CASE OF MICHAEL EDWARD COOKE v. AUSTRIA
Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1+6-3-c;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
6. In the early evening of 10 March 1993 the applicant was arrested at Alpbach, Austria, on suspicion of having killed, shortly before, his friend Ms. W. with whom he had gone to Austria on holiday. 7. On 17 November 1993 the applicant's trial commenced before a Court of Assizes (Geschwornengericht) of the Innsbruck Regional Court (Landesgericht), sitting with a jury. The applicant was assisted by his official defence counsel Mr. P. An interpreter was present. At the hearing, the court heard the applicant's statements, the testimony of several witnesses and the explanations of the psychiatric experts Professor P. and Dr. U. Several requests for the taking of further evidence, inter alia as to the victim's personality and behaviour in the past, the applicant's criminal responsibility and his state of mind following the offence, were dismissed. 8. At the end of the hearing, the court put five questions to the jury: a first main question related to the offence of murder, three subsidiary questions concerned the offences of unpremeditated homicide, intentionally inflicted grievous bodily harm resulting in death and grievous bodily harm resulting in death, respectively, and a fifth main question about the applicant's criminal responsibility. The court's directions to the jury covered the jury's duties and the general legal notions of intent and negligence. As regards the questions, the jury was inter alia directed that the offence of murder (Mord) consisted in the intentional killing of a human being and that premeditated homicide (Totschlag) was the intentional killing of a human being in a comprehensible state of emotion (in einer allgemein begreiflichen heftigen Gemütsbewegung). 9. On 18 November 1993 the jury, by a unanimous verdict, found the applicant guilty of murder. The jury also unanimously found that the applicant was criminally responsible. According to the record of their deliberations, the jury relied in particular on the testimony of the hotel owner, as well as on the expert opinion of Professor P. 10. The Court sentenced the applicant to twenty years' imprisonment. In fixing the sentence, the Court considered as a mitigating circumstance the applicant's diminished responsibility (verminderte Dispositionsfähigkeit), although his offence had not been committed upon provocation and did not obviously contradict his previous behaviour. Moreover, he had not made a repentant confession (reumütiges Geständnis), and his statements regarding the offence had not essentially contributed to the establishment of the truth. 11. The applicant, assisted by his official defence counsel Mr. P., filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof), challenging the order of questions put to the jury, the dismissal of his requests for the taking of further evidence, as well as the conclusiveness of the findings of the jury. He further lodged an appeal (Berufung) complaining about the severity of the sentence, referring to further mitigating circumstances such as his previous reputable life, his feelings of regret and repentance and his emotional state at the time of the offence. 12. The Public Prosecutor's Office (Staatsanwaltschaft) also appealed against the sentence, requesting that a life sentence be imposed. The Office considered that the fact that the applicant's responsibility had been diminished at the time of the offence could not be regarded as a mitigating factor. Rather it showed the applicant's particular dangerousness and aggressiveness towards women intending to terminate their relations with him. 13. On 26 January 1994 the Supreme Court issued a summons for the hearing on the plea of nullity and the appeals, indicating that, at the hearing on the plea of nullity, the applicant, being incarcerated, could only appear through his official defence counsel and that, at the hearing of the appeals, he would not be brought to court as the conditions of section 296 § 3 of the Code of Criminal Procedure were not satisfied. 14. On 3 February 1994 the Vienna Bar Association, upon the request of the senior partner of counsel Mr. P., appointed Mr. S. as the applicant's official defence counsel for the purposes of the proceedings before the Supreme Court. The applicant received the certificate of appointment on 10 February 1994. By letter of the same day, the applicant requested the Supreme Court to allow him to be represented by Mr. P. at the hearings and to attend them as an observer. On 16 February 1994 the Innsbruck Regional Court, upon instructions by the Supreme Court, informed the applicant, with the assistance of an interpreter, that the conditions of section 296 § 3 of the Code of Criminal Procedure were not satisfied, and that his attendance as an observer was not possible. 15. On 17 February 1994 the Supreme Court held the hearing on the plea of nullity and the appeals in the absence of the applicant. He was represented by his new official defence counsel, Mr. S. The Supreme Court rejected the plea of nullity as well as both appeals. 16. The Supreme Court, in its judgment, found that the rejection by the trial court of the applicant's requests for the taking of evidence did not impair the rights of the defence. In particular, the Supreme Court confirmed in detail the reasoning of the trial court that the requests concerned in part irrelevant issues and in part issues which required expert evidence. Moreover, the applicant had failed to show the necessity of a second expert opinion as to his criminal responsibility. The Supreme Court also dismissed the applicant's argument that the order of questions put to the jury had been incorrect. The Supreme Court found that there could be no objection to the findings of the jury. The applicant's allegation of a discrepancy in the statements of one of the main witnesses was unfounded and, in any event, expert evidence had been taken on the relevant issue, namely his mental state at the time of the offence. 17. As regards the appeals, the Supreme Court noted that the applicant's own statements appeared to indicate that he quickly lost his self-control in his contacts with women. Nevertheless, there was no sufficient reason to exclude the mitigating circumstance that he had been previously of good conduct. The Supreme Court further, on the basis of the file, considered that there had been no provocation and that there were no indications of exceptional mental or emotional excitement. Except for the further mitigating circumstance, there was no other reason to amend the evaluation regarding the applicant's character or his mental state at the time of the offence, or his motive. Taking all the circumstances into account, the sentence imposed by the trial court appeared appropriate. 18. The decision was received at the Innsbruck Regional Court on 3 March 1994 and by the applicant's defence counsel, Mr. P., on 10 March 1994. 19. A first-instance court judgment given by a Court of Assizes, at a Regional Court can 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 Court of Assizes 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. The Supreme Court supervises the correct application of the criminal law, but in so doing is bound by the jury's findings of fact. 20. 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. 21. 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. ...” 22. Section 344 of the Code of Criminal Procedure applies, in principle, the above 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. 23. The sentence as such can 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. 24. 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.” 25. The applicant applied to the Commission on 12 August 1994. He alleged, inter alia, a violation of Article 6 §§ 1 and 3 (c) of the Convention on the ground that, in criminal proceedings against him, he was not present at the hearing before the Supreme Court. 26. The Commission declared the application (No. 25878/94) partly admissible on 10 April 1997. In its report of 20 May 1998 (former Article 31 of the Convention), it expressed by a majority the opinion that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention.