In the case of Kremzow v. Austria*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr C. Russo,
Mrs E. Palm,
Mr R. Pekkanen,
Sir John Freeland,
Mr J. Makarczyk,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Having deliberated in private on 25 March and
24 August 1993,
Delivers the following judgment, which was adopted on the
Notes by the Registrar
* The case is numbered 29/1992/374/445. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
11 September 1992 and by the Government of the Republic of
Austria ("the Government") on 1 October 1992, within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 12350/86) against Austria lodged with the
Commission under Article 25 (art. 25) by an Austrian national,
Mr Friedrich Wilhelm Kremzow, on 1 August 1986.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Article 48
(art. 48). The object of the request and the application was to
obtain a decision as to whether the facts of the case disclosed
a breach by the respondent State of its obligations under
Article 6 paras. 1 and 3 (b) and (c) (art. 6-1, art. 6-3-b,
art. 6-3-c) of the Convention. The request also sought a
decision as regards Articles 13 and 14 (art. 13, art. 14).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and, having been
refused permission by the President to represent himself,
designated the lawyers who would represent him (Rule 30); the
President gave the said lawyers leave to use the German language
(Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)).
On 26 September 1992, in the presence of the Registrar, the
President drew by lot the names of the other seven members,
namely Mr L.-E. Pettiti, Mr R. Macdonald, Mr C. Russo,
Mrs E. Palm, Mr R. Pekkanen, Sir John Freeland and
Mr J. Makarczyk (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. In his capacity as President of the Chamber (Rule 21
para. 5), Mr Ryssdal, through the Registrar, consulted the Agent
of the Government, the applicant's lawyers and the Delegate of
the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the Government's and the
applicant's memorials on 15 January 1993. The applicant
submitted his claims under Article 50 (art. 50) on 19 March 1993.
5. In a letter of 9 December 1992 the applicant had asked
that the President grant various interim measures
(Rule 36 para. 1). After observations had been sought from the
Government and the Delegate of the Commission in this regard this
request was refused by the President on 2 February 1993.
On 25 February 1993 the Chamber also rejected an
application by the applicant to hear witnesses and to order the
production of various documents.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 23 March 1993. The Court had held a preparatory meeting
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Federal Chancellery, Agent,
Mr F. Haug, Federal Ministry for Foreign Affairs,
Ms U. Kathrein, Federal Ministry of Justice, Advisers;
(b) for the Commission
Mrs J. Liddy, Delegate;
(c) for the applicant
Mr L. Weh, Rechtsanwalt,
Mr H. Mühlgassner, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Okresek for the
Government, Mrs Liddy for the Commission and Mr Weh for the
applicant, as well as replies to its questions.
7. With leave from the Chamber (Rule 37 para. 1 in fine),
the applicant submitted on 23 March 1993 an expert opinion on the
procedure before the Supreme Court. The Government filed their
comments on this and on the applicant's Article 50 (art. 50)
claims on 19 April 1993.
AS TO THE FACTS
I. The particular circumstances of the case
A. The institution of the criminal proceedings
against the applicant
8. The applicant worked as a judge in the Austrian courts
from 1964 to 1978 when he retired for health reasons. He then
worked as a consultant for various practising lawyers in the area
of Vienna, including Mr P. On 16 December 1982 he presented
himself before the Regional Court (Kreisgericht) of Korneuburg
and confessed to having killed Mr P.
Following his arrest, the applicant was detained in a
psychiatric hospital in Vienna in view of his mental condition
and the risk of his committing suicide. He was subsequently
detained in the Mittersteig special institution for mentally
9. On 30 November 1983 the public prosecutor filed an
indictment charging the applicant with murder under section 75
of the Penal Code (Strafgesetzbuch) and with illegal possession
of a firearm under section 36 of the Weapons Act (Waffengesetz)
as well as with a number of fraud offences. It was alleged that
financial difficulties had led the applicant to defraud Mr P. and
that the motive for the murder was his fear that these offences
would be discovered. The prosecution requested that the
applicant be committed to an institution for mentally ill
criminals under section 21 of the Penal Code.
1. The trial before the Court of Assizes
10. On 13 June 1984 the applicant's trial commenced before a
Court of Assizes of the Regional Court of Korneuburg sitting with
a jury. He was represented by an official defence counsel, the
court having refused his request to defend himself in person.
At the hearing the applicant retracted his confession
which he claimed was the product of a psychotic aberration,
alleging that Mr P. had committed suicide in his presence. The
trial was discontinued and the case was referred back to the
investigating judge with a view to clarifying this new
11. A new trial began on 5 November 1984 before the Court of
Assizes. On 18 December 1984 the jury found him guilty of murder
and unlawful possession of a firearm. The charges of fraud had
earlier been dropped by the prosecution for want of evidence.
