CASE OF POBORNIKOFF v. AUSTRIA
No violation of Art. 6-1 as regards the plea of nullity;Violation of Art. 6-1 as regards the appeal against sentence
6. On 8 March 1993 the Public Prosecutor's Office at the Feldkirch Regional Court (Landesgericht) filed an indictment charging the applicant with murder. It was alleged that the applicant, in December 1991, had killed his wife and had then buried her decapitated corpse in a field where it had been discovered in May 1992. It was further alleged that he had had a mistress, and had run into financial difficulties as he had rented and furnished an apartment for her and had maintained her, whereas his wife, who had opposed a divorce, had owned the spouses' house and a collection of jewellery of considerable value. In these and the trial proceedings the applicant was represented by official counsel, Mr. A. 7. On 1 October 1993 the Feldkirch Regional Court, sitting as a Court of Assizes (Geschworenengericht), gave judgment. The jury found the applicant guilty of murder. The court, sitting with the jury, sentenced him to life imprisonment. It considered as aggravating circumstances that the applicant had acted for particularly base motives and had acted cruelly. It found that there were no mitigating circumstances. 8. On 2 November 1993 the applicant, still represented by Mr. A., filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). In his plea of nullity he complained about the composition of the court, the court's failure to put alternative questions to the jury and about the lack of reasons for the jury's verdict. He also submitted that there was no factual basis for finding him guilty. In his appeal he complained in particular that the Regional Court's judgment did not give sufficient reasons for the sentence. As to the aggravating circumstances, it was not clear which motives had been established and deemed particularly base. Nor did the judgment mention any facts which would allow the conclusion that he had acted in a cruel manner. As to possible mitigating circumstances, the applicant complained that the Regional Court had failed to take his advanced age and lack of prior convictions into account. The applicant did not request to attend the hearing before the Supreme Court. 9. On 21 December 1993 the Supreme Court (Oberster Gerichtshof) fixed the hearing date for the applicant's plea of nullity and his appeal for 27 January 1994. The applicant received a notification, which stated that his counsel would be summoned to the hearing. As to the hearing of the plea of nullity, the notification informed him that he, being detained, could only appear through his counsel. As to the hearing of the appeal, he would not be brought to the court as the conditions of S. 296 § 3 of the Code of Criminal Procedure (Strafprozeßordung) were not fulfilled. At an unspecified date in the middle of January 1994, the applicant was informed by the Vienna Bar Association that for the purpose of his representation at the hearing before the Supreme Court a new official defence counsel, Mr K., had been appointed as Mr A. would be unable to attend. 10. On 27 January 1994 the Supreme Court, after having held a hearing in the absence of the applicant but in the presence of his new official defence counsel, Mr. K., rejected his plea of nullity as well as his appeal. As regards the appeal, the Court found that the applicant had rightly claimed as a mitigating circumstance that he had no prior convictions. Furthermore, cruelty had not been factually established as an aggravating circumstance. However, there was evidential support for the conclusion that the applicant had acted for particularly base motives. Attaching particular weight to this aggravating circumstance, the Supreme Court found that - notwithstanding the aforementioned deficiencies - the sentence of life imprisonment was commensurate with the applicant's guilt. 11. The first-instance judgment of an assize court may be challenged by a plea of nullity to the Supreme Court on the specific grounds enumerated in section 345 § 1 of the Code of Criminal Procedure. The Supreme Court's task is mainly to control the acts of the bench and the presiding judge of the assize court. Its examination includes whether the trial has been conducted in a manner which complies with fundamental procedural principles, whether the right questions have been put and the correct 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. The Supreme Court supervises the correct application of the criminal law, but in so doing is bound by the jury's findings of fact. 11. In certain cases the Supreme Court may reject a plea of nullity without a public hearing (section 285 (c) of the Code of Criminal Procedure). In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence. 12. As regards the hearing on a plea of nullity, section 286 of the Code of Criminal Procedure 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. ...” 13. Section 344 of the Code of Criminal Procedure extends these rules to nullity pleas arising out of jury trials. 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. 14. The sentence as such may 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. 15. As regards the personal appearance of the accused at a public appeal hearing, section 296 § 3, second sentence, of the Code of Criminal Procedure provides: “An accused who is detained shall always be summoned and 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 interests of justice.”