PROCEDURE

The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by the Austrian Government (“the Government”) on 5 July 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention). It originated in an application (no. 28501/95) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention by the applicant, a German national, Dimiter Pobornikoff (“the applicant”), on 21 July 1994. The applicant was represented by Mr H. Baumgärtl, a lawyer practising in Munich (Germany). The Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The Agent of the Government of the Federal Republic of Germany, having been informed by the Registrar of their right to intervene (former Article 48 (b) of the Convention and former Rule 35 § 3 (b)), indicated that they did not intend to do so.

The Government’s application referred to former Articles 44 and 48 and to the declaration whereby Austria had recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach of Article 6 §§ 1 and 3 (c).

On 20 September 1999 the Panel of the Grand Chamber decided, pursuant to Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, that the applications would be examined by one of the Sections. It was, thereupon, assigned to the Third Section. Within that Section, the Chamber was constituted in accordance with Rule 26 § 1 of the Rules of Court.

In accordance with Rule 59 § 3 of the Rules of Court, the President of the Chamber invited the parties to submit a memorial on the issues in the case. The Registrar received the Government’s memorial on 9 December 1999 and the applicant’s memorial on 7 April 2000.

After consulting the Agent of the Government and the applicant, the Chamber decided not to hold a hearing in the case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

On 8 March 1993 the Public Prosecutor's Office at the Feldkirch Regional Court (Landesgericht) filed an indictment charging the applicant with murder. It was alleged that the applicant, in December 1991, had killed his wife and had then buried her decapitated corpse 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 (Geschworenengericht), 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 the sentence. As to the aggravating circumstances, it was not clear which motives had been established and deemed 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 lack of 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 § 3 of the Code of Criminal Procedure (Strafprozeßordung) were not fulfilled. At an unspecified date in the middle of January 1994, the applicant was informed by the Vienna Bar Association that for the purpose of his representation at the hearing before the Supreme Court a new official defence counsel, Mr K., had been appointed as Mr A. would be unable to attend.

On 27 January 1994 the Supreme Court, after having held a hearing in the absence of the applicant but in the 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. Furthermore, cruelty had not been factually established as an aggravating circumstance. However, there was evidential support for 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 aforementioned deficiencies - the sentence of life imprisonment was commensurate with the applicant's guilt.
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Austrian Government
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5 July 1999
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DIRECT
28501/95
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Republic of Austria
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DEM
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German
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PERSON
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Dimiter Pobornikoff
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21 July 1994
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Mr H. Baumgärtl
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Munich
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correct
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Germany
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H. Winkler
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International Law Department
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Federal Ministry of Foreign Affairs
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Federal Republic of Germany
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Austria
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20 September 1999
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9 December 1999
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7 April 2000
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8 March 1993
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Public Prosecutor's Office
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Feldkirch Regional Court (Landesgericht)
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December 1991
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May 1992
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Mr. A.
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1 October 1993
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Feldkirch Regional Court
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Court of Assizes (Geschworenengericht)
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2 November 1993
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Mr. A.
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Regional Court
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Regional Court
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Supreme Court
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21 December 1993
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Supreme Court (Oberster Gerichtshof)
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27 January 1994
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January 1994
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Vienna Bar Association
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NO_MASK
Supreme Court
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PERSON
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Mr K.
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Mr A.
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27 January 1994
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Supreme Court
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Mr. K.
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Supreme Court
Dimiter Pobornikoff
AUT
CHAMBER
Task: Annotate the document to anonymise the following person: Dimiter Pobornikoff