The jury found that the applicant was criminally responsible and
expressed the opinion that "the motive remains unknown, too many
The court, sitting with the jury, sentenced him to twenty
years' imprisonment, the maximum determinate sentence possible
under Austrian law in a case of murder, and ordered him to be
committed to an institution for mentally deranged criminals.
2. The Supreme Court proceedings
(a) Remedies sought by the parties
12. The applicant filed a plea of nullity
(Nichtigkeitsbeschwerde) with the Supreme Court (Oberster
Gerichtshof) complaining, inter alia, that he had been denied the
right to defend himself and that the trial had not been fair.
His wife and mother filed a further plea of nullity as well as
an appeal (Berufung) challenging the length of the sentence and
the commitment of the applicant to a special institution.
13. The public prosecutor also appealed against the sentence
requesting that a life sentence be imposed because of the
planning involved in the offence and the malicious way it was
carried out. A further appeal against the decision to refer his
claim for damages to the civil court was lodged by Mr R.P., the
son of Mr P.
(b) The consultation of the Attorney General
14. On 2 May 1985 the Supreme Court informed the Attorney
General's office (Generalprokuratur) of the various remedies
sought in the applicant's case and transmitted the file which
included documents concerning these remedies introduced by the
applicant, his relatives, the public prosecutor and the private
party. The note mentioned the judge rapporteur's name and was
signed by him.
The Attorney General's position paper on the nullity
pleas (croquis) dated 24 July 1985 was received by the Supreme
Court on 2 August 1985. It ran to forty-nine pages and
considered in detail the various grounds of nullity invoked by
the applicant and his mother and wife. The Attorney General
expressed the view that the Supreme Court should hold a public
hearing and reject these pleas. He did not make any submissions
regarding the various appeals against the sentence.
15. The applicant applied to the Supreme Court on
18 September 1985 for communication of the Attorney General's
position paper, as did his defence counsel on 2 October 1985.
However, these requests were not acted upon. There is no record
in the Supreme Court that the applicant's counsel sought to
inspect the file. The position paper was eventually served on
counsel only on 9 June 1986 (see paragraph 34 below).
(c) Additional evidence
16. On 31 December 1985 Mr R.P. (the victim's son) submitted
a number of missing diary-sheets to the Supreme Court. During
the trial the applicant had repeatedly requested the production
of missing parts of Mr P.'s diary as evidence that Mr P. had
intended to commit suicide. A motion to search Mr R.P.'s home
in this connection had been rejected by the trial court.
Subsequently he had also introduced a civil action against
Mr R.P. to produce those documents.
On learning in the course of the civil action that parts
of the diary had been submitted to the Supreme Court, the
applicant unsuccessfully requested the Regional Court of
Korneuburg on 22 January 1986 to order a search of the home of
Mr R.P. whom he suspected of withholding further relevant
documents. Copies of the diary-sheets submitted to the Supreme
Court were later served on the applicant through the Regional
The applicant maintains that the Supreme Court carried
out additional investigations concerning certain forged cheques.
This, however, is denied by the Government.
(d) The judge rapporteur's draft decision
17. Prior to the fixing of the date of the Supreme Court's
hearing, the judge rapporteur, as is customary in the procedure
of the court, prepared a draft judgment which was included in the
official file. The draft appeared to have been revised. The
rapporteur generally followed the line developed in the Attorney
General's position paper and proposed to reject the various pleas
of nullity. The draft also dealt with the question of the
It appears that members of the Chamber of the Supreme
Court dealing with the case took part in preliminary
deliberations (Vorberatungen) prior to the hearing and that
statements by other members concerning the draft decision were
placed on the file at some point before the hearing.
(e) Summons to the Supreme Court's hearing
18. On 4 June 1986 the Supreme Court fixed the hearing date
for the pleas of nullity and the appeals for 2 July 1986.
The applicant received the summons to the hearing on
17 June 1986. The notification stated that at the hearing of the
pleas of nullity the applicant, being incarcerated, could only
appear through his official defence counsel in accordance with
sections 286 para. 2 and 344 of the Code of Criminal Procedure
(Strafprozessordnung, "the Code"-see paragraphs 28-29 below).
At the hearing of the appeals he would not be brought to the
court as the conditions of section 296 para. 3 of the Code were
not satisfied (see paragraph 31 below). It was also ordered that
the Attorney General's position paper should be sent to the
applicant's official defence counsel and to the lawyer acting on
behalf of his wife and mother.
(f) The applicant's request to attend the
Supreme Court's hearing in person
19. On 19 June 1986 the applicant, invoking Articles 6 and 14
(art. 6, art. 14) of the Convention, petitioned the Supreme Court
to be allowed to attend the hearing of the pleas of nullity in
person, a right accorded to defendants who are not incarcerated.
