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X. v. AUSTRIA - 2291/64 [1967] ECHR 8 (01 June 1967)
THE FACTSI. Whereas the facts as presented in great detail and with considerableprecision by the Applicant, and as appearing from the relevantdocuments submitted by him, may be summarised as follows:The Applicant is an Austrian citizen, born in 1924. He is detained inthe Stein Prison, serving a sentence of lifelong severe imprisonment(schwerer Kerker) for rape having caused the death of the victim(Notzucht mit Todsfolge) and for arson (Brandstiftung).In the night of .. to .. July, 1961, the Applicant had taken along inhis car a young woman, who later that night was found dead in a burningshed nearby. On .. July, 1961, the Applicant was arrested. His defencethat he had been already home at the time at which the crime must havetaken place, was at first not confirmed by his wife, who said she couldnot remember the time he had come home. In a letter of .. March, 1962the Applicant urged her to tell the truth without any restraint. Thisletter was withheld by the investigating judge (Untersuchungsrichter).He offered, however, the Applicant's wife another possibility to giveevidence, but she refused.Extensive investigations were made, experts examined in particular,whether some dirt found under the Applicant's finger-nails containedthe same chemical elements as the partly burnt woollen vest of thevictim. On .. September, 1962, the Applicant was indicted by the PublicProsecutor (Staatsanwaltschaft) at Korneuburg. On .. October, 1962, theCourt of Appeal of Vienna overruled his objection and ordered hisfurther detention in accordance with Article 182, paragraph 2, of theCode of Criminal Procedure.The Applicant retained as his defence counsel, Dr. Y. of Vienna. Thislawyer requested that the files should be sent to Vienna for hisinformation. This was refused and he then withdrew from the caseshortly before the trial. Consequently, a new lawyer instructed by theApplicant, Dr. Z., had only two days to see the files and to preparethe defence.From .. to .. December, 1962, the trial took place before the RegionalCourt (Geschworenengericht am Sitze des Kreisgerichtes) at Korneuburg.On .. December, 1962, the Court inspected the Applicant's car, and onthis occasion the Applicant was taken through the streets inhand-cuffs. On the last day of the trial the Applicant's wife confirmedhis contention that he had come home already before one o'clock, andeven mentioned the fact that he had taken somebody along in his car.At the end of the trial, the Applicant was acquitted by the jurors bya vote of four against four.The representative of the Public Prosecutor announced immediately aplea of nullity (Nichtigkeitsbeschwerde) and upon his request, theRegional Court ordered that the Applicant should remain in detentionin accordance with Article 284, paragraph 3, of the Code of CriminalProcedure. An appeal lodged by the Applicant against this decision, wasrejected by the Court of Appeal on .. December, 1962.On .. May, 1963, after having received written and oral submissionsboth from the prosecution and from the defence, the Supreme Court(Oberster Gerichtshof) set aside the acquittal and ordered a new trialto be held before the Regional Court (Landesgericht) in Vienna. TheSupreme Court found that the Regional Court had committed an error whenit refused to hear, after the Applicant's wife had confirmed herhusband's defence, all the police officers who had examined herpreviously. Following this decision, the Applicant was transferred fromthe Korneuburg prison to Vienna.Before the second trial, the Applicant requested new expertinvestigations to be carried out by different experts. On .. September,1963, the Court refused to appoint new experts.During the second trial which took place from .. to .. September, 1963,certain additional investigations requested by the Applicant were madeby the experts heard already at the first trial. At this trial theApplicant was convicted by a vote of six against two and sentenced tolifelong severe imprisonment (lebenslanger schwerer Kerker) with oneday of detention in darkness (Dunkelhaft) every year on the date of thecrime.The Applicant requested several corrections of the Court record of thetrial and with a few exceptions, these corrections were granted by theCourt.On .. October, 1963, the Applicant lodged both a plea of nullity(Nichtigkeitsbeschwerde) against the conviction, and an appeal(Berufung) against the sentence imposed. In the plea of nullity theApplicant submitted that the trial court had violated the law byrejecting several of his requests to take further evidence.The Applicant had requested, in particular1) to hear as a witness the police officer who had directed theinvestigation against him, Major W., and to have examined the casts offootprints taken by the police on the scene of the crime and to havethen compared with his own shoes;(2) to have examined by an expert all the woollen blankets used by himduring the first night of his arrest as being the possible source ofhis finger-nail dirt, allegedly stemming from the victim's wollen vest;(3) to hear a number of neighbours of his, with whom he had gone towork in the same bus on the morning after the crime and who would beable to testify that the Applicant had not been together with anotherwitness, V., allegedly travelling in a different bus, who had testifiedthat the Applicant had told him on the bus on that morning that he hadcome home in the night only at two o'clock. The Applicant had alsorequested to hear these neighbours on the question whether he hadtalked at all with another witness, U., who also said he had heard fromthe Applicant, however, in the bus indicated by the Applicant himself,that he had come home at two o'clock. Because of the contradictionsbetween the evidence given by V. and U., the Applicant had also laidcharges of perjury against them on .. December, 1962, but the chargeshad been dismissed by the Regional Court in Korneuburg on .. February,1963;(4) to hear his doctor who had treated him at the time of the crime foracute rheumatism, as a witness that he had been physically incapableof carrying and lifting the body of the victim as alleged;(5) to hear the policeman who was responsible for the report on hisreputation read out in court;[/align]