AS TO THE ADMISSIBILITY OF


                      Application No. 28501/95
                      by Dimiter POBORNIKOFF
                      against Austria

     The European Commission of Human Rights sitting in private on
14 January 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President
                 N. BRATZA
                 E. BUSUTTIL
                 A. WEITZEL
                 C.L. ROZAKIS
           Mrs   J. LIDDY
           MM    L. LOUCAIDES
                 B. MARXER
                 B. CONFORTI
                 I. BÉKÉS
                 G. RESS
                 A. PERENIC
                 C. BÎRSAN
                 K. HERNDL
                 M. VILA AMIGÓ
           Mrs   M. HION
           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 21 July 1994 by
Mr Dimiter POBORNIKOFF against Austria and registered on
5 September 1995 under file No. 28501/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of
     the Commission;

-    the observations submitted by the respondent Government on
     13 May 1997 and the observations in reply submitted by the
     applicant on 27 August 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1921, is a German national. He is detained
at the Stein prison in Austria. In the proceedings before the
Commission he is represented by Mr. H. Baumgärtl, a lawyer practising
in Munich.

A.   Particular circumstances of the case

     The facts of the case, as submitted by the parties, may be
summarised as follows.

     On 8 March 1993 the Public Prosecutor's Office at the Feldkirch
Regional Court filed an indictment charging the applicant with murder.
It was alleged that the applicant, in December 1992, had killed his
wife and had then buried her corpse, of which the head had been cut
off, in a field where it had been discovered in May 1992. It was
further alleged that he had had a mistress, and had run into financial
difficulties as he had rented and furnished an apartment for her and
had maintained her, whereas his  wife, who had opposed a divorce, had
owned the spouses' house and a collection of jewellery of considerable
value. In these and the trial proceedings the applicant was represented
by official counsel, Mr. A.

     On 1 October 1993 the Feldkirch Regional Court, sitting as a
Court of Assizes (Geschwornengericht), gave judgment. The jury found
the applicant guilty of murder. The court, sitting with the jury,
sentenced him to life imprisonment. It considered as aggravating
circumstances that the applicant had acted for particularly base
motives and had acted cruelly. It found that there were no mitigating
circumstances.

     On 2 November 1993 the applicant, still represented by Mr. A.,
filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal
(Berufung). In his plea of nullity he complained about the composition
of the court, the court's failure to put alternative questions to the
jury and about the lack of reasons for the jury's verdict. He also
submitted that there was no factual basis for finding him guilty. In
his appeal he complained in particular that the Regional Court's
judgment did not give sufficient reasons for its determination of the
sentence. As to the aggravating circumstances, it was not clear which
motives had been found to be established and had been evaluated as
being particularly base. Nor did the judgment mention any facts which
would allow the conclusion that he had acted in a cruel manner. As to
possible mitigating circumstances, the applicant complained that the
Regional Court had failed to take his advanced age and the fact that
he had no prior convictions into account. The applicant did not request
to attend the hearing before the Supreme Court.

     On 21 December 1993 the Supreme Court (Oberster Gerichtshof)
fixed the hearing date for the applicant's plea of nullity and his
appeal for 27 January 1994. The applicant received a notification,
which stated that his counsel would be summoned to the hearing. As to
the hearing of the plea of nullity, the notification informed him that
he, being detained, could only appear through his counsel. As to the
hearing of the appeal, he would not be brought to the court as the
conditions of S. 296 para. 3 of the Code of Criminal Procedure
(Strafprozeßordung) were not fulfilled.

     On 27 January 1994 the Supreme Court after having held a hearing
in absence of the applicant but in presence of his new official defence
counsel, Mr. K., rejected his plea of nullity as well as his appeal.
As regards the appeal, the Court found that the applicant had rightly
claimed as a mitigating circumstance that he had no prior convictions.
Further, given that the manner in which the applicant had killed his
wife had remained unclear, there was no factual basis for finding that
the applicant had acted cruelly and for applying the corresponding
aggravating circumstance. However, the outcome of the proceedings
supported the conclusion that the applicant had acted for particularly
base motives. Attaching particular weight to this aggravating
circumstance, the Supreme Court found that - notwithstanding the above
corrections concerning the basis for determining the sentence - the
sentence of life imprisonment was commensurate with the applicant's
guilt.

B.   Relevant domestic law

     A first instance judgment given by a Court of Assizes at a
Regional Court can be challenged by a plea of nullity to the Supreme
Court on specific grounds enumerated in S. 345 para. 1 of the Code of
Criminal Procedure (Strafprozeßordnung). The Supreme Court supervises
the correct application of the criminal law, but in so doing is bound
by the jury's findings as to the facts. In general, the Supreme Court
conducts a public hearing on the plea of nullity, which may be combined
with a hearing on appeals against sentence. As regards hearings on a
plea of nullity, S. 286 of the Code of Criminal Procedure, applicable
to nullity pleas arising out of jury trials pursuant to S. 344 of the
Code, provides that if the accused is under arrest, the notice of
hearing given to him shall mention that he may only appear through
counsel.

