AS TO THE ADMISSIBILITY OF
Application no. 20593/02
by Rainer Maria MORINGER
The European Court of Human Rights (First Section), sitting on 1 February 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 22 May 2002,
Having regard to the President's decision of 24 August 2003 to communicate the complaint about the length of the proceedings to the respondent Government and to rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention),
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Rainer Maria Moringer, is an Austrian national, who was born in 1942 and is currently detained at Garsten prison (Austria). He was represented before the Court by Moringer and Moser, a company of lawyers practising in Linz. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
The circumstances of the case
In 1985 the Linz Regional Court (Landesgericht) instituted preliminary investigations against the applicant on suspicion of inter alia aggravated fraud. On 11 October 1985 these proceedings were transferred to the Vienna Regional Criminal Court and joined to the proceedings against B.R., as it appeared that he and the applicant had acted as accomplices.
On 8 October 1987 the investigating judge at the Vienna Regional Criminal Court ordered the applicant's detention on remand on suspicion of, inter alia, partly attempted and partly completed aggravated fraud (schwerer Betrug), attempted fraudulent bankruptcy (betrügerische Krida), forgery (Urkundenfälschung), forgery of protected documents (Fälschung besonders geschützter Urkunden) and of having given false evidence (falsche Beweisaussage). On 19 October 1987 the applicant was taken into detention on remand. He was released on 27 October 1987.
On 27 December 1987 the applicant was questioned. He informed the investigating judge that he would stay in South Africa in January and February 1988.
On 22 November 1988 the Vienna Regional Criminal Court heard the applicant as a witness in the trial against B.R., the applicant's former business associate. On the same date the applicant was also heard as a suspect on the charges against him. He promised to stay at his address in South Africa. Moreover, it would be possible to contact him via his brother's office in Linz.
On 17 August 1989 the competent South African authorities informed the Regional Court that preliminary investigations had been opened against the applicant in South Africa on suspicion of fraud. Between August 1989 and June 1990 the applicant stayed in detention on remand in South Africa.
In the meantime, on 11 October 1989, the Regional Court requested the South African Supreme Court to hear the applicant by way of letters rogatory.
On 7 September 1990 the Vienna Regional Criminal Court issued an arrest warrant against the applicant.
On 14 November 1990 the Republic of Austria requested the Republic of South Africa to extradite the applicant to Austria as soon as the proceedings there were terminated.
On 18 March 1991 the Republic of Austria repeated its request for extradition. The competent authorities in South Africa subsequently requested further documents. The Regional Court, however, did not comply with this request, considering that it had to wait for the outcome of the proceedings in South Africa.
On 21 January 1992 the Federal Ministry of Foreign Affairs (Bundesministerium für auswärtige Angelegenheiten) submitted a report by the Austrian Embassy in South Africa to the Regional Court according to which the applicant had in the meantime been acquitted in the proceedings in South Africa.
In March 1992 the Austrian Embassy in South Africa refused the applicant's request for a regular passport but proposed to issue a passport valid for the entry to Austria only. The applicant declined this offer.
In the meantime, on 21 February 1992, the applicant filed a complaint against the warrant of arrest with the Regional Court. He submitted that he was residing in South Africa with the permission of the Regional Court and that he was willing to appear before the Austrian court at any time when summoned. On 4 March 1992 the Review Chamber of the Regional Court (Ratskammer) dismissed the applicant's complaint.
Upon request of the Public Prosecutor's Office, the Regional Court, on 20 May 1994, revoked the arrest warrant against the applicant. Instead it issued an order for establishing the applicant's whereabouts (Ausschreibung zur Aufenthaltsermittlung). On 3 June 1994 the Republic of Austria withdrew its request for the applicant's extradition.
On 29 August 1996 the applicant requested the Austrian General Consulate in Johannesburg to issue a passport to him. On 12 December 1996 the Austrian General Consulate in Johannesburg refused this request. It noted that the applicant knew about the pending criminal proceedings against him in Austria and there were reasons to assume that the applicant would abscond. The applicant's appeal remained unsuccessful.
On 20 January 1997 the Ministry for Foreign Affairs informed the Regional Court about the applicant's address in South Africa.
