European Court of Human Rights

THIRD SECTION

 

DECISION

 

AS TO THE ADMISSIBILITY OF

 

Application no. 27618/95
by Gabor PESTI
against Austria

 

Application no. 27619/95

by Helmut FRODL

against Austria

 

            The European Court of Human Rights (Third Section) sitting on 18 January 2000 as a Chamber composed of

 

            Sir   Nicolas Bratza, President,
            Mr   J.-P. Costa,
            Mrs F. Tulkens,
            Mr   W. Fuhrmann,
            Mr   K. Jungwiert,
            Mr   K. Traja,
            Mr   M. Ugrekhelidze, judges,

and      Mrs S. Dollé, Section Registrar;

 

            Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

 

            Having regard to the application introduced on 13 April 1995 by Gabor Pesti against Austria and registered on 14 June 1995 under file no. 27618/95;

 

            Having regard to the application introduced on 10 April 1995 by Helmut Frodl against Austria and registered on 14 June 1995 under file no. 27619/95;

 

            Having regard to the report provided for in Rule 49 of the Rules of Court;

 

            Having deliberated;

 

            Decides as follows:

THE FACTS

 

            The first applicant, in Application No. 27618/95, is a citizen of both Austria and Hungary, born in 1947. He is presently detained at a prison in Graz. Before the Court he is represented by Mr. K.D. Zessin, a lawyer practising in Vienna, and by Mr. B. Orosz, a lawyer practising in Budapest.

 

            The second applicant, in Application No. 27619/95, is an Austrian citizen, born in 1957. He is presently detained at a prison in Garsten. Before the Court he is represented by Mr. N. Lehner, a lawyer practising in Vienna.

 

A.        Particular circumstances of the case

 

            The facts of the case, as submitted by the applicants, may be summarised as follows.

 

            On 14 June 1992 the applicants were arrested and subsequently remanded in custody on suspicion of having murdered F.K. who had recently disappeared. F.K. had been, like the second applicant, a film director and producer. He had been a competitor of the second applicant and F.K. had, in a letter addressed to the Austrian Federal Ministry of Social Affairs, accused the second applicant of having bribed public officials in order to be awarded film production contracts by that ministry. In early June 1992 parts of a human body were discovered in Budapest. This body was subsequently identified as being F.K. Before their arrest, the applicants were repeatedly questioned by the police and the investigating judge. The second applicant confessed to having killed F.K. in Budapest and gave further details of the circumstances. The first applicant stated that, until the last moment, he had not been aware of any plans to kill F.K. but had later helped to dispose of the body.

 

            On 6 December 1993 the trial against the applicants, both charged with murder, commenced before the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen), sitting as an Assize Court (Geschworenengericht). Both applicants pleaded “not guilty”.

 

            At the hearing the applicants were confronted with the second applicant's confession to the police and the investigating judge. According to that confession, both applicants had planned to lure F.K to Budapest with the help of B.N., a young woman. B.N., with whom F.K. had become friendly, invited him to visit her uncle in Budapest. The first applicant played the uncle's role. Once F.K. arrived at the apartment of this uncle, the first applicant served him refreshments mixed with a sleeping drug. Thereupon the second applicant shot him and cut the body up, helped by the first applicant. For that purpose they had brought with them an electric saw, a cutter, plastic bags and a pistol. The second applicant also stated that he had committed these acts under the influence of the first applicant.

 

            When heard by the court, the first applicant stated that he had not been involved in the plot and had thought that they were to meet F.K. and other film-makers in the apartment in Budapest in order to discuss film projects. As F.K. had been unwilling to meet the second applicant, they had had to use unusual methods to persuade him come to Budapest and, therefore, had used B.N. as a decoy, and he had pretended to be her uncle. He had not seen how F.K. had been shot, as he had been in the kitchen when he suddenly heard a noise. He returned to the room where F.K. was lying on the sofa. The second applicant said that F.K. was dead. The second applicant then left the room, still holding a gun in his hand, whereupon the first applicant realised that the second applicant had shot F.K. He had not helped the second applicant undress or cut up the victim. Instead he went to the neighbours to inform them that there might be some noise due to construction works. On his return, he saw several black bags outside the bathroom. The second applicant took them to the car and the first applicant assisted him in finding containers, in order to deposit the bags. Against his advice to sell the pistol, the second applicant had thrown it into the river. The following day they cleaned the apartment and removed the bed. The second applicant elaborated a plan that they should pretend that F.K. was still alive. The first applicant denied having given any medicine or sleeping drugs to the victim, or having seen a third person at the apartment. He said that he had fallen asleep soon after the victim had arrived, and for this reason had not been present all the time. He claimed that he had assisted the second applicant after the killing because he was his friend and because he feared him.

