The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the judgment of the European Court of Human
Rights in the Pfeifer and Plankl case delivered on
25 February 1992 and transmitted the same day to the Committee
of Ministers;
Recalling that the case originated in an application against
Austria lodged with the European Commission of Human Rights on
23 September 1983 under Article 25 (art. 25) of the Convention
by Mr Heinrich Pfeifer and Mrs Margit Plankl, Austrian nationals,
who complained inter alia of the lack of impartiality of judges
in a criminal procedure against the first applicant and of the
censorship of correspondence between the applicants while both
in detention on remand;
Recalling that the case was brought before the Court by the
Commission on 12 November 1990 and by the Government of Austria
on 6 February 1991;
Whereas in its judgment of 25 February 1992 the Court:
- held, by eight votes to one, that it had jurisdiction
to examine the Government's preliminary objections;
- by unanimous votes, joined to the merits the objection
relating to Mr Pfeifer's complaint based on Article 6,
paragraph 1 (art. 6-1), but dismissed it after
examining the merits;
- held, unanimously, that there had been a violation of
Article 6, paragraph 1 (art. 6-1);
- held, unanimously, that there was no need to examine
the objection relating to the alleged violation of
Article 8 (art. 8) in the case of Mr Pfeifer;
- held, unanimously, that there had been a violation of
Article 8 (art. 8) with respect to both applicants;
- held, unanimously, that the respondent State was
within three months to pay 20 000 Austrian schillings
to Mr Pfeifer and 1 500 Austrian schillings to
Mrs Plankl, and 60 000 Austrian schillings to the two
applicants jointly, in respect of costs and expenses;
- dismissed, unanimously, the remainder of the claim for
just satisfaction;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of
the Convention;
Having invited the Government of Austria to inform it of the
measures which had been taken in consequence of the judgment of
25 February 1992, having regard to its obligation under
Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of Austria gave the Committee
information about the measures taken in consequence of the
judgment, which information appears in the appendix to this
eesolution;
Having satisfied itself that the Government of Austria
has paid the applicants the sums provided for in the judgment,
Declares, after having taken note of the information
supplied by the Government of Austria, that it has exercised its
functions under Article 54 (art. 54) of the Convention in this
case.
Appendix to Resolution DH (92)64
Information provided by the Government of Austria
during the examination of the Pfeifer and Plankl case
by the Committee of Ministers
By circular (Erlass) of 20 June 1992 the Federal Ministry
of Justice drew the attention of the Appeal Court Presidents and
of the General Prosecutors to the consequences to be drawn from
the violation of Article 6, paragraph 1 (art. 6-1), found by the
Court in the present case and invited them to follow in future
the following principles:
a. The question of the possible disqualification of all
trial judges must be clarified before a date for the
hearing is set.
b. If one of the judges called to sit is to be
disqualified, the accused must as a matter of principle
(grundsätzlich) not be invited to waive his right to apply
for disqualification of that judge.
c. Only in exceptional cases, for example when it would be
in the accused's interest not to have the proceedings
delayed, a waiver from the accused to apply for
disqualification could be envisaged, on the condition that
minimum procedural guarantees be respected, for example,
interrogation by a judge not concerned by the
disqualification and in the presence of the accused's
lawyer.
The sums awarded to the applicants by the Court were paid
on 5 May 1992.
Full & Egal Universal Law Academy