     The sentence as such can be challenged by way of an appeal
against sentence. It may concern both points of law (in particular
whether mitigating or aggravating circumstances have been correctly
taken into account) and factors relating to the assessment of the
sentence. As regards the personal appearance of the accused at appeal
hearings, S. 296 para. 3 provides that the Supreme Court, when deciding
upon an appeal at the public hearing on the plea of nullity, always has
to summon an accused who is not detained. An accused who is detained
shall also be brought before the court if he has made a request to this
effect in his appeal or counter-statement or if his personal presence
appears necessary in the interest of justice.


COMPLAINTS

     The applicant complains that the Supreme Court held the hearing
on his plea of nullity and his appeal in his absence. He invokes
Article 6 paras. 1 and 3 (c), (d) and (e) of the Convention.


PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 21 July 1994 and registered on
5 September 1995.

     On 27 February 1997 the Commission decided to communicate the
application.

     The Government's written observations were submitted on
13 May 1997. The applicant replied on 27 August 1997 after an extension
of the time-limit set for this purpose.

THE LAW

     The applicant complains that the Supreme Court held the hearing
on his plea of nullity and his appeal in his absence. He invokes
Article 6 paras. 1 and 3 (c), (d) and (e)
(Art. 6-1, 6-3-c, 6-3-d, 6-3-e) of the Convention.

     Article 6 (Art. 6), so far as relevant, reads as follows:

     "1.   In the determination of ... any criminal charge against
     him, everyone is entitled to a fair and public hearing ... by [a]
     ... tribunal ...

     ...

     3.    Everyone charged with a criminal offence has the following
     minimum rights:

           ...

           c.    to defend himself in person or through legal
     assistance of his own choosing or, if he has not sufficient means
     to pay for legal assistance, to be given it free when the
     interests of justice so require;"

a.   The Government submit that the applicant failed to exhaust
domestic remedies as required by Article 26 (Art. 26) of the
Convention, as he did not request his attendance at the hearing before
the Supreme Court in accordance with S. 296 para. 3 of the Austrian
Code of Criminal Procedure. Further, as regards compliance with the six
months time-limit laid down in Article 26 (Art. 26), the Government
voice doubts as to whether the applicant has sufficiently raised the
complaint at issue in his first communication to the Commission, dated
21 July 1994.

     The applicant submits that his official defence counsel, despite
the fact that he repeatedly expressed his wish to be heard personally
by the Supreme Court, did not inform him of the possibility to make a
request to this effect.  The applicant contests the Government's view
as regards compliance with the six months time-limit.

     Under Article 26 (Art. 26) of the Convention the Commission may
only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law, and within a period of six months from the date on which the final
decision was taken.

     The Commission recalls that in order to exhaust domestic remedies
an applicant should have recourse to remedies which are available and
sufficient to afford redress in respect of the breaches alleged.
Article 26 (Art. 26) also requires that any procedural means that might
prevent a breach of the Convention should have been used (Eur. Court
HR, Akdivar v. Turkey judgment of 16 September 1996, Reports of
Judgments and Decisions 1996-IV, No. 15, p. 1210, para. 66). In this
context, it has been recognised that Article 26 (Art. 26) must be
applied with some degree of flexibility and without excessive
formalism; it is essential to have regard to the particular
circumstances of each individual case (Akdivar judgment, loc. cit., p.
1211, para. 69).

     In the present case, the Commission considers that the question
whether the applicant ought to have requested leave to attend the
hearing of his appeal is so closely related to the merits of his
complaint that it cannot be dealt with separately.

     As regards compliance with the six months rule, the Commission
notes that the Supreme Court gave judgment on 27 January 1994. The
applicant, in his letter of 21 July 1994, complained that the evidence
adduced against him did not suffice to carry a finding of guilt but
also claimed that the proceedings were unfair in that the Supreme Court
rejected his plea of nullity and his appeal in his absence. In these
circumstances, the Commission finds that the applicant has complied
with the six months time-limit under Article 26 (Art. 26) of the
Convention.

b.   As to Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention, the Government submit that these provisions do not require
the applicant's presence at the hearing of his plea of nullity as the
Supreme Court is bound by the Assize Court's findings on the facts and
only has to determine questions of law. Further, the Government argue
that the hearing of the applicant's appeal did not involve any question
which would have necessitated that his personal attendance be ordered
ex officio.

     The applicant contests the Government's view. As to the hearing
of his plea of nullity he submits in particular that his official
defence counsel was replaced by another official defence counsel
shortly before the hearing. He claims that the latter failed to contact
him and that he was, therefore, not duly represented before the Supreme
Court. As to the hearing of his appeal he submits that the Supreme
Court, in accordance with S. 296 para. 3 of the Code of Criminal
Procedure, would have been required to summon him in the interest of
justice as the proceedings involved an evaluation of his personality
and character.

     The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application. The Commission concludes,
therefore, that the application is not manifestly ill-founded, within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other grounds for declaring it inadmissible have been established.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
     merits of the case.

  M.F. BUQUICCHIO                              M.P. PELLONPÄÄ
     Secretary                                    President
to the First Chamber                         of the First Chamber