 

            The second applicant withdrew his earlier confession and stated that neither he nor the second applicant had killed F.K. A third man had been present in the apartment, whose name was Boris P., a Russian who had connections with the KGB. Boris P. had been cheated by J.G., another film-maker, and had hoped that the victim had information about that person. He further claimed that on the day in question he had been completely drunk and had stayed alone in a separate room. He had only heard a fight going on in the room where the victim was. The fight had taken place between the victim and Boris P. In the course of this fight Boris P. must have shot F.K. He did not know how the body had been sawn into pieces, or what had happened to his pistol. He had lured F.K. to Budapest in order to play a trick on him, since F.K. had tried to ruin his reputation at the ministry. He had intended to hide cocaine in F.K.'s car and to call the customs authorities. It had been Boris P. who had brought him the cocaine and some other medicine in order to persuade F.K. to talk about J.G.'s whereabouts.

 

            Asked by the Presiding Judge why he had not mentioned Boris P. earlier, but only when he had been questioned by the investigating judge the last time, the second applicant stated that he had promised Boris P. to protect him for 6 months.

 

            The Presiding Judge questioned the second applicant in detail on how he had been able to give details about the crime in his confession to the police although he had allegedly not seen anything. In reply the second applicant claimed that he had been able to reconstruct the crime on the basis of the questions asked by the police and the pictures they had shown him. When he made his first false confession, he had felt he was in a state of unreality, believing that he was himself a police officer. He had therefore enjoyed developing his confession on the basis of the police questions. The second applicant admitted that, after F.K. had been killed, he and the first applicant had planned to pretend that F.K. was still alive.

 

            On the following six days of the trial, the court heard several witnesses, namely neighbours to the apartment in Budapest, an employee and a friend of the victim, the bank agent, the victim's aunt, the secretary of the first applicant and a friend of the first applicant. The wife of the second applicant refused to give evidence. Moreover, the court heard the police officers who were involved in the preliminary investigations and questioned them, in particular, about the confession of the second applicant and the manner in which it was made. Then the court heard five court experts in, inter alia, forensic medicine and psychiatry.

 

            The court rejected the request to hear B.N. in person, but read out her statement made during the preliminary proceedings. Relying on medical certificates and on the report of one of the medical experts present at the trial, the court concluded that to summon and question B.N. would create a risk for her health, since she lived now in Spain and was suffering from multiple sclerosis, which meant she had to avoid unnecessary effort and excitement.

 

            On 22 December 1993 the Assize Court convicted the second applicant of murder and sentenced him to life imprisonment. The first applicant was convicted of aiding and abetting and sentenced to 20 years' imprisonment. The jury found that, according to their common plan, the second applicant had killed F.K., while the first applicant had assisted in the murder by giving sleeping drugs to the victim.

 

            On 16 March 1994 the applicants filed a common request for rectification of the transcript of the trial (Protokollberichtigungsantrag). They argued that the Presiding Judge had made several mocking remarks and gestures which had not been recorded in the transcript but which could have influenced the jury. Defence counsel referred to their private notes, according to which the Presiding Judge had expressed doubts in respect of the existence of Boris P. From the third day of the trial, the Presiding Judge had daily requested the defence counsel of the second applicant to provide the name of the witness who would testify that one of the jurors was biased, as claimed by the defence. Moreover, the Presiding Judge had interrupted both applicants several times, especially at the end of the trial, when they wanted to give their last speech to the jury.