Between January 1997 and February 1998 correspondence was exchanged between the Ministry for the Interior, the Austrian General Consulate in Johannesburg and the applicant. The Ministry for the Interior held the view that a passport valid only for entry to Austria should be issued. The applicant stated that this was not acceptable to him.
On 16 March 1998 the Ministry for the Interior authorised the Austrian General Consulate in Johannesburg to issue to the applicant a passport valid in Austria and South Africa until 31 December 1998. On 19 May 1998 the Austrian General Consulate in Johannesburg issued the passport.
On 10 June 1998 the applicant informed the Regional Court that he was at its disposal for a further hearing. On 8 March 1999 the General Consulate in Johannesburg issued a passport valid in Austria and South Africa until 8 September 1999 to the applicant.
On 28 July and on 15 September 1999 the Regional Court heard the applicant.
On 20 April 2000 the Vienna Public Prosecutor's Office filed the indictment against the applicant.
From 30 January to 2 February 2001 and on 6 February 2001 the trial took place before the Vienna Regional Criminal Court, sitting as a chamber composed of two professional judges and two lay judges (Schöffengericht). The applicant was represented by counsel of his own choice.
In the morning of the first day of trial the applicant was interrogated by the Presiding Judge. The applicant requested a short interruption of the proceedings in order to consult with his counsel. The court ordered that the consultation should take place after the imminent interrogation of the applicant by the Public Prosecutor and the defence. According to the transcripts of the trial, the applicant did not reiterate his request at the end of this interrogation.
In the afternoon the applicant again requested permission to consult with his counsel in order to make a coherent statement of the facts to counter the charges. The court dismissed this request. It noted that the applicant had had the opportunity to present a coherent statement of the facts in the course of the interrogation by the Presiding Judge in the morning. Noting that the trial had been interrupted for more than an hour at lunchtime, it found that the applicant had had sufficient time to consult with counsel and that a further interruption would unduly hamper the course of the proceedings.
On the same day the applicant requested the court to admit his brother as a further defence counsel. Noting that the applicant's brother was to be heard as a witness, the court dismissed the request. It referred to Section 40 § 1 of the Code of Criminal Procedure (Strafprozes-ordnung) which states that a person summoned to appear as a witness in trial is excluded from acting as defence counsel.
The court heard several witnesses, some of them by way of letters rogatory (im Rechtshilfeweg). It further read out statements and certified statements of witnesses made in the pre-trial proceedings and in the criminal proceedings against B.R. It rejected the applicant's objections thereto. It dismissed the applicant's request to hear further witnesses and the applicant's motions for bias against it. On 31 January 2001 the court heard B.R. the applicant's former business associate as a witness.
On 6 February 2001 the applicant requested the court to adjourn the trial in order to consult the case-file. He submitted that he had consulted the case-file the day before, but it had not been complete and he had not had enough time to make copies. The court dismissed the applicant's request. It noted that the applicant had already consulted the case-file in the fourth week of January. Since then no relevant documents had been added. It further noted that the court had been at the disposal of the applicant the day before. However, he had failed to contact the court in due course in order to consult and copy the case-file.
On the same day the Vienna Regional Criminal Court convicted the applicant of partly attempted and partly completed aggravated fraud, attempted fraudulent bankruptcy, forgery, and forgery of protected documents but acquitted him of two other charges. The court sentenced the applicant to five years' imprisonment. It found that the applicant had, together with his business associate, B.R., demanded and obtained loans from several banks with the aid of forged documents. It dismissed the applicant's defence that he had not been involved in or had not known anything about the fraudulent activities of his business associate. On the basis of the statements made at the trial by the applicant's business partner and the applicant himself, and taking into account the established background situation, it held that the applicant had acted as an accomplice.
Finally, the court ordered the applicant's detention. Under Austrian law, detention following the first instance judgment qualifies as detention on remand until that judgment becomes final.
The applicant filed a plea for nullity and an appeal (Nichtigkeits-beschwerde und Berufung). Moreover, the applicant filed a request for rectification of the transcripts of the trial. On 21 March 2001 the Vienna Regional Criminal Court dismissed this request, finding that the transcripts of the trial had been established in accordance with the relevant rules of procedure and were correct.
