The Committee of Ministers,
Having regard to Article 32 (art. 32) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms (hereinafter
called "the Convention");
Having regard to the report drawn up by the European Commission of
Human Rights, in accordance with Article 31 (art. 31) of the
Convention, and relating to the Applications lodged respectively by
Herbert Ofner (No. 524/59) and Alois Hopfinger (No. 617/59), Austrian
nationals, against Austria;
Whereas the Commission transmitted the said report to the Committee of
Ministers on 10th December 1962, and whereas the period of three months
provided for in Article 32, paragraph 1 (art. 32-1) of the Convention
has elapsed without the case having been brought before the Court in
pursuance of Article 48 (art. 48) of the Convention;
Whereas, in their Applications, the applicants complain of several
violations of Article 6 (art. 6) of the Convention alleged to have
taken place during judicial proceedings instituted against each of
them separately in Austria, as a result of which they were convicted
of certain criminal offences;
Whereas the Commission, having rejected part of each of the
Applications as inadmissible, retained as admissible, with the purpose
of establishing the facts and formulating an opinion regarding them,
the following issues:
1. As regards the Application of Ofner:
(i) Whether or not the provisions of the Austrian Code of Criminal
Procedure (as amended and supplemented by the Act of 31st December 1877)
applied by the Supreme Court of Austria in the case of Herbert Ofner
were compatible with Article 6, paragraphs (1) and (3), sub-paragraph (c)
(art. 6-1, art. 6-3-c), of the Convention (both parties not
represented in the proceedings before the Supreme Court)?
(ii) Whether or not the rights to which the Applicant was entitled
under Article 6, paragraph (3), sub-paragraphs (a) and (b) (art. 6-3-a,
art. 6-3-b), of the Convention had been respected by the Regional
Court (change in legal classification)?
2. As regards the Application of Hopfinger:
Whether or not the provisions of the Austrian Code of Criminal
Procedure (as amended and supplemented by the Act of 31 December 1877)
applied by the Supreme Court of Austria in the case of Alois Hopfinger
were compatible with Article 6, paragraphs (1) and (3),
sub-paragraph (c) (art. 6-1, art. 6-3-c), of the Convention (both
parties not represented in the proceedings before the Supreme Court)?
Whereas the Commission, after ordering the joinder of these two cases
in accordance with Rule 39 of its Rules of Procedure, in its Report
expressed the opinion:
(a) regarding the proceedings before the Regional Court in the case
of Herbert Ofner, (question of change in legal classification)
that the Applicant was duly informed of the nature and cause of the
accusation against him, and he had adequate time and facilities for
the preparation of his defence;
(b) regarding the proceedings before the Supreme Court in the cases
of Herbert Ofner and Alois Hopfinger, (question of both parties not
being represented in the proceedings)
1. What is generally called "the equality of arms", that is the
procedural equality of the accused with the public prosecutor, is an
inherent element of a "fair trial";
2. It follows from the findings of the facts that in each of the
two cases the Applicant's memorial, stating the grounds of the appeal
and the plea of nullity, was submitted to the public prosecutor, who
refrained from filing a counter-memorial. In this state the
case-file was submitted to the Supreme Court. So far, complete
equality between the accused and the prosecutor was observed;
3. On the basis of the documents of the case, the Judge Rapporteur
wrote his report without hearing arguments from any side and without
leaving room for any outside influence. Complete equality between
the parties was maintained;
4. The report of the Judge Rapporteur was then submitted to the
Attorney-General (Generalprokurator) for his observations. If now the
Attorney-General had tried to influence the decision to the
disadvantage of the accused without the latter being heard, it might
have been doubtful whether the principle of equality would have been
observed. But this did not happen. What happened was simply that the
Attorney-General in one single word ("einverstanden") expressed his
agreement with the report. In these circumstances his intervention
cannot reasonably be said to violate the principle of equality;
5. The adoption by the Supreme Court of the draft decision took
place at a non-public sitting in which neither of the parties were
represented. Thus the principle of equality was not infringed;
Whereas, the Commission, in conclusion, was of the unanimous
opinion that the provisions of the Convention had not been violated in
the cases under examination;
Whereas these two cases are analogous;
Agreeing with the reasoning of the Commission;
Voting in accordance with the provisions of Article 32 paragraph (1)
(art. 32-1) of the Convention,
Joins the cases of Herbert Ofner (No. 524/59) and Alois Hopfinger
(No. 617/59);
Decides that in these two cases there has been no violation of
the Convention for the Protection of Human Rights and Fundamental
Freedoms.