 

            On 22 April 1994 the Presiding Judge rejected the request for rectification of the transcripts. He stated that he and the court clerk responsible for the record (Schriftführerin) had compared the transcript of the hearing with the stenographic notes and had found that the transcript corresponded to those notes. Contrary to the private notes and the applicants' submissions, the Presiding Judge had announced the names of the jurors and their substitutes, and had shown where they were seated. In respect of the conduct of the defence counsel of the second applicant, N.L., as well as that of the Presiding Judge, the transcript was accurate.

 

            It transpires from the transcript of the trial, which covers some 280 pages, that the relationship between defence counsel, N.L., and the Presiding Judge was rather tense and characterised by mutual accusations. The following events are mentioned in the transcript:

 

            At the hearing on 9 December 1993, N.L. challenged one juror for bias. He claimed that he had been informed that this juror had stated after the hearing on 7 December that the applicants should be sentenced to life imprisonment. The juror denied that she had made such a statement. N.L. said that a letter sent to the court containing the name of the "informant" had been provided by a third person.

 

            In the hearing on 13 December 1993, the Presiding Judge asked N.L. to provide him with the name of the informant, so that the court could decide the defence's challenge of the juror for bias. Otherwise he warned that he would inform the Bar Association and the Public Prosecutor's Office to take steps against counsel for having defamed a juror.

 

            On 15 December 1993 (the fifth day of the trial) counsel gave the Presiding Judge a copy of a criminal information he had filed with the Public Prosecutor's Office concerning the conduct of the Presiding Judge. At the same time he challenged the Presiding Judge for bias. He submitted that the Presiding Judge lacked the necessary objectivity and tried to influence the jury by means of gestures, facial expressions and ironical, cynical remarks. Moreover, he complained that the Presiding Judge exercised unnecessary pressure on him, since he had repeatedly asked for the name of the informant. In this context he also accused the Presiding Judge of making propaganda (Stimmungsmache) in the courtroom.

 

            At the hearing on 17 December 1993, the bench of the Assize Court (Schwurgerichtshof) dismissed the second applicant's motion challenging the Presiding Judge for bias, finding that the Presiding Judge's possible smiles (allfälliges Lächeln) at certain statements did not influence the jurors, who were responsible (mündige) citizens. The court denied that any propaganda to the press or the public had occurred. That day, the defence counsel of the first applicant requested the hearing of certain journalists with possible knowledge of the juror's bias. However, he did not know the name of the person who had, in turn, informed the journalists. The second applicant joined the request.

 

            At the hearing on 22 December 1993, the Assize Court dismissed the motion challenging a juror for bias. It found that it had not been proved that the juror had made the contested statement. Moreover, the defence had not provided the court with the name of the person who had allegedly heard the partial statement. The court further dismissed the request to hear the journalists since they could not give any direct testimony themselves, having only spoken on the telephone to an anonymous informant.

 

            On an unspecified day the first applicant filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against sentence (Berufung). He complained that at the trial it had not been possible for him to understand which member of the jury was a full member and which a substitute member, that the Presiding Judge had failed to swear in two members of the jury by hand-shake and that two members of the jury had been biased. He further complained that the Presiding Judge had interrupted him when he had addressed his last words to the jury, and that evidence requested by him had not been obtained by the court. He also complained that the verdict of the jury had been wrong because the submissions of the second applicant had been implausible. He argued that further questions should have been put to the jury and that Hungarian law, which was more lenient in relation to the offence of which he was accused, should have been applied.

 

            On 16 March 1994 the second applicant filed a plea of nullity and an appeal against sentence. He complained that the Assize Court had refused to take the evidence requested by him and had dismissed his challenge for bias of the Presiding Judge, that further questions should have been put to the jury and that there were contradictions between the verdict and the contents of the case-file.

 

            On 13 October 1994 the Supreme Court dismissed the pleas of nullity and appeals against sentence. It confirmed the sentence in respect of the second applicant and increased the sentence of the first applicant to life imprisonment. The decision was served on the applicants on 20 December 1994.