On 3 March 2001 the Vienna Court of Appeal confirmed the applicant's detention. It decided, however, that the applicant should be released on bail to be determined by the Regional Court. On 23 May 2001 the Supreme Court rejected the applicant's fundamental rights' complaint (Grundrechtsbeschwerde). On 21 June 2001, the Vienna Court of Appeal, after having quashed three decisions of the Regional Court, fixed the bail at 20 million Austrian schillings.
On 3 October 2001 the Supreme Court (Oberster Gerichtshof) rejected the applicant's plea of nullity. As to the applicant's complaint about the refusal to hear a number of witnesses in court it observed that some of them could not be heard as their whereabouts had not been established, despite the court's attempts to locate them. It further confirmed that the hearing of other witnesses had not been necessary as the facts the applicant wanted to prove were irrelevant. Finally, it found that the statements of several witnesses who had not been heard in court concerned merely the charges of which the applicant had, in any way, been acquitted. As to the complaint about the court's alleged refusal to allow the applicant to consult his counsel during the trial, the Supreme Court noted that the applicant had failed to repeat his request for a consultation after the termination of his interrogation. Moreover, it noted that the interrogation by the Presiding Judge had given the applicant ample opportunity to make a coherent statement of the facts. Furthermore, the Supreme Court confirmed that the court's refusal to admit the applicant's brother as counsel had been in accordance with Section 40 § 1 of the Code of Criminal Procedure. As the applicant's allegations of bias were based on the above conduct of the proceedings which, however, did not disclose any irregularities, the Regional Court had correctly refused his motion for bias. Finally, the Supreme Court found that the Regional Court, on 6 February 2001, had rightly refused to adjourn the trial and confirmed its assessment that the applicant had had sufficient opportunity to consult the case-file.
On 14 January 2002 the Vienna Court of Appeal (Oberlandesgericht Wien) dismissed the applicant's appeal.
Meanwhile, on 3 January 2002, the applicant requested the Regional Court to deduct the time he had spent in detention on remand in South Africa from his sentence.
On 12 April 2002 the applicant filed an application for acceleration of the proceedings (Fristsetzungsantrag) under Section 91 of the Courts Act (Gerichtsorganisationsgesetz), asking that a time-limit be set for the Regional Court to issue a decision on his request of 3 January 2002.
On 15 April 2002 the Regional Court requested the applicant to submit further documents. On 22 April 2002 the applicant complied with this request.
On 27 April 2002 the Vienna Court of Appeal dismissed the applicant's request under Section 91 of the Courts Act. It noted that the Regional Court's attempts to obtain relevant information from the South African Authorities had remained unsuccessful. Currently, the documents submitted by the applicant had to be translated.
On 29 August 2002 the Regional Court deducted the time the applicant had spent in detention on remand in South Africa from his sentence. This decision was served on the applicant's counsel on 6 September 2002.
1. The applicant complained under Article 6 of the Convention about the length of the criminal proceedings.
2. He further complained about the alleged unfairness in the proceedings leading to his conviction.
a. He submitted that some of the witnesses' statements were read out at the trial so that he was deprived of the opportunity to put questions to them. He also complains about the court's refusal to take further evidence.
b. The applicant further complained about the court's refusal to admit his brother as a further defence counsel.
c. He complained that he could not effectively exercise his defence rights as the court did not give him the possibility to consult with his counsel during trial and therefore prevented him from making a coherent statement of the facts to counter the charges.
d. He complained that he did not have sufficient access to the case-file.
e. The applicant complained that this conduct of the proceedings gave rise to doubts as to the impartiality of the Presiding Judge.
f. The applicant further complained that the Supreme Court relied on the transcripts of the trial without taking further evidence. He submitted that these transcripts were incorrect and that, therefore, the course of the trial was not correctly and sufficiently documented.
3. The applicant further complained under Article 5 about the length of the proceedings concerning his detention following the Regional Court's judgment of 6 February 2001 and about the amount of the bail.
1. The applicant complained about the length of the proceedings concerning his detention following the Regional Court's judgment of 6 February 2001 and about the amount of the bail. He invoked Article 5 of the Convention, which, as far as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Court notes that the applicant's detention was based on his conviction by the Regional Court. Although detention following the first instance judgment is considered as detention on remand under Austrian law, this is not the case for the purpose of Article 5. According to established case-law, detention after the judgment at first instance no longer falls within the ambit of Article 5 § 1 (c), but within the scope of Article 5 § 1 (a) of the Convention (see for instance Labita v. Italy [GC], no. 26772/95, § 147, ECHR 2000-IV; B. v. Austria, judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§ 36-39). Thus, Article 5 § 3 does not apply. Moreover, the Court recalls that where a national court, after convicting a person of a criminal offence, imposes a fixed sentence of imprisonment for the purposes of punishment, the supervision required by Article 5 § 4 is incorporated in that court decision (see Waite v. the United Kingdom, no. 53236/99, § 56, 10 December 2002, unreported, with reference to De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, pp. 40-41, § 76). Thus, there is no room for the application of Article 5 § 4 either.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant complained under Article 6 §§ 1 and 3 of the Convention about the length and unfairness of the criminal proceedings against him. Article 6 of the Convention, as far as relevant, reads as follows:
“1. In the determination ...of any criminal charge against him, everyone is entitled to a fair ...hearing within a reasonable time by an independent and impartial tribunal established by law.
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing ...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
1. Complaint about the length of the proceedings
The Court reiterates that, according to its case-law, the period to be taken into consideration under Article 6 § 1 of the Convention must be determined autonomously. It begins at the time when formal charges are brought against a person or when that person has otherwise been substantially affected by actions taken by the prosecuting authorities as a result of a suspicion against him (see, for example the Hozee v. the Netherlands, judgment of 22 May 1998, Reports of Judgments and Decisions, 1998-III, p. 1100, § 43). The Court notes that the preliminary investigations against the applicant were instituted in 1985. However, it appears that no measures were taken against the applicant before October 1987 when the applicant was taken into detention on remand. The Court, therefore, considers that the time referred to in Article 6 § 1 began running from that date.
As regards the termination of the proceedings, the Court recalls that in criminal matters in event of conviction, there is no “determination of any criminal charge” within the meaning of Article 6 § 1 as long as the sentence is not definitively fixed (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 34, § 77). Consequently, the period to be taken into account in the present case ended on 6 September 2002 when the Regional Court's decision, deducting the time the applicant had spent in detention on remand in South Africa from the sentence, was served on the applicant's counsel. The proceedings lasted, thus, for nearly fifteen years.
The Government contended that the applicant had not exhausted domestic remedies as he had only once filed a request for acceleration of the proceedings under S. 91 of the Courts Act and this at a very late stage of the proceedings. They further contended that the case concerned complex fraud proceedings. The main cause of the delay was the conduct of the applicant, namely the fact that he had absconded from the proceedings during the preliminary proceedings.
The applicant maintained that the length of the proceedings was incompatible with Article 6 § 1 of the Convention. He contested that he had absconded from the proceedings at issue and argued that he had moved to South Africa with the permission of the investigating judge and that he had been reachable via his brother's office. The Austrian authorities, however, never approached him via his brother, and, in particular, never summoned him for a further hearing. He further submitted that from 1992 to 1998 he continuously tried to obtain a passport and that the issuing of a passport only became possible through repeated contacts of his counsel with the Regional Court. He had subsequently immediately contacted the Regional Court which, however, only heard him in summer 1999.
As regards the question whether the applicant has exhausted domestic remedies the Court notes that in the case of Holzinger v. Austria the Court has found that a request under Section 91 of the Austrian Courts Act is, in principle, an effective remedy which has to be used in respect of complaints about the length of court proceedings (no. 23459/94, §§ 24-25, ECHR 2001-I, relating to civil proceedings; see also Talirz v. Austria (dec.), no. 37323/97, 11 September 2001, relating to criminal proceedings). It stated, however, that the effectiveness of such a remedy may depend on whether it has a significant effect on the length of the proceedings as a whole (ibid., § 22). Thus, where proceedings include a substantial period during which the applicant has no remedy to expedite the proceedings at his/her disposal, a request under Section 91 cannot be considered an effective remedy (see mutatis mutandis, Holzinger (no. 2) v. Austria, no. 28898/95, §§ 21-22, ECHR 2001-I).
