Zipper v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 27778/95

by Johann ZIPPER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 3 October 1994 by

Johann ZIPPER against Austria and registered on 3 July 1995 under file

No. 27778/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1949. He is

presently detained at the Krems/Stein prison. Before the Commission

he is represented by Mr. Strobl, a lawyer practising in Vienna.

The facts, as submitted by the applicant, may be summarised as

follows.

On 22 July 1993 the Vienna Regional Criminal Court (Landesgericht

für Strafsachen) convicted the applicant of attempted burglary

(versuchter Diebstahl durch Einbruch) and sentenced him to twenty

months' imprisonment. It further revoked a conditional release from

a previous sentence of imprisonment.

The Regional Court found that the applicant, on 15 March 1993,

had gone together with an unidentified third person to a nurses home

(Schwesternheim) in Vienna. There he had opened the locked entrance

door of C.W., a nurse living there, with a pocket-knife as he had the

intention to burgle her apartment. After the door had been opened, but

before he could enter the apartment, C.W. returned. When she had asked

the applicant what he had been doing there he stated that he had been

looking for another person and left. The Regional Court did not accept

the applicant's defence that he had only been looking for another

person and that the door had already been open when he had arrived.

In the Court's view the only conclusion to be drawn from the evidence

before it was that the applicant himself had opened the locked door

with a tool. The Regional Court also noted that at the trial the

applicant, assisted by counsel, had requested that a seized pocket-

knife be examined by an expert in order to establish that the lock of

C.W.'s door could not be opened by this pocket-knife. The Regional

Court found that the evidence requested had been irrelevant to the

proceedings. It had not been established at the trial which precise

tool the applicant had used on 15 March 1993 in order to open C.W.'s

door, since he had not been arrested immediately afterwards.

On 30 November 1993 the applicant filed a plea of nullity

(Nichtigkeitsbeschwerde) and an appeal against the sentence (Berufung)

He complained that the Regional Court had rejected his request for an

expert report and that the Regional Court's judgment was contradictory.

While the Regional Criminal Court had found on the one hand that he had

used a pocket-knife for opening the door, it had found, in the part of

the judgment which related to the assessment of the evidence that it

had not been established what type of tool he had used.

On 18 January 1994 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity. It found that the Regional

Court had acted correctly when dismissing the request for an expert

report. As regards the alleged inconsistencies in the judgment

complained of the Supreme Court found that no such inconsistencies

existed. According to the original of the judgment in the file, the

Regional Court had consistently stated that the applicant had opened

the door with a "tool, possibly a pocket-knife".

On 17 March 1994 the Vienna Court of Appeal (Oberlandesgericht)

reduced the applicant's sentence to fifteen months' imprisonment. This

judgment was served on the applicant's lawyer on 8 April 1994.

At an unspecified date the applicant's lawyer inspected the case

file. In the case file, he found the original of the Regional Court's

judgment which, unlike the copy served on him, carried several

corrections in handwriting. These corrections consisted in the

rectification of writing mistakes and stylistic changes. On pages 3

and 5 the word "pocket-knife" was replaced by the words "tool, possibly

a pocket-knife". This corrected version of the judgment had not been

served on the applicant.

Apart from the applicant's lawyer's request for an expert opinion

on the question whether the door could have been opened with the

pocket-knife seized, and the dismissal of this request by the court,

the transcript of the trial before the Regional Criminal Court does not

contain any reference to the tool used by the applicant.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the correction of the Regional Court's judgment violated his right to

a fair trial. He submits that the correction of the judgment must have

taken place after he had filed his appeal. While the inconsistencies

of the non-corrected judgment would have constituted a ground of

nullity, the subsequent correction of the judgment led to the dismissal

of his plea of nullity by the Supreme Court.

THE LAW

The applicant complains under Article 6 (Art. 6) of the

Convention that the correction of the Regional Court's judgment and the

failure to serve the corrected judgment on him violated his right to

a fair trial.

Article 6 para. 1 (Art. 6-1) 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 and public hearing ... by an

independent and impartial tribunal established by law."

The Commission recalls that the Contracting States enjoy

considerable freedom in the choice of the appropriate means to ensure

that their judicial systems comply with the requirements of Article 6

(Art. 6). The national courts must, however, indicate with sufficient

clarity the grounds on which they based their decision. It is this,

inter alia, which makes it possible for the accused to exercise

usefully the rights of appeal available to him (Eur. Court HR,

Hadjianastassiou v. Greece judgment of 16 December 1992, Series A no.

252, p. 16, para. 33).

The Commission observes that at the trial the Regional Criminal

Court rejected the applicant's request to obtain an expert opinion as

to whether it had been possible to open the locked door with a pocket-

knife seized from the applicant. Already in the non-corrected version

of the judgment the Regional Criminal Court stated as a reason for this

rejection that the type of the tool used by the applicant was not

established and furthermore irrelevant. Also when refuting the

applicant's defence the Regional Court found that the applicant had

used a tool for opening the door.

The Commission therefore finds that the reasons given by the

Regional Criminal Court for the rejection of the applicant's request

to take evidence made it sufficiently clear that the Regional Court did

not consider that the applicant had necessarily used a pocket-knife to

open the door. For this reason the corrections contained in the

judgment, the replacing of the word "pocket-knife" by the words "tool,

possibly a pocket-knife" constituted only a minor change which did not

prevent the applicant from effectively exercising his right of appeal.

In the circumstances of the present case the Commission finds

that there were no such procedural deficiencies as to render the

criminal proceedings taken as a whole unfair. Accordingly, there is

no appearance of a violation of the applicant's rights under Article 6

para. 1 (Art. 6-1) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber