonableness of the amount claimed as Dr Schwank’s fees.

As to the remaining claims, costs and expenses incurred by the injured party inhering violation of the Convention established by the Court are recoverable, provided that they were actually incurred, necessarily incurred and reasonable as to quantum (see, as the most recent authority, the H. v. France judgment of 24 October 1989, Series A no. 162, p. 27, § 77). Only in relation to one of the "plethora of issues raised by [the] applicant as potential violations of the Convention", to use the applicant’s own words, has the Court held in his favour. His numerous other complaints have been rejected as unsubstantiated.  Furthermore, the sole instance of violation found was far from being one of the main sources of the applicant’s grievances. This being so, quite apart from doubts as to the necessity and reasonableness of a number of the heads of claim, the Court considers that only a small proportion of the sums sought should be reimbursed (see, mutatis mutandis, the Olsson judgment of 24 March 1988, Series A no. 130, p. 43, § 105 in fine). Making an assessment on an equitable basis, as required by Article 50 (art. 50), the Court awards Mr Kamasinski USD 5,000 in respect of costs and expenses.

FOR THESE REASONS, THE COURT

1. Rejects unanimously the Government’s preliminary objection of non-exhaustion of domestic remedies;

2. Holds unanimously that there has been a violation of Article 6 § 1 (art. 6-1) by reason of the unilateral character (caractère non contradictoire) of the factual inquiry carried out by the Supreme Court in examining the applicant’s plea of nullity;

3. Holds by six votes to one that there has been no violation of Article 14 taken together with Article 6 §§ 1 and 3 (c) (art. 14+6-1, art. 14+6-3-c) by reason of the refusal to grant the applicant leave to attend the appeal hearing before the Supreme Court;

4. Holds unanimously that there has been no other violation of Article 6 (art. 6), whether taken on its own or in conjunction with Article 14 (art. 14+6);

5. Holds unanimously that it is not necessary also to examine the case under Article 13 (art. 13);

6. Holds unanimously that Austria is to pay to the applicant, in respect of costs and expenses, the sum of USD 5,000 (five thousand United States dollars);

7. Rejects unanimously the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 19 December 1989.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the separate opinion of Mr De Meyer is annexed to this judgment.

R.R.

M.-A.E.

SEPARATE OPINION OF JUDGE DE MEYER

(Translation)

I cannot agree with paragraphs 106-108 of the reasons or with paragraph 3 of the judgment’s operative provisions.