The criminal proceedings at issue started at the latest in October 1987, whereas Section 91 of the Austrian Courts Act was introduced on 1 January 1990. The proceedings, therefore, include a substantial period during which the applicant did not have a request under Section 91 of the Courts Act at his disposal. The Court nevertheless notes that the proceedings continued for more than twelve years after 1 January 1990. The applicant did nothing to expedite the proceedings until the very end of the proceedings when, on 12 April 2002, he filed an application under Section 91 of the Courts Act.
However, the Court need not examine whether or not in the proceedings at issue the applicant had exhausted domestic remedies, because the complaint about the length is, in any event, manifestly ill-founded for the following reasons:
The Court notes that the reasonableness of the length of the proceedings has to be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see among many others, Kudla v. Poland [GC], no. 30210/96, § 124, ECHR 2000-XI).
The Court finds that the subject-matter of the present case was of considerable complexity as it concerned a complicated case of white collar crime. The Court further notes that the proceedings at issue were characterised by the duration of the preliminary proceedings, which lasted from October 1987 until April 2000 when the Public Prosecutor's Office finally issued the indictment against the applicant. The Austrian authorities were undoubtedly responsible for some delays in these proceedings. The Court notes that, before the applicant was taken into detention on remand in South Africa, the proceedings against him in Austria had already lasted for nearly two years. The Court further notes that the applicant contacted the Regional Court in June 1998 and informed it that he was at its disposal for a further hearing. The Regional Court, however, heard the applicant only more than a year later, namely in June and September 1999.
However, the Court considers that the Austrian authorities cannot be held exclusively responsible for the length of the proceedings. The Court observes in this regard that the Austrian authorities were faced with the practical difficulty that the applicant, for some ten years, namely from 1989 to 1999 was staying in South Africa. It is true that the applicant had initially moved to South Africa after having informed the investigating judge and had left the address of his brother's office. The Court observes, however, that from August 1989 until June 1990 the applicant was out of the authorities' reach as he was detained in South Africa. In September 1990 the Austrian authorities issued an arrest warrant against the applicant, which in May 1994, was changed into an order for establishing the applicant's whereabouts. The Court observes that the applicant had been aware of the arrest warrant at the latest since February 1992. Nevertheless, he did not take any steps to have his case dealt with by the Austrian authorities, but on the contrary, twice refused the Austrian authorities' offer for a passport valid only for entry to Austria and remained in South Africa. It was only in June 1998, after the Austrian authorities had accepted to issue a passport valid not only in Austria but also in South Africa, that the applicant contacted the Regional Criminal Court and informed it that he was at its disposal for a further hearing.
In these circumstances, the conduct of the applicant leads the Court to conclude that he accepted and considerably contributed to the standstill of his proceedings in the pre-trial phase.
Having furthermore regard to the fact that the trial in itself and the appeal proceedings were conducted with reasonable diligence, the Court finds that the applicant's complaint about the length of the proceedings is unfounded.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Complaints about the alleged unfairness of the criminal proceedings
As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under those two provisions taken together (see Lucà v. Italy, no. 33354/96, § 37, ECHR 2001-II).
Firstly, the applicant complained that not all witnesses were heard in court. The Court recalls that the reading out of statements at the trial to which the judgment later has recourse is not in itself inconsistent with Article 6 §§ 1 and 3 (d) of the Convention. Only where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (ibid., § 40).
In the present case however, the Regional Court mainly based its decision on the evidence given by the applicant's accomplice and the applicant himself, who were both heard in court. The Court further notes that the Regional Court heard several witnesses in court and some witnesses by way of letters rogatory. The court further attempted to contact further witnesses but failed to secure their attendance before the court as their whereabouts could not be established. In this situation it decided to allow as evidence statements made in the earlier trial against the applicant's accomplice. These statements were read out and the applicant was able to challenge them. In any way, as the Supreme Court noted, most of these statements related to charges of which the applicant was acquitted. In these circumstances the Court finds that the case does not disclose any appearance of a violation of Article 6 §§ 1 and 3 (d).