 

            As regards the first applicant's complaint as to the membership of the jury, the Supreme Court noted that according to the transcripts of the trial the Presiding Judge had called up each member of the jury by name and assigned a fixed place to him or her. It had therefore been clear which juror was sitting as a full member and which juror was a substitute. The jury was consequently not wrongly composed as claimed by the applicant. The Presiding Judge's failure to swear in by handshake the members of the jury who had no religious belief, might have been a procedural mistake but did not constitute a ground of nullity.

 

            As regards the first applicant's complaint that he was denied the right to the last word, the Supreme Court noted that these allegations were not confirmed by the transcript of the trial. In any event, the applicant had failed to respect the procedural requirements for raising this ground of nullity because he should have requested an interim decision on this issue.

 

            The Supreme Court also held that the Assize Court had acted correctly when it dismissed the first applicant's requests for the taking of evidence. As regards his request to hear his urologist (sic) on whether the first applicant had undergone a change in his personality after a car accident in 1987, it found that two expert psychiatric reports had been obtained which were sufficient. As regards the request to hear journalists about a juror's alleged bias, the Supreme Court noted they could not give any direct testimony themselves, having only spoken on the telephone to an anonymous informant. Even if the Assize Court had heard the journalists, this would not have proved that the information given by the anonymous person had been correct. As regards the hearing of B.N., the Supreme Court referred to its reasoning on the second applicant's plea of nullity (below). As regards the first applicant's complaint that Hungarian law had not been applied, the Supreme Court found that in the present case Austrian law was applicable, since it concerned an offence committed abroad by an Austrian citizen against another Austrian citizen.

 

            As regards the second applicant's plea of nullity, the Supreme Court found that the complaint about the alleged bias of the Presiding Judge was unfounded. The Supreme Court noted that the request for rectification of the transcripts had been dismissed and the applicant's complaints could not therefore be examined on the basis of the allegations made in the request for rectification. The Supreme Court stated that a judge is not prevented from forming his own opinion about the guilt of the accused before the end of the trial. Only if the judge maintains this opinion despite evidence to the contrary could he or she be deemed biased. In particular, in the case of spontaneous reactions (like gestures and changing facial expressions), the judge's lack of impartiality must be shown by additional concrete indications. The same considerations applied to remarks by which a judge expressed his sceptical attitude vis-à-vis a submission. A judge is not prevented from showing such an attitude, since a judge also indicates his attitude when referring an accused or witnesses to contradictions in or the improbability of their statements. Since the second applicant had not submitted any specific circumstances on which an objective observer could doubt the impartiality of the Presiding Judge, there was no infringement of the applicant's defence rights.

 

            As regards the complaint about the failure of the Assize Court to take the evidence requested by the second applicant, the Supreme Court found that the Assize Court had acted correctly when rejecting these requests. B.N. had not been present when the offence had been committed and had always claimed that she had not been involved in the applicants' plans. It was therefore not necessary to hear her on the question whether there had been any indication that F.K. should be killed in Budapest. Moreover, a medical expert had confirmed that appearing before the court would involve a danger to her health, as she was suffering from a serious illness. Given that B.N. was living in Spain, the Austrian courts could not compel her to appear at the trial.

COMPLAINTS

 

            The applicants raise numerous complaints about their conviction and the proceedings leading thereto. They invoke Articles 6, 7 and 8 of the Convention, and Article 2 of Protocol No. 7.

 

            Both applicants complain under Article 6 that the Presiding Judge was biased against them and had tried to influence the jury by making cynical remarks and gestures; that the criminal proceedings had been unfair, because the Presiding Judge dismissed their request for rectification of the transcript of the trial, consequently the judge's conduct was not correctly and sufficiently documented; that they did not have a hearing before an impartial and independent tribunal because some of the jurors were not sworn in by handshake as provided for by law; that several requests for the taking of evidence had been rejected by the Assize Court; and that the jury had been influenced by a press campaign conducted against them and because after their arrest a police officer who had conducted the investigations in the case had announced to the press that the murderers had been arrested.

 

            They further complain that their rights under Article 8 § 1 of the Convention have been violated because at the beginning of the trial journalists were given the opportunity to take photographs of them in the courtroom.

 

            They also complain that the review of their convictions under Austrian law was insufficient for the purposes of Article 2 of Protocol No. 7 because the Supreme Court was prevented from re-examining the question of their guilt and was only competent to examine whether procedural defects had occurred.