He relied on the right to defend himself in person, as guaranteed
in Article 6 para. 3 (c) (art. 6-3-c), and observed that he had
consistently objected to his being represented by official
defence counsel and that under section 296 para. 3 of the Code
detained defendants were entitled to be brought to a hearing on
an appeal against sentence. At the same time the applicant
pointed out, inter alia, that no decision had so far been taken
on his request for a copy of the Attorney General's croquis.
20. The petition was rejected by the Supreme Court on
25 June 1986 and the decision notified to the applicant's counsel
on the day of the hearing (2 July 1986). The court noted that
the applicant had not applied to be brought to the hearing of the
appeals as provided for by section 296 para. 3 of the Code (see
paragraph 31 below). It had no doubts concerning the
constitutionality and conformity with Article 6 (art. 6) of the
Convention of section 286 para. 2 of the Code (see paragraph 29
below). It further stated that the applicant was not entitled
to receive a copy of the Attorney General's croquis personally
and that Article 6 (art. 6) of the Convention had been observed
since a copy of this document had been made available to his
official defence counsel.
(g) The Supreme Court hearing and judgment
21. The hearing before the Supreme Court of the pleas of
nullity and appeals was held on 2 July 1986 in the absence of the
applicant. He was represented by his official defence counsel.
It began at 9 a.m. and closed at 11.25 a.m. The court heard
submissions from the legal representatives of the parties and a
representative of the Attorney General's office. Its
deliberations following the hearing lasted approximately thirty
minutes. A brief summary of the judgment was read out.
22. The court rejected the applicant's and his relatives'
pleas of nullity as well as the appeal brought by Mr R.P. It
allowed both the public prosecutor's appeal and, in part, the
appeal brought by the relatives and sentenced the applicant to
life imprisonment. It also annulled the order committing the
applicant to a mental institution, thereby requiring him to serve
his sentence in an ordinary prison.
In its evaluation of the aggravating circumstances of the
case, the Supreme Court stated:
"The court of first instance failed, ..., in assessing
the sentence, to make adequate allowance for the special
gravity of the accused's personal guilt taken together
with the objective weight of the offence involved in
(intentionally) killing a person in the particular
circumstances of this case. After all, this treacherous
crime - amounting practically to 'liquidation' of the
unsuspecting victim, who trusted the accused - and
committed with the reprehensible intention of
forestalling revelation of his own financial misdeeds,
reflects such a negative attitude (i.e. such baseness) on
the perpetrator's part, and such a degree of guilt, that
the imposition of a determinate prison sentence ... does
not (any longer) seem justified in the circumstances of
the case. The fact that the accused committed the crime
when in an abnormal mental state and under its influence
is not so important, and thus cannot counterbalance the
factors which tell against him in determining the
sentence. The only response to the accused's criminal
behaviour which is commensurate with his guilt is
accordingly a sentence of life imprisonment."
23. In the course of its judgment the court found that the
rejection by the trial court of the evidentiary motion in
connection with the diary-sheets did not impair the rights of the
defence (see paragraph 16 above). It went on to find that the
missing diary-sheets which had been submitted to the court would
not have "been likely to be of any significance to the jury's
24. The original (Urschrift) of the Supreme Court's judgment
shows that the rejection of the pleas of nullity was almost
literally based on the judge rapporteur's draft decision prepared
before the Supreme Court's hearing (see paragraph 17 above).
25. It appears that the applicant is still detained in the
Mittersteig special institution for mentally deranged offenders.
II. Relevant domestic law and practice
A. Plea of nullity
26. First-instance judgments given by Chambers of a Regional
Court can be challenged by a plea of nullity to the Supreme Court
on specific grounds enumerated in the Code of Criminal Procedure
(section 281 para. 1 and, as regards assize court judgments,
section 345 para. 1). The grounds in question include procedural
defects and misapplication of the substantive criminal law in the
finding of guilt and the determination of the sentence. In
principle they do not relate to the evaluation of the evidence
by the first-instance court and new facts and evidence cannot be
taken into account. The Supreme Court is bound by the facts and
evidence established in the first-instance judgment unless it
finds that no reasons have been given or that the reasons are
insufficient, contradictory, or clearly incompatible with the
contents of the file.
However the latter principles concerning the reasons for
the court's findings do not apply to nullity proceedings in
respect of jury verdicts in the assize courts. The Supreme
Court's task in such cases is mainly to control the acts of the
bench and the presiding judge of the assize court examining, in
particular, whether the trial has been conducted in a manner
which complies with fundamental procedural principles, whether
the right questions have been put and the right directions given
to the jury. The Supreme Court may only verify whether the jury
has provided unclear, incomplete or contradictory answers to the
questions put to it. As in other cases it also supervises the
correct application of the criminal law, but in so doing is bound
by the jury's findings as to the facts.
27. In certain cases the Supreme Court may reject a plea of
nullity without a public hearing (section 285 (c) of the Code).
In all other cases - such as the present - there will be a public
hearing which may also be combined with a public hearing on
appeals against sentence.
