CASE OF RIEPAN v. AUSTRIA
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
9. The applicant is serving an eighteen-year prison term following his conviction for murder and burglary in 1987. He was first detained at Karlau Prison, from which he escaped in 1991 but was rearrested within a day. In September 1994 he was transferred to Stein Prison and on 8 May 1995 to Garsten Prison, as the prison administration feared that he and a number of other inmates were devising an escape plan. 10. On 8 May 1995, when prison personnel at Garsten carried out the necessary reception formalities, the applicant refused to cooperate and demanded to be returned to Stein Prison, threatening that otherwise he and other inmates would set fire to Garsten Prison. On the following day, in the course of an interview with a senior prison officer, he again insisted on being returned to Stein Prison and threatened the prison officer that otherwise someone would pay the officer “a private visit”. A few days later he threatened a prison warder saying “that he should not turn his back on him”. On account of these incidents, criminal proceedings on charges of threatening behaviour (gefährliche Drohung) were instituted against the applicant. 11. The Steyr Regional Court (Landesgericht) decided to hold the hearing at Garsten Prison, which is situated about 5 km from Steyr. It set down 29 January 1996 as the date for the trial. The summons indicating the date and place of the hearing was served on the applicant as well as on his official defence counsel a month before the hearing. 12. At the material time information about hearings held at the Steyr Regional Court was given as follows. The public prosecutor's office at the Regional Court issued a hearing list (Verhandlungsspiegel) in the middle of each week for the following week, containing, inter alia, the date and place of all hearings in criminal proceedings. This information would also include the number of the court hearing room and would, if appropriate, indicate that the hearing was to be held at the scene of the crime or the name of the prison at which it was to take place. The Government were unable to provide the list for the week of 29 January 1996, as these lists are not kept, but asserted that it would, in accordance with the usual practice, have indicated Garsten Prison as the place of the hearing in the applicant's case. The hearing list was distributed by the public prosecutor's office to the media, namely to the most important national and regional newspapers, as well as to the national broadcasting station. Furthermore, a copy was given to the Regional Court's registry and information desk. Thus, interested persons could obtain information about forthcoming hearings either by calling the court's registry or by presenting themselves at the court's entrance. 13. On 29 January 1996 the Steyr Regional Court, sitting with a single judge, held a hearing in the closed area (Gesperre) of Garsten Prison. The hearing room measured about 25 sq. m. It was furnished with a table and seats for the judge, the secretary, the public prosecutor, the applicant and his defence counsel. There is disagreement between the parties as to whether there were further seats available for witnesses and potential spectators. 14. The hearing, which according to the minutes was public, was opened at 8.30 a.m. It lasted thirty-five minutes. The applicant, assisted by counsel, pleaded not guilty. The court heard the four prison officers to whom the applicant had allegedly addressed threats as witnesses. Neither the applicant nor his counsel complained about a lack of publicity at that time. Following the hearing, the Regional Court convicted the applicant of threatening behaviour, finding that he had on three occasions threatened prison personnel with arson or assault, and sentenced him to ten months' imprisonment. 15. Thereupon, the applicant filed an appeal on points of law and fact, as well as against sentence (Berufung wegen Nichtigkeit, Schuld und Strafe). He complained, in particular, as a ground of nullity, that the hearing on 29 January 1996 had not been public since it took place in the closed area of Garsten Prison, to which only people with special permits, other than prison personnel, had access. He also claimed that the room in which the hearing was held was too small to accommodate any spectators and alleged that not even the witnesses had been able to stay in the room simultaneously. Moreover, he challenged the Regional Court's assessment of the evidence and its establishment of the facts. Finally, he complained that the sentence was too severe. 16. On 5 July 1996 the Linz Court of Appeal (Oberlandesgericht) held a public hearing in the court building in the presence of the applicant and his counsel. The appellate court is about 50 km from Garsten Prison. The hearing lasted three-quarters of an hour. The court heard the applicant as regards the alleged lack of publicity of the hearing on 29 January 1996. It also heard him on the various counts of threatening behaviour, questioning him as regards the statements made by the witnesses at the trial. It did not rehear the witnesses and the defence made no request to this effect. 17. The Court of Appeal dismissed the case. As to the complaint that the hearing on 29 January 1996 had not been public, the court noted that, according to information submitted by the Steyr Regional Court, the hearing was public in the sense that any interested person would have been allowed to attend. Had the prison governor been concerned that interested persons should not be granted access to the closed area, he would have been obliged to prohibit the conduct of the trial in that part of the prison. In any case, no such persons wishing to attend the trial had been present at the beginning of the hearing, and the judge had not been informed of any potential spectators. 18. As to the applicant's appeal on points of fact, the Court of Appeal stated that it had no doubts regarding the Regional Court's evaluation of the evidence and its establishment of the facts. The appellate court also confirmed the Regional Court's legal view that the applicant had, by threatening prison personnel with arson or assault, committed the offence of threatening behaviour. Finally, it found that the sentence was commensurate with the applicant's guilt. 19. Article 90 § 1 of the Federal Constitution (Bundesverfassungsgesetz) provides: “Hearings by trial courts in ... criminal cases shall be oral and public. Exceptions may be prescribed by law.” 20. Article 228 § 1 of the Code of Criminal Procedure (Strafprozessordnung) provides that the trial is to be public. Failure to comply with this requirement constitutes a ground of nullity. According to Article 229 § 1, the public may be excluded from the trial in the interests of morals or public order. The court has to take a formal decision on the exclusion of the public. No remedy lies against such a decision. Pursuant to Article 488, the above provisions apply to proceedings before a single judge. 21. According to Article 489 § 1 taken together with Article 472 § 1, an appeal hearing against a judgment of a single judge has to be public. Articles 228 and 229 apply. 22. According to Article 489 § 1 taken together with Article 464, an appeal on points of law and fact and against sentence lies against the judgment of a single judge. By virtue of Article 467 § 1, the appellant may adduce new facts and evidence. In accordance with Article 473 § 2, the appellate court will rehear witnesses and experts if it has doubts as to the correctness of the first-instance court's establishment of the facts, or if it holds that the hearing of new witnesses or experts as regards the same facts is necessary. Otherwise, it will take its decision on the basis of the file.