 

            In addition, the first applicant alone complains under Article 6 of the Convention that he was not tried by a tribunal established by law because it had not been possible for him to distinguish the full members of the jury from their substitutes; that the conviction was based on insufficient and mainly indirect evidence and that he had no opportunity to question the second applicant concerning his confession or the police officers concerned; and that his defence rights had been violated because at the end of the trial the Presiding Judge stopped him when he had made use of his right to the last word.

 

            Invoking Article 7 of the Convention, the first applicant also complains that he was punished under Austrian law although Hungarian law would have been more favourable to him.

 

            The second applicant alone complains in addition that the proceedings were unfair in that the Presiding Judge who had been challenged for bias had taken part in the decision on that motion.

 

 

THE LAW

 

1.         The Court finds that because of the similarity of the factual and legal issues involved, both applicants being convicted in the same set of criminal proceedings and their cases raising similar complaints, it is appropriate to join the applications.

 

2.         The applicants complain in various respects about their conviction and the proceedings leading thereto.

 

In the present case the question arises, whether the applicants have complied with the requirements under Article 35 § 1 of the Convention to exhaust domestic remedies in respect of all their complaints.   The Court recalls that in order to have exhausted domestic remedies an applicant must have expressly raised before the national authorities the complaint raised before the Court. Moreover, domestic remedies have not been exhausted when an appeal is not admitted because of a procedural mistake by the applicant (see, inter alia, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, §§ 65-66).

 

       As regards this applicant's complaint that he was interrupted by the Presiding Judge when he exercised his right to the last word, the Court observes that the Supreme Court, in its judgment of 13 October 1994, found that he had failed to request an interim decision on this issue and, therefore, had not submitted this complaint in accordance with the relevant procedural rules.

 

The Court therefore finds that, in respect of this complaint, the first applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. It follows that this part of the case is to be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

 

3.         The applicants complain about their conviction and the alleged unfairness of the proceedings leading thereto. They rely on Article 6 of the Convention which, insofar as relevant, reads as follows:

 

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...

 

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

 

3.  Everyone charged with a criminal offence has the following minimum rights:

 

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

 

(b)  to have adequate time and facilities for the preparation of his defence;

 

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

 

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

 

The Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (cf. the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in Reports 1999).

 

It seems, in the Court's view, appropriate to look at the applicants' complaints about the alleged unfairness of the criminal proceedings from the point of view of paragraphs 1 and 3 of Article 6 taken together, especially as the guarantees of paragraph 3 represent specific aspects of the right to a fair trial set forth in paragraph 1 of the Convention (see, for example, the Edwards v. the United Kingdom judgement of 16 December 1992, Series A no. 247-B, p. 34, § 33

 

a.         The applicants submit that they did not have a hearing before an independent and impartial tribunal established by law because some of the jurors were not sworn in by handshake as provided for by law. Moreover, the first applicant complains that it had not been possible for him to distinguish the full members of the jury from their substitutes.

 

However, the Court observes that the Supreme Court found that it had been clear which member of the jury was sitting as a full member and which was a substitute. It further found that the Presiding Judge's failure to swear in by handshake the members of the jury who had no religious belief might have been a procedural mistake but did not constitute a ground of nullity. Having regard to these findings, the Court considers that there is no indication that the jury was not established and composed in accordance with the rules of procedure. As regards the Presiding Judge's failure to swear in certain members of the jury by handshake, the first applicant has given no indication why this procedural mistake could have adversely influenced the proceedings against him. Therefore the Court cannot find that this procedural mistake infringed the first applicant's rights under Article 6.

 

b.         The applicants submit that the Assize Court refused to hear witnesses or take the evidence of the witness B.N. They further submit that the Assize Court refused to hear an expert as to whether, following a car accident, the first applicant had undergone a change of personality or to hear certain journalists concerning the alleged bias of a juror.

 

            The Court recalls, however, that as a general rule, it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d) leaves it to them, in principle, to assess whether it is appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system. It does not require the attendance and examination of every witness on the accused's behalf (see the Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89, and the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention (Bricmont v. Belgium judgment, loc.cit). However, the complete silence in a judgment as to why the court refused to hear a witness for the defence is not consistent with the concept of a fair trial envisaged by Article 6 of the Convention (see the Vidal v. Belgium judgment, loc. cit).

 

            The Court observes that the Assize Court rejected the applicants' requests for evidence, explaining why such evidence was either irrelevant, unnecessary or unavailable. The Supreme Court carefully examined the explanations and found that the Assize Court had acted correctly in its refusal.

 

            The Court finds no indication that the refusal to take all the evidence requested by the applicants was incompatible with Article 6, or that thereby the applicants' rights of the defence were unduly restricted.

 

c.         The first applicant submits that his conviction was based on insufficient and mainly indirect evidence, and that he had no opportunity to question the second applicant concerning his confession or the police officers to whom he confessed. However, the Court notes that the confession of the second applicant was read out in the course of the trial and the police officer dealing with that confession was questioned at length by all parties about the circumstances and the manner in which the second applicant had made the confession.

 

Accordingly, the Court finds that the first applicant has failed to substantiate his allegations in this respect. There is no indication that the first applicant, represented by defence counsel, could not properly exercise his defence rights.

 

d.         The applicants complain under Article 6 § 1 of the Convention that the Presiding Judge dismissed their request for the rectification of the transcripts of the trial. Consequently, the Presiding Judge's conduct was not correctly and sufficiently documented.

 

The Court notes that the applicants filed a common request for rectification of the transcript of the trial which had, however, been dismissed by the Presiding Judge after he had checked the accuracy of the trial transcripts together with the keeper of the court record. The Presiding Judge found that the transcripts of the trial had been established in accordance with the relevant rules of procedure and were correct.

 

The Court recalls that Article 6 cannot be said to require the review of the court transcripts of the trial by a Court of Appeal, or the establishment of a full verbatim record of the first instance proceedings. Furthermore, the verification of the accuracy of the transcript of a trial by a court's registry and, in the present case, in tandem with the Presiding Judge, does not of itself disclose unfairness (cf mutatis mutandis the Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, pp. 27-28, § 71).

 

            The Court notes that the transcript of the present trial is voluminous and detailed, covering some 280 pages. It observes that, if the applicants or their lawyers had had the impression that certain remarks made by the Presiding Judge were of particular importance to the proceedings or for a subsequent plea of nullity, they would have had the possibility to request the Assize Court to record them verbatim in the trial transcript. It does not appear that the applicants made such requests at the trial or that such requests were rejected by the Assize Court. In these circumstances, the Court cannot find that the refusal of the applicants' request for the rectification of the transcripts of the trial infringed their defence rights under Article 6 of the Convention.

 

e.         The applicants complain under Article 6 of Convention that the Presiding Judge was biased against them and tried to influence the jury by making cynical remarks and gestures. Furthermore, the second applicant complains that the Presiding Judge who had been challenged for bias took part in the decision on that motion.

 

The Court recalls that the existence of impartiality for the purpose of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered sufficient guarantees to exclude any legitimate doubt in this respect. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary. As to the objective test, it must be determined whether, quite apart from the judge's conduct, there are ascertainable facts which may be of a certain importance. In this context even appearances may be of importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as the criminal proceedings are concerned, in the accused (see the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, §§ 25 et seq.).

 

Having regard to the above findings regarding the applicants' request for the rectification of the trial transcript, the Court finds that the factual basis for the examination of this complaint is the official transcript.

 

According to that record, the atmosphere in the court room as well as the relationship between the defence counsel and the Presiding Judge were tense. It appears also from the transcript that the Presiding Judge had indeed smiled at several statements by the applicants. On 17 December 1993 the three judges of the Assize Court dismissed the second applicant's motion challenging the Presiding Judge for bias, finding that such smiles did not influence the jurors who were responsible citizens. The Supreme Court considered that spontaneous reactions (like gestures and changing facial expressions) were inconsequential, and that additional indications showing the judge's lack of impartiality were required. It dismissed the second applicant's plea of nullity, finding that he had not submitted any specific circumstances on which an objective observer could doubt the impartiality of the judge.