28. As regards the hearing on a plea of nullity section 286
of the Code provides:
"1. When the date of the public hearing is being fixed,
the accused ... shall be summoned ...
2. If the accused is under arrest, the notice of the
hearing given to him shall mention that he may only
appear through counsel.
29. Section 344 of the Code applies ,in principle, the above
rules to nullity pleas arising out of trials by jury.
However, if the hearing is a combined one on a plea of
nullity and an appeal against sentence, an accused who is present
for the latter purpose may also exercise his rights concerning
the nullity plea.
B. Appeal against sentence
30. While legal defects in the sentencing procedure may also
form the subject of a plea of nullity, the sentence as such can
only 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. Where
the substance of an appeal is examined a public hearing must
normally be held.
31. As regards the personal appearance of the accused at
appeal hearings, section 296 para. 3, second sentence, of the
Code provided at the relevant time:
"The provisions of sections 286 and 287 are applicable,
mutatis mutandis, to the fixing of the date and the
holding of the public hearing subject to the proviso that
an accused who is not detained shall always be summoned
and that 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 otherwise if his
personal presence appears necessary in the interest of
C. Supreme Court's Rules of Procedure
32. The Supreme Court's internal procedure is governed by the
Federal Supreme Court Act (Bundesgesetz über den Obersten
Gerichtshof) and Rules of Procedure (Geschäftsordnung) adopted
pursuant to section 22 of this Act.
33. According to the Supreme Court Act, the Supreme Court
normally sits in chambers composed of five members, one of them
acting as the presiding judge, one as judge rapporteur (sections
5 and 6, paras. 1 and 2). Section 20, last sentence, provides
that the name of the judge rapporteur shall not be disclosed to
34. The relevant parts of section 60 of the Supreme Court's
Rules of Procedure read as follows:
"(2) ... the file has to be submitted to the judge
rapporteur competent according to the assignment of
(3) If the file is subsequently to be transmitted to the
Attorney General's office, either for comments or motions
or at their request for inspection before a decision, any
documents in it from which conclusions might be drawn as
to the content of the Supreme Court's forthcoming
decision or as to its deliberations (draft decision of
the judge rapporteur, comments by members of the Chamber
or other similar documents) must be withheld unless there
is a judicial order to the contrary.
(4) When the Attorney General's office has returned the
file the judge rapporteur shall transmit it to the
presiding judge for further action together with his
(6) When a public hearing is fixed only the summons form
shall be sent to the Attorney General's office for
information. The file shall be transmitted only if there
is a judicial order to this effect.
(7) If the Attorney General has submitted observations,
copies of them must be served on the other parties to the
nullity proceedings, not later than the fixing of the
date of the public hearing, unless there is a judicial
order to the contrary."
35. Section 65 para. 2 of the Rules of Procedure provides
that a record shall be prepared concerning every oral
deliberation and vote. This record may be kept confidential in
cases provided by law.
36. After the Chamber's vote on the decision either the judge
rapporteur or that member of the Chamber whose draft was adopted
must draw up the reasoning of the Supreme Court's decision
(section 65 para. 4). The presiding judge or his substitute, but
not the judge rapporteur, must approve the text before it is sent
out (section 65 para. 8).
PROCEEDINGS BEFORE THE COMMISSION
37. The applicant lodged his application (no. 12350/86) with
the Commission on 1 August 1986. He submitted numerous
complaints concerning the trial proceedings before the Assize
Court claiming breaches of Article 6 paras. 1, 2 and 3 (c) and
(d) (art. 6-1, art. 6-2, art. 6-3-c, art. 6-3-d) of the
Convention. He further complained that he was not allowed to be
present in person at the Supreme Court's hearing, in breach of
Article 6 paras. 1 and 3 (c) in conjunction with Article 14
(art. 14+6-1, art. 14+6-3-c). In addition he alleged that the
Supreme Court proceedings were unfair (Article 6 para. 1)
(art. 6-1) in that the court's judgment was prepared and
communicated to the Attorney General before the hearing and that
he did not have sufficient time to prepare his defence
(Article 6 para. 3 (b)) (art. 6-3-b). Finally he claimed a
violation of Article 5 in conjunction with Article 14
(art. 14+5), as regards the sentence imposed by the Supreme
Court, and of Article 13 (art. 13) as regards the scope of the
remedies available before the Supreme Court to redress Article 6
(art. 6) violations.
