C-299/95

KREMZOW v AUSTRIAN STATE

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 6 February 1997

I — Introduction was charged with murder and found guilty at first instance, to defend himself personally on appeal.

1. In this case, the Court has been asked to rule whether the European Convention on Human Rights constitutes in its entirety an integral part of Community law and whether 3. According to the appellant, he is entitled the Court itself therefore has jurisdiction to to compensation under Article 5(5) of the interpret all the provisions of the Conven­ Convention because he was unlawfully tion in the context of a reference for a pre­ deprived of his liberty. The national court liminary ruling pursuant to Article 177 of points out in this connection that on 3 April the EC Treaty. 1995 the Oberster Gerichtshof (Supreme Court) dismissed an application made by Dr Kremzow for a reduction in the sentence fol­ lowing the aforementioned judgment of the Strasbourg court. II — Facts

4. Is the legal entity against which pro­ ceedings have been brought for State liability entitled to plead that the B. The following further questions are punishment would have been on no referred to the Court of Justice of the different a scale if the violation of European Communities for a prelimi­ Article 6 of the Convention found nary ruling only in the event that Ques­ by the European Court of Human tion A is answered in the affirmative — Rights had not occurred, although at least as regards Articles 5 and 6 of the the Austrian law of criminal pro­ Convention: cedure — to date — does not pro­ vide in such cases for proceedings for the revision of a judgment or other amending proceedings by means of which the procedural error could have been remedied? 1. Are national courts bound by judg­ ments of the European Court of Human Rights finding violations of the Convention at least in so far as they may not take the view that the conduct of State institutions to 5. Does the burden of proving the which the finding of a violation causal connection between the viola­ relates was in accordance with the tion of Article 6 of the Convention Convention? and the deprivation of the plaintiff's

I - 2632

KREMZOW v AUSTRIAN STATE

liberty fall on the plaintiff or does Statute and of the Rules of Procedure (see the burden of proof in respect of this the first paragraph of Article 19 and Article defect fall on the defendant legal 29 of the Statute, and Article 37(1), Article entity?' 38(3) and Article 58 of the Rules of Pro­ cedure) confirm that a party and his counsel cannot be one and the same person. More­ over, as the Court observed in Vaupel v Court of Justice ..., 1neither the Statute nor the Rules of Procedure of the Court of Jus­ III — Discussion of the dispute tice provide any derogation from or excep­ tion to that rule.' 2

I - 2633

OPINION OF MR LA PERGOLA — CASE C-299/95

main proceedings: a principle enshrined in Court. It is therefore appropriate to refer Article 104(2) of the Rules of Procedure. For thereto, albeit briefly. instance, the Court has interpreted that rule as meaning that a party to the main proceed­ ings may appear in the proceedings person­ ally and produce, without his being legally represented, his own pleadings and make written and oral observations where that possibility is allowed in the national pro­ The Court has held on a number of occa­ 3 ceedings. 4 sions that, 'as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that pur­ pose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines sup­ plied by international treaties for the protec­ I therefore consider that the exception pro­ tion of human rights on which the Member vided for in Article 104 of the Rules of Pro­ States have collaborated or of which they are cedure enables Dr Weh to submit observa­ signatories (see, in particular, the judgment tions to the Court, even though they were in Case 4/73 Nold v Commission [1974] produced without his being assisted and rep­ ECR 491, paragraph 13). The European resented by a lawyer appointed for that pur­ Convention on Human Rights has special pose. This conclusion is based on the fact significance in that respect.... It follows that, that the intervener was allowed to put his as the Court held in its judgment in Case case in person in the main proceedings. 5/88 Wachauf [1989] ECR 2609, paragraph 19, the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guar­ 5 anteed.'

out only in regard to provisions connected imposed by national law on persons commit­ with Community law, of which the Court is ting the offence in question with the provi­ the supreme interpreter according to the sion providing for the crime, which, as I Treaty. have already observed, has no features con­ necting it with Community law. Moreover, were the appellant's reasoning to be fol­ lowed, all sanctions consisting of terms of imprisonment or detention laid down by the legislation of a Member State would auto­ matically fall within the field of application of Community law in so far as they deprived the accused or the sentenced person of his personal liberty, on the ground that they The infringement of the rights of the defence precluded, or at any event limited, enjoy­ found by the Court of Human Rights and ment of the rights and facilities which Com­ the damages claim at issue in this case are munity law confers on the person concerned. concerned with the conduct of criminal pro­ ceedings which have no point of contact with Community law. In point of fact, the proceedings arose because of a ruling that a crime had been committed under Austrian law as a result of conduct which has nothing to do with Community provisions or with national provisions in any way related with Community law. For that reason, I consider that the Court has no jurisdiction to con­ sider the questions referred by the national court. I cannot see what foundation that argument can have. The Community legal order is not 7 all-embracing and hence, generally, it does not interfere with the criminal law of the Member States. Moreover, if the appellant's argument were taken into account, criminal sanctions consisting of imprisonment and detention would in any event constitute dep­ rivation of the fundamental freedoms enshrined in the Constitutions of the Mem­ 7. The appellant's argument that the depri­ ber States, even before they could be consid­ vation of his personal liberty constitutes a ered contrary to the exercise of the Commu­ serious impediment to his exercising the nity freedoms. However, such sanctions are rights and freedoms conferred on Commu­ compatible with constitutionally guaranteed nity citizens by the European Union's legal freedoms in so far as they perform, in the order is of no assistance to him either, in my general interest of the community, a specific view. On the basis of that reasoning, the function of protecting the values violated by appellant maintains that the Court should the unlawful acts in question. declare that it has jurisdiction to entertain the case and hence to interpret the Conven­ tion. That argument cannot be accepted because it confuses the criminal sanction 7 — Case 203/80 Casati [1981] ECR 2595.