Kremzow v Austria (Series A, No 268-B; Application No 12350/86), EUROPEAN COURT OF HUMAN RIGHTS (1994) 17 EHRR 322, 21 SEPTEMBER 1993

Rights in criminal proceedings

FACTS:

The applicant was found guilty of murder was sentenced to 20 years in an psychiatric institution convicted criminals. The applicant filed this complaint because of the manner in which the appeal proceedings were conducted. The applicant also alleges various breaches of Article 6(1), (2) and (3)(b) and (c) of the European Human Rights Convention.

Specifically, the applicant complains that his rights were violated in five situations. First, the Attorney-General had drawn up a position paper and given it to the Supreme Court. However, that paper was not given to the applicant until three weeks before the start of the hearings. Second, additional evidence found after the trial but before the appeals hearings were given to the applicant shortly before the hearing. Third, prior to the appeal hearing, a memo by one of the judges dealing within this case was circulated among the members of the Court. Fourth, the applicant's petition under the Convention to appear in person before the Supreme Court instead of being represented by his official defence counsel was rejected, such decision being served on the applicant's counsel on the day of the hearing. The applicant did not exercise his right under domestic law to apply to be brought before the Court. At the hearing, the applicant was represented by his official defense counsel and denied the opportunity to represent himself. Finally, the Court affirmed the judgment of the trial court and sentenced the applicant to life imprisonment in a mental institution.

1. Criminal proceedings: fair trial: preparation of defence (Art 6(1) and (3)(b)).

The Court decided that even though the applicant may have been disadvantaged because his counsel did not receive the paper prepared by the Attorney General, he had ample time to prepare for his defense. Hence, the Court effectively held that three weeks was a sufficient period to examine and prepare against the other sides arguments within the meaning of Article 6(3)(b).

The Court also held that restricting the applicant's counsel from examining the Courts files does not contradict the rights of the accused in a trial setting.

Finally, the court found that informing the applicant and/or his counsel that the applicant may not attend the hearing on the day the hearing was set to begin did not violate the relevant article nor did it hinder the ability of the applicant or his counsel to prepare and adequate defense.

2. Criminal proceedings: fair trial: attendance at hearing (Art 6(1) and 3(c)).

Though the appearance of a defendant at the appeal level is not as important as it is at the trial level, those rights guaranteed in Article 6. Nevertheless, that right should be assessed relative to the special features of the proceedings involved in manner that would guarantee the defendant's interests.

The appeal and nullity proceedings were primarily concerned with questions of law. Although the Supreme Court in this case was bound to the fact accepted at the trial level, it may decide on the admissibility of any fact. In this case, the applicant was legally represented and he received the additional evidence which the Supreme Court had in its possession before the hearing. He also has sufficient time to make any submissions on those new facts to the court before the hearing. In these circumstances, there was no violation of Article 6(3)(c).

The appeal proceeding decided issues that were of great importance to the applicant. thus his presence at such proceedings was vital for the protection of his interests as well as for the fundamental fairness of the hearing. Hence, Art. 6(3)(c)

5. Criminal proceedings: fair trial: equality of arms (Art 6(1)).

The Court rejected the applicant's complaints of inequality of arms both on the facts and in law, in that the circumstances raised, such as the late service of the Attorney-General's position paper on the applicant and the alleged disclosure of the judge rapporteur's name to the Attorney- General's office could not render the proceedings unfair.

The following cases are referred to in the judgment of the court:

1. BRANDSTETTER v AUSTRIA (A/211): (1991) 15 EHRR 378.
2. FEJDE v SWEDEN (A/212-C): (1991) 17 EHRR 14.
3. HELMERS v SWEDEN (A/212-A): (1991) 15 EHRR 285.
The following additional cases are referred to in the report of the Commission:
4. ANDERSSON v SWEDEN (A/212-B): (1991) 15 EHRR 218.
5. BORGERS v BELGIUM (A/21-B): (1991) 15 EHRR 92.
6. COLOZZA v ITALY (A/89): (1985) 7 EHRR 516.
7. DEWEER v BELGIUM (A/35): (1980) 2 EHRR 439.
8. EKBATANI v SWEDEN (A/134): (1988) 13 EHRR 504.
9. OBERSCHLICK, Series A, No 204.
10. PFEIFER AND PLANKL v AUSTRIA (A/227): (1992) 14 EHRR 692.
11. PHILIS v GREECE (A/209): (1991) 13 EHRR 741.
12. FRICK v AUSTRIA, Application No 13129/87, Dec 15.10.91.
13. HENNINGS v GERMANY, Application No 12139/86, Comm Rep 30.5.91.
14. PESCHKE v AUSTRIA, Application No 8289/78, Dec 5.3.80, DR 18, p 160.
15. U v LUXEMBOURG, Application No 10142/82, Dec 30.5.91, DR 42, p 86.

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