38. The Commission declared the case admissible on
5 September 1990 but only as regards the complaints relating to
the proceedings before the Supreme Court. In its report adopted
on 20 May 1992 (Article 31) (art. 31) the Commission expressed
(a) that there had been a violation of Article 6
paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) in that the applicant
was not allowed to be present in person at the Supreme Court's
hearing (eleven votes to three);
(b) that it was not necessary to examine the same
complaint under Article 14 in conjunction with Article 6
(art. 14+6) (eleven votes to three);
(c) that there had been no violation of Article 6 para. 1
(art. 6-1) by the fact that a draft judgment had been prepared
before the Supreme Court's hearing (unanimously);
(d) that there had been a violation of Article 6
paras. 1 and 3 (b) (art. 6-1, art. 6-3-b) in that he had not been
granted sufficient opportunities to obtain, and to comment on,
the Attorney General's position paper (eight votes to six);
(e) that there had been no violation of Article 6
(art. 6) as regards his remaining complaints concerning the
fairness of the Supreme Court's proceedings (unanimously);
(f) that there had been no violation of Article 13
(art. 13) or of Article 5 in conjunction with Article 14
(art. 14+5) (unanimously).
The full text of the Commission's opinion and of the
separate opinions contained in the report is reproduced as an
annex to this judgment*.
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 268-B of Series A of the Publications of the Court), but
a copy of the Commission's report is available from the registry.
AS TO THE LAW
I. SCOPE OF THE CASE
39. The applicant submitted that the Commission had failed to
examine his complaint that there had been a violation of the
presumption of innocence contrary to Article 6 para. 2 (art. 6-2)
of the Convention.
40. The Commission accepts that this complaint had been made
prior to the Commission's decision declaring the application
admissible. The Court has therefore jurisdiction to examine it
(see paragraphs 76-77 below).
II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
41. The Government claimed, as they had before the
Commission, that the applicant's complaints under
Article 6 para. 3 (c) (art. 6-3-c) that he was not permitted to
attend the nullity and appeal hearings before the Supreme Court
should be rejected as inadmissible for non-exhaustion of domestic
remedies by virtue of Articles 26 and 27 para. 3 (art. 26,
art. 27-3) of the Convention.
The Government pointed out that the applicant would have
been able to attend the hearing of the appeals in accordance with
section 296 para. 3 of the Code of Criminal Procedure if he had
made a request to this effect (see paragraph 31 above). However,
he had not done so. In addition, under Austrian law, his
presence at the appeal hearings would have entitled him to
participate in the hearing of the pleas of nullity (see
paragraph 29 above).
42. The Court observes that the Government's arguments on
both points are closely linked to the well-foundedness of the
applicant's complaints under Article 6 para. 3 (c) (art. 6-3-c).
The plea should therefore be joined to the merits.
III. ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6)
43. The applicant alleged various breaches of paragraphs 1,
2 and 3 (b) and (c) of Article 6 (art. 6-1, art. 6-2, art. 6-3-b,
art. 6-3-c) which, in so far as they are relevant, provide:
"1. In the determination ... of any criminal charge
against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
(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;
44. The Court will first examine the applicant's main
complaints under Article 6 para. 1 in conjunction with
paragraph 3 (b) and (c) (art. 6-1, art. 6-3-b, art. 6-3-c).
A. Article 6 para. 1 in conjunction with
paragraph 3 (b) (art. 6-1, art. 6-3-b)
1. Attorney General's position paper
45. The applicant maintained that he only received a copy of
the Attorney General's position paper (croquis) three weeks
before the hearing at a time when the Supreme Court's draft
judgment had already been drawn up and discussed by the Chamber
of the court. If he had been in a position at an earlier stage
of the proceedings to file a reply to the croquis he might have
had some influence on the draft judgment. Moreover, it
transpired that the judgment of the Supreme Court was based
almost word for word on the croquis.
46. The Government pointed out that the applicant had three
weeks in which to formulate his observations for the hearing and
that it was open to his lawyer to inspect the position paper in
the file at the Supreme Court before its official transmission
47. The Commission found that the procedure was not fair in
this respect and that the defence had not been granted "adequate
time and facilities" to prepare and submit its arguments under
conditions which ensured that they could effectively be taken
into account by the Supreme Court. It noted that the document
was used to a large extent as the basis for the judge
rapporteur's draft and that the defence had no opportunity to
comment on it before the oral hearing even though the draft had
been informally discussed among members of the Chamber.
Furthermore, the Supreme Court's judgment did not reflect any of
the defence's submissions on the croquis made during the oral
48. The Court observes that, unlike the situation in
Brandstetter v. Austria (judgment of 28 August 1991, Series A
no. 211, pp. 27-28, paras. 64-69), the croquis of forty-nine
pages was served on counsel on 9 June 1986, some three weeks
before the date fixed for the oral hearing. It considers that
this period afforded the applicant and his lawyer sufficient
opportunity to formulate their reply in time for the oral hearing
of 2 July 1986.
49. It has not been contested by the Government that the
Supreme Court did not reply to the requests of 18 September and
2 October 1985 for the communication to the applicant of the
croquis which had already been received by the Supreme Court on
2 August 1985 (see paragraph 15 above). However it was open to
the applicant's lawyer to request the court for permission to
consult the case file with a view to examining the croquis prior
to its transmission. There is no record of his ever having done
so (ibid.). Had such a request been filed there is no reason to
suppose that leave would not have been granted.