 

The Court recalls that, as regards a judge's impartiality, what is decisive are not the subjective apprehensions of the suspect, however understandable, but whether in the particular circumstances of the case his fears could be held to be objectively justified (see the Nortier v. the Netherlands judgment of 24 August 1993, Series A Vol. 267, p. 15, § 33). Even if the conduct of the Presiding Judge in the present case was occasionally open to criticism, in the light of the proceedings as a whole and the specific circumstances of the case, the Court finds that the second applicant's submissions are not sufficient to cast doubt on the personal impartiality of the Presiding Judge.

 

As regards the complaint that the Presiding Judge had taken part in the decision on the motion challenging him for bias, the Court observes that the second applicant filed a plea of nullity in this respect with the Supreme Court and that the Supreme Court confirmed the decision of the Assize Court. This review was sufficient to rectify any potential errors.

 

The Court therefore finds that there is no appearance of a violation of the second applicant's rights under Article 6 of the Convention in this respect.

 

e.         The applicants submit that the jury was influenced by a press campaign conducted against them, because after their arrest a police officer who had conducted the investigations in the case had announced to the press that the murderers had been arrested.

 

The Court recalls that in certain cases a virulent press campaign can be prejudicial to the fairness of a trial and involve the State's responsibility (No. 10857/84, Dec. 15.7.86, D.R. 48, p. 144 with further references).   However, the Court finds that in the present case the applicants have failed to substantiate that the reporting in the media was more than the inevitable publicity connected with the investigation and prosecution of this sort of crime or that the officer did actually make such a press statement. The applicants' submissions do not, therefore, disclose any appearance of a violation of the presumption of innocence which could have had repercussions on their right to a fair trial.

 

            It follows that this part of the application concerning the applicants' various complaints under Article 6 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected in accordance with Article 35 § 4.

 

4.         The applicants complain that the review of their convictions under Austrian law was insufficient for the purposes of Article 2 of Protocol No. 7 because the Supreme Court was prevented from re-examining the question of their guilt and was only competent to examine whether procedural defects had occurred.

 

Article 2 of Protocol No. 7, insofar as relevant, reads as follows:

 

“1.  Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”

 

The Court recalls that the Contracting States may limit the scope of the review by a higher tribunal by virtue of the reference in paragraph 1 of this Article to national law. In several Member States of the Council of Europe such a review is limited to questions of law or may require the person wishing to appeal to apply for leave to do so (see No. 19028/91, Dec. 9.9.92, D.R. 73, pp. 239, 243).

 

The Court observes that the applicants could and did file a plea of nullity with the Supreme Court in which they complained about procedural defects in their trial. Furthermore, they lodged an appeal against sentence which was also examined by the Supreme Court. The Court therefore finds that the review of the applicants' conviction by the Supreme Court was sufficient for the purposes of Article 2 of Protocol No. 7. Accordingly there is no appearance of a violation of that provision.

 

            It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

 

5.         The first applicant complains that he has been punished under Austrian law although Hungarian law would have been more favourable to him. He relies on Article 7 § 1 of the Convention which reads as follows:

 

“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

 

            In the light of all the material in its possession, the Court finds no evidence whatsoever that the first applicant was convicted of an offence which did not constitute a criminal offence under national or international law at the time it was committed. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

 

6.         The applicants complain that their rights under Article 8 of the Convention have been violated because, at the beginning of the trial, journalists were allowed to photograph them in the court room.

 

            Article 8 of the Convention which reads as follows:

 

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

 

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

      

However, having regard to the public interest in being informed about serious criminal proceedings and the principle of publicity of court proceedings, the Court cannot find that the decision of the Austrian authorities to allow the press to photograph the applicants, in the circumstances of the case, showed a lack of respect for the applicants' rights under Article 8 of the Convention.

 

            It follows that also this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

 

            For these reasons, the Court, unanimously,

 

DECIDES TO JOIN the applications;

 

DECLARES THE APPLICATIONS INADMISSIBLE.

 

 

 

 

             S. Dollé                                                                                                   N. Bratza
            Registrar                                                                                                   President