Secondly, the applicant complained about the court's refusal to take further evidence. The Court recalls that the admissibility and assessment of evidence is primarily the task of the national courts. Only exceptional circumstances, such as the complete silence in a judgment as to why the court rejected the hearing of a witness for the defence, could lead the Convention organs to conclude that the refusal to hear such witnesses violated Article 6 of the Convention (Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, p. 31, § 89).
In the present case, the Court finds that the Austrian courts explained why they did not consider the evidence requested to be relevant to the proceedings and there is no indication that these decisions were arbitrary. In conclusion, the Court cannot find that the taking of evidence in the proceedings at issue infringed the rights of the defence to such an extent that it constituted a breach of Article 6 §§ 1 and 3 (d).
Thirdly, the applicant complained about the court's refusal to admit his brother as a further defence counsel. The Court recalls that the right to a counsel of his own choice is not an absolute one. When appointing a defence counsel the national courts must certainly have regard to the defendant's wishes. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Croissant v. Germany, judgment of 25 September 1992, Series A no. 237-B, § 29). Furthermore, national courts have in principle the right to make regulations concerning the appearance of lawyers before them (see Naviede v. United Kingdom (dec), no. 38072/97, 7 September 1999).
The Court notes that the applicant was represented and remained represented by a counsel of his own choosing at all stages of the proceedings. The Regional Court's decision to refuse the applicant's request to admit his brother as a further defence counsel was based on Section 40 of the Code of Criminal Procedure, which states that a person summoned to appear as a witness in trial is excluded from the defence. Such a rule is designed to prevent possible conflicts of interests and therefore serves the good administration of justice. Thus, the court's refusal to admit the applicant's brother as a defence counsel cannot be held to be incompatible with the requirements of Article 6 §§ 1 and 3 (c).
Fourthly, the applicant complained that he did not have sufficient opportunity to consult with counsel and had been hindered in making a statement of coherent facts in order to counter the charges. The Court observes that the applicant requested the court to allow him to consult with counsel and to make a coherent statement of the facts in order to counter the charges on the first day of the trial. The Regional Court dismissed this request. The applicant did not reiterate his request in the further course of the proceedings. The Court therefore has doubts as to whether the applicant has exhausted domestic remedies.
In any way, the applicant's complaint is inadmissible for the following reasons. The Court reiterates that, in a criminal case, the right to a “fair trial implies that both the prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. The States may secure that this requirement is met by various ways (see mutatis mutandis Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, pp. 27-28, §§ 66-67).
In the present case the applicant had ample opportunity to comment and to present his case and the evidence adduced by the prosecution. Thus, the case does not disclose any appearance of a violation of Article 6 § 1 on this point.
Fifthly, the applicant further submitted that the conduct of the proceedings by the Regional Court gave rise to doubts as to its impartiality. However, the applicant relied only on the alleged procedural defects set out above to substantiate this complaint. In view of the above findings, this complaint does not disclose any appearance of a violation of Article 6 § 1 either.
Finally, the applicant complained that the transcripts of the trial were incorrect and that he did not have sufficient access to the file. The Court reiterates that Article 6 cannot be said to require the review of the transcripts of the trial or the establishment of a full verbatim record of the first instance proceedings (see Pesti and Frodl v. Austria, (dec.) no. 27618/95, ECHR 2000-I (extracts)).
The Court further notes that the transcript of the present trial is voluminous and detailed covering some 500 pages. The Court observes that, if the applicant or his counsel had the impression that certain remarks were of particular importance to the proceedings or for a subsequent plea of nullity, they would have had the possibility to request the Regional Court to record them verbatim in the trial transcript. It does not appear that the applicant made any such requests. In these circumstances, the Court cannot find that the refusal of the applicant's request for the rectification of the transcripts infringed his defence rights. Nor does it find that his access to the file was unduly restricted. Again there is no appearance of a violation of Article 6 § 1 in this respect.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Decides to discontinue the application of Article 29 § 3 of the Convention,
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
MORINGER v. AUSTRIA DECISION
MORINGER v. AUSTRIA DECISION