50. Against this background the Court considers that,
although the applicant may have been to some extent disadvantaged
in the preparation of his defence, he nevertheless had "adequate
time and facilities" to formulate his response to the croquis.
Accordingly, there has been no breach of Article 6 para. 1 in
conjunction with paragraph 3 (b) (art. 6-1, art. 6-3-b) in this
2. Refusal to inspect file
51. The applicant also complained under this head that he was
unable to inspect the file in person.
52. The Court, like the Government and the Commission,
considers that this did not give rise to a breach of Article 6
paras. 1 and 3 (b) (art. 6-1, art. 6-3-b). Restriction of the
right to inspect the court file to an accused's lawyer is not
incompatible with the rights of the defence under Article 6
(art. 6) (see the Kamasinski v. Austria judgment of
19 December 1989, Series A no. 168, p. 39, para. 88).
3. Notification of decision concerning appearance at
53. The applicant further submitted that the fact that the
court's decision refusing him permission to attend the hearing
of the nullity pleas was served on his counsel only on the day
of the hearing constituted a breach of Article 6 para. 3 (b)
54. The Government, noting that the applicant's request had
been filed only fourteen days before the hearing, argued inter
alia that no violation of this provision could arise since in
such circumstances both the lawyer and the applicant were
required to prepare themselves for the hearing in any event.
55. The Commission considered that in view of its finding of
a breach of Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c)
no separate issue arose (see paragraph 38 (a) above).
56. The Court observes that there is no indication that the
notification of the Supreme Court's decision on the day of the
hearing unduly hampered the defence in the preparation of its
case. There has therefore been no breach in this regard.
B. Article 6 para. 1 in conjunction with
paragraph 3 (c) (art. 6-1, art. 6-3-c)
57. The applicant maintained that the refusal of leave to be
present at the public hearing of the pleas of nullity and the
appeals against sentence infringed his right to defend himself
in person in violation of paragraphs 1 and 3 (c) of Article 6
(art. 6-1, art. 6-3-c).
58. The Court recalls that Article 6 (art. 6) extends to
nullity and appeal proceedings such as those involved in the
present case. However, the personal attendance of the defendant
does not necessarily take on the same significance for an appeal
or nullity hearing as it does for a trial hearing (see inter alia
the above-mentioned Kamasinski v. Austria judgment, Series A
no. 168, p. 44, para. 106).
Indeed, even where an appeal court has full jurisdiction
to review the case on questions both of fact and of law,
Article 6 (art. 6) does not always require a right to a public
hearing and a fortiori a right to be present in person (see inter
alia the Fejde v. Sweden judgment of 29 October 1991, Series A
no. 212-C, p. 68, para. 31).
59. Regard must be had in assessing this question inter alia
to the special features of the proceedings involved and the
manner in which the defence's interests were presented and
protected before the appellate court, particularly in the light
of the issues to be decided by it (Helmers v. Sweden judgment of
29 October 1991, Series A no. 212-A, p. 15, paras. 31 and 32),
and their importance for the appellant.
In the instant case, the hearing before the Supreme Court
involved both pleas of nullity and appeals against sentence. The
Court will examine the issue in respect of each of these
proceedings in turn.
1. Attendance at the hearing of the pleas of nullity
60. The applicant contended that he had a right to be present
at the hearing of the pleas of nullity since these proceedings
involved not only questions of law but also certain questions of
fact. In his plea of nullity he had submitted that wrong
conclusions on questions of fact had been drawn by the trial
court and that motions for evidence to be taken had been wrongly
dismissed. In particular, the Supreme Court had examined the
diary-sheets submitted by the victim's son and concluded that
they were not of significance for the jury's verdict (see
paragraph 23 above). He further claimed that an inquiry had been
undertaken as regards certain cheques (see paragraph 16 above).
61. For the Government Article 6 (art. 6) does not require
the participation of the accused in hearings of pleas of nullity
since the proceedings only concern questions of law. Moreover,
the reference by the Supreme Court to the diary-sheets was made
only after it had found that there was no basis for the
applicant's procedural complaint as regards the trial court's
refusal to take evidence relating to this material (see
paragraph 23 above).
62. The Commission, while expressing doubt whether Article 6
(art. 6) required the applicant's presence at these proceedings,
did not find it necessary to give an opinion on this point.
63. The Court observes that under Austrian law the Supreme
Court in dealing with nullity proceedings is primarily concerned
with questions of law that arise in regard to the conduct of the
trial and other matters. While the Supreme Court is bound by the
findings of fact made by lower courts, it may be required, as in
the present case, to examine whether a motion to take evidence
has been properly refused by the trial court and whether the
excluded facts might have influenced the jury's verdict.
In the Court's view, taking into consideration that the
applicant was legally represented, neither paragraph 1 nor 3 (c)
of Article 6 (art. 6-1, art. 6-3-c) required his presence at such
proceedings. In particular, it notes that the diary-sheets in
question had been submitted to him before the Supreme Court's
hearing and he was able, through his lawyer, to make submissions
on them in the course of the hearing. Moreover, it has not been
established, as alleged by the applicant, that the Supreme Court
took any steps as regards the cheques in question (see
paragraph 16 above).
It follows that there has been no breach on this point.
64. In the light of this conclusion it is not necessary to
deal with the question reserved in paragraph 42 in so far as it
relates to this complaint.
2. Attendance at the hearing of the appeals against
65. The applicant, supported by the Commission, contended
that his right to defend himself in person was violated by the
Supreme Court's refusal to permit his attendance at the hearing
of the appeals.
66. The Government submitted that the applicant's failure to
request the Supreme Court for leave to attend the hearing of the
appeals constituted an unequivocal waiver of his right in this
respect. It had to be borne in mind that the applicant was a
former judge who was familiar with the relevant legal provisions
and was represented by counsel. Moreover it could not be said,
having regard to the terms of section 296 para. 3 of the Code of
Criminal Procedure (see paragraph 31 above), that his request to
be present at the hearing of the pleas of nullity implicitly
included a request to participate in the hearing of the appeals.
67. The Court observes that the Supreme Court was called upon
in the appeal proceedings to examine whether the applicant's
sentence should be increased from twenty years to life
imprisonment and whether the sentence should be served in a
normal prison instead of a special institution for mentally
deranged offenders. In the event, the Supreme Court answered
both questions in the affirmative. Unlike the jury which had
been unable to establish a motive for the offence, it also found
that the applicant had carried out the murder to cover up his own
"financial misdeeds" (see paragraph 22 above).
These proceedings were thus of crucial importance for the
applicant and involved not only an assessment of his character
and state of mind at the time of the offence but also his motive.
In circumstances such as those of the present case, where
evaluations of this kind were to play such a significant role and
where their outcome could be of major detriment to him, it was
essential to the fairness of the proceedings that he be present
during the hearing of the appeals and afforded the opportunity
to participate in it together with his counsel.
68. It is true that, for reasons which remain unclear, the
applicant failed to make a request in his appeal or counter-
statement to attend the hearing. However, section 296 para. 3
also provides that in the absence of a request he should be
brought before the court "if his personal presence appears
necessary in the interest of justice" (see paragraph 31 above).
The Court considers that, given the gravity of what was
at stake for the applicant, he ought to have been able "to defend
himself in person" as required by Article 6 para. 3 (c)
(art. 6-3-c) and that the State was under a positive duty,
notwithstanding his failure to make a request, to ensure his
presence in court in such circumstances.
69. It follows that there has not been a failure to exhaust
domestic remedies in this regard (see paragraph 42 above).
In sum, the Court finds a breach of Article 6 para. 1 in
conjunction with paragraph 3 (c) (art. 6-1, art. 6-3-c).
C. Preparation of the draft judgment prior to the
Supreme Court's hearing
70. The applicant contended that the preparation and
discussion by members of the Supreme Court of a draft judgment,
prior to the hearing of the case, rendered the proceedings unfair
and in breach of Article 6 para. 1 (art. 6-1).
71. Neither the Commission nor the Government agreed.
72. The Court is not satisfied that the practice in this
respect followed in the present case gave rise to any
infringement of Article 6 para. 1 (art. 6-1). A draft judgment
prepared in advance and then discussed informally by members of
the Chamber need not in any way bind the Supreme Court or
preclude it from amending the draft and reaching a different view
after hearing the parties.
D. Complaints concerning equality of arms
73. The applicant further claimed the following violations of
the principle of equality of arms:
- that the defence was required to introduce its remedies
against the judgment of first instance within short time-limits
whereas no time-limit existed as regards the submission of the
Attorney General's croquis;
- that the Attorney General's office, unlike the defence,
was informed of the identity of the judge rapporteur in breach
of Austrian law and thus knew which Chamber of the Supreme Court
would deal with the case;
- that the Supreme Court's file, including the judge
rapporteur's draft, was allegedly transmitted to the Attorney
General's office and not to the defence.
74. Neither the Government nor the Commission considered that
these complaints disclosed a breach of Article 6 para. 1
(art. 6-1). In particular, the Government emphasised that the
draft judgment could not under Austrian law be communicated to
the Attorney General's office (see paragraph 34 above).
75. The Court notes that it is not in dispute that there is
no time-limit for the submission of the Attorney General's
position paper. However, unlike the defence, the Attorney
General's office is required to familiarise itself with the case
at a later and separate phase of the procedure. Moreover, the
defence was not in any way prejudiced by the difference in this
Secondly, it is not denied by the Government that the
name of the judge rapporteur was wrongfully disclosed to the
Attorney General's office. However, in itself this cannot render
the proceedings unfair.
Finally, the Court notes that there is no evidence
whatsoever that a copy of the draft judgment was forwarded to the
Attorney General's office.
Accordingly, there has been no breach of
Article 6 para. 1 (art. 6-1) in respect of the above matters.
E. Article 6 para. 2 (art. 6-2)
76. The applicant submitted that by imputing guilt of
"financial misdeeds" the Supreme Court had in effect found him
guilty of fraud in violation of the presumption of innocence.
He pointed out that the jury which had heard all the evidence in
the case had been unable to establish a motive on the grounds
that there were "too many possibilities" (see paragraph 11
77. The Court recalls that the applicant had already been
found guilty of murder and that the Supreme Court's remarks
related solely to the question of his motive for the offence.
Moreover, the reference to "financial misdeeds" cannot be
construed as a finding that the applicant was guilty of a
specific offence. In such circumstances no question of a
violation of the presumption of innocence arises.
IV. ALLEGED VIOLATIONS OF ARTICLES 13 AND 14 (art. 13,
78. The applicant also complained that he was the victim of
discrimination contrary to Article 14 in conjunction with
Article 6 (art. 14+6) in that, unlike an accused at liberty, he
had no right to be present in person at the Supreme Court
He further alleged a violation of Article 14 in
conjunction with Article 5 para. 1 (a) (art. 14+5-1-a) on the
grounds that in view of the arbitrary and contradictory character
of the Supreme Court's judgment he was not "lawfully" detained
after conviction by a competent court.
Finally he claimed that he was denied an effective remedy
in respect of his complaints due to the limited scope of the
Supreme Court's power of review.
79. Article 13 (art. 13) reads:
"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
Article 14 (art. 14) reads:
"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."
The relevant part of Article 5 (art. 5) reads:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
80. In view of the Court's finding of a violation concerning
the applicant's absence at the hearing of the appeals (see
paragraph 69 above) it does not consider it necessary to examine
his allegation of a breach of Article 14 in conjunction with
Article 6 (art. 14+6).
81. As regards the two remaining complaints, the Court
observes that, while they were raised before the Commission, they
were not the subject of any written or oral submissions by the
applicant in the proceedings before the Court. In these
circumstances the Court does not consider that these complaints
have been maintained by the applicant. It sees no reason to
examine them ex officio.
V. APPLICATION OF ARTICLE 50 (art. 50)
82. According to 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
83. The applicant has limited his claims to costs and
expenses in respect of two lawyers in relation to the Strasbourg
proceedings. He stated that a second lawyer was required because
of the risk of censorship of his communications with his first
counsel, Dr Weh.
800,000 and 95,256 schillings were claimed respectively
regarding Dr Weh and Dr Mühlgassner in respect of fees and 30,000
and 37,790 schillings for expenses.
84. The Government submitted that the appearance of a second
lawyer to safeguard the applicant's rights before the Strasbourg
institutions was not necessary. They pointed out that the
applicant's correspondence with Dr Weh had not been censored.
They considered that an award of 120,000 schillings for fees
would be a more appropriate sum, taking into account that various
submissions had not been necessary.
85. The Court has doubts as to whether it was necessary in
the present case for the applicant to be represented by two
lawyers. Moreover it has also taken into account the fact that
out of a multiplicity of complaints only one has been found to
be justified. Making an assessment on an equitable basis, it
awards 200,000 schillings in respect of fees and 30,000
schillings for expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins the Government's preliminary objections to the
2. Holds that it is not necessary to decide the Government's
preliminary objection in respect of the applicant's
complaint that he was not present at the hearing of the
pleas of nullity;
3. Dismisses the preliminary objection raised by the
Government in respect of the applicant's complaint that
he was not present at the hearing of the appeals;
4. Holds that there was no violation of Article 6 para. 1
taken in conjunction with Article 6 para. 3 (b)
(art. 6-1, art. 6-3-b);
5. Holds that there was no violation of Article 6 para. 1
taken in conjunction with Article 6 para. 3 (c)
(art. 6-1, art. 6-3-c) as regards the applicant's absence
at the hearing of the pleas of nullity;
6. Holds that there was a violation of Article 6 para. 1
taken in conjunction with Article 6 para. 3 (c)
(art. 6-1, art. 6-3-c) as regards the applicant's absence
at the hearing of the appeals;
7. Holds that there was no violation of Article 6 para. 1
(art. 6-1) in respect of the remaining complaints under
8. Holds that there was no violation of Article 6 para. 2
9. Holds that it is not necessary to examine the applicant's
complaints under Articles 13 and 14 (art. 13, art. 14);
10. Holds that the respondent State is to pay within three
months to the applicant 230,000 (two hundred and thirty
thousand) Austrian schillings in respect of costs and
11. Dismisses the remainder of the claim for just
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
21 September 1993.
Signed: Rolv RYSSDAL
Signed: Marc-André EISSEN