BAUMANN v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant, Roland Baumann, is a Austrian national, born in 1969 and living in Graz (Austria). The facts of the case, as submitted by the parties, may be summarised as follows. On 1 July 1996 the Leoben Regional Court convicted the applicant of murder and aggravated coercion and sentenced him to 18 years’ imprisonment. In assessing the penalty (Strafbemessung) the court considered as mitigating circumstances the applicant’s “neglected education” (vernachlässigte Erziehung) and his partial confession. As aggravating circumstances, the court took account of his criminal record and the fact that he was a recidivist. On 19 August 1996 the applicant, represented by counsel, filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). In his appeal he complained that the penalty was too high. As to the mitigating circumstances, he maintained that his neglected education was not given sufficient weight. Moreover, the Regional Court should have taken into account his intoxication and his particular mental state at the time of the criminal act due to the fact that he had suspected the victim of having tried to prostitute his wife. The applicant did not make a request to attend the hearing before the Supreme Court. On 30 September 1996 the Supreme Court fixed the hearing date for the applicant’s plea of nullity and his appeal for 5 November 1996. 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 was informed that he would not be brought to court as the conditions set out in the relevant provisions of the Code of Criminal Procedure (Strafprozeßordung) were not fulfilled. On 5 November 1996 the Supreme Court, after having held a hearing in the absence of the applicant but in the presence of his defence counsel, Ms. S., dismissed his plea of nullity as well as his appeal. As regards the appeal, the court found that the concurrent nature of the offences (Zusammentreffen strafbarer Handlungen verschiedener Art) had to be taken into account as an additional aggravating circumstance. The Supreme Court ruled that a neglected education could not be considered as a mitigating circumstance in the applicant’s case, given that he was an adult and had already been imprisoned several times before. Nor could the applicant’s intoxication be considered a mitigating circumstance because, in view of his previous offences, he should have appreciated the effects alcohol had on him. As to his mental state at the time of commission of the offence, the court relied on an expert’s psychiatric opinion to the effect that the applicant’s personality was characterised by an aggressive attitude as well as coldness and hostility towards other people. Under these circumstances the applicant’s special mental state could not be considered to be a mitigating factor. Furthermore, the Supreme Court noted that the applicant had not put forward any new mitigating circumstances.