PESTI AND FRODL v. AUSTRIA
Inadmissible
Nicolas Bratza
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. 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.