WEDENIG v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant is an Austrian national, born in 1959 and living in Haimburg. He is represented before the Court by Mr Michael Gnesda, a lawyer practising in Vienna. A. On 8 September 1995 the Innsbruck Regional Court (Landesgericht) convicted the applicant inter alia of attempted extortion (versuchte ErpressungOberster Gerichtshof), it noted that it also had to take into account to what extent punishment was necessary to deter the applicant from further wrongdoing or to deter others from committing similar offences. On 12 December 1995 the Supreme Court dismissed the applicant’s plea of nullity (Nichtigkeitsbeschwerde). It noted the applicant’s allegation that the Regional Court had violated the law in that it took aspects of deterrence (Spezial- und Generalprävention) into account when determining his sentence. However, within the statutory range of punishment, the court, when determining which specific sentence was commensurate to the accused’s guilt, had a certain margin of appreciation within which it could also have regard to aspects of deterrence. Thus, the applicant had to be understood as alleging that the Regional Court had not correctly exercised its discretion. This question had to be examined before the Innsbruck Court of Appeal (Oberlandesgericht). On 1 February 1996 the Innsbruck Court of Appeal dismissed the applicant’s appeal (Berufung). It noted that the Regional Court had relied on well established case-law when indicating that it had also taken aspects of deterrence into account. The Court of Appeal stated that it saw no reasons to reduce the sentence and confirmed the Regional Court’s view that the sentence was commensurate to the applicant’s guilt. B. Relevant domestic law and practice The applicant alleges that the determination of the concrete sentence was in contradiction with section 32 of the Criminal Code (Strafgesetzbuch). Section 32 in the version which was in force at the material time - read as follows: “(1) The basis for assessing the sentence is the degree of the offender’s guilt. (2) In assessing the sentence, the court must weigh up the aggravating and mitigating factors, in so far as they have not already been taken into account to determine the type or tariff of penalty applicable. It must have regard, above all, to the extent to which the offence can be attributed to an attitude of rejection or indifference on the part of the offender towards values protected by the law, and the extent to which it can be traced back to external circumstances or motives capable of inducing even a law-abiding person to commit it.  (3) As a general principle, the severity of the sentence should be increased in proportion to the significance of the damage or injury, or risk of damage or injury, caused by the offender or for which he is liable, even if he did not cause it himself; the number of duties he breached by his conduct and the degree of premeditation, of care in preparing or ruthlessness in committing the offence, and in inverse proportion to the extent to which it could be guarded against.” The established case-law (see for instance the Supreme Court’s judgments of 10.10.1977, EvBl 1978/49, of 21.06.1979, EvBl 1979/208, of 09.12.1980, EvBl 1981/117 and of 24.03.1983, EvBl 1984/38), as well as the prevailing opinion in academic writing (see for example Burgstaller, Grundprobleme des Strafzumessungsrechts in Österreich, ZStW 94 (1982) 127), interpret the above provision as follows: The offender’s guilt is decisive for the determination of the penalty. However, the offender’s guilt cannot be equated to one precise amount of penalty (Punktsstrafe), but determines a range of possible punishment (Schuldrahmentheorie). The actual sentence imposed on the offender must not exceed this range. Within this range, however, aggravating and mitigating circumstances as enumerated in sections 33 and 34 of the Criminal Code as well as aspects of deterrence may be taken into consideration when determining the actual amount of penalty.