CASE OF KREMZOW v. AUSTRIA
Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 6-1+6-3-b;No violation of Art. 6-1+6-3-c (pleas of nullity);Violation of Art. 6-1+6-3-c (appeals);No violation of Art. 6-1;No violation of Art. 6-2;Not necessary to examine Art. 14+6;Not necessary to examine Art. 14+5-1-a;Not necessary to examine Art. 13;Costs and expenses partial award - Convention proceedings
C. Russo;John Freeland;R. Pekkanen
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 deranged offenders. 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. 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 allegation. 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 possibilities". 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. 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. 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). 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 Court. The applicant maintains that the Supreme Court carried out additional investigations concerning certain forged cheques. This, however, is denied by the Government. 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 diary-sheets. 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. 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. 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. 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. "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’ 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 verdict". 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. 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. 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 justice." 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 the parties. 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 cases. (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 draft decision. ... (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).