THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33382/96 
by Josef FISCHER 
against Austria

The European Court of Human Rights (Third Section), sitting on 20 March 2001 as a Chamber composed of

Mr J.-P. Costa, President
 Mr W. Fuhrmann
 Mr L. Loucaides
 Sir Nicolas Bratza
 Mrs H.S. Greve
 Mr K. Traja
 Mr M. Ugrekhelidze, judges
and  Mrs  S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 29 May 1996 and registered on 7 October 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 6 January 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1939 and living in Vienna. He is represented before the Court by Mr A. Adam, a lawyer practising in Vienna.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 12 May 1995 the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen) convicted the applicant, inter alia, under Section 164 of the Penal Code (Strafgesetzbuch), on numerous counts of handling stolen goods (Hehlerei) and sentenced him to three years’ imprisonment. The Regional Court found that the applicant, who dealt with antiques, had bought, between 1986 and 1988, antiques which had been stolen in the north of Italy.

On 14 September 1995 the applicant filed a plea of nullity and an appeal against sentence with the Supreme Court (Oberster Gerichtshof).

On 12 October 1995 the Procurator General (Generalprokurator) submitted the following comments on the applicant’s plea of nullity:

"In the view of the Procurator General, the plea of nullity of the accused Josef Fischer can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested."

On 21 November 1995 the Supreme Court dismissed the applicant’s plea of nullity and, as regards the appeal against sentence, referred the case to the Vienna Court of Appeal (Oberlandesgericht). On 23 January 1996 the Court of Appeal dismissed the applicant’s appeal.

B.  Relevant domestic law

Under Section 285 (d) § 1 of the Code of Criminal Procedure (Strafprozessordnung), a plea of nullity may be rejected by the Supreme Court after deliberations in private if the Supreme Court unanimously finds that the complaint should be dismissed as manifestly ill-founded without any need for further deliberation.

Section 35 § 2 of the Code of Criminal Procedure, as in force at the relevant time, reads as follows:

"If the public prosecutor at an appellate court submits observations on an appeal on grounds of nullity ..., the appellate court shall communicate those observations to the accused (person concerned), advising him that he may submit comments on them within a reasonable period of time that it shall determine.  Such communication may be dispensed with if the prosecutor confines himself to opposing the appeal without adducing any argument, if he merely supports the accused or if the accused’s appeal is upheld."

Since the 1996 Criminal Law Amendment Act (Strafrechtsänderungsgesetz) the last sentence of Section 35 § 2 reads as follows:

“Such communication may be dispensed with if the prosecutor merely supports the accused or if the accused’s appeal is upheld."

COMPLAINT

The applicant complains under Article 6 of the Convention that the Supreme Court decided on his plea of nullity after having obtained submissions by the Procurator General without informing him of these submissions or giving him an opportunity to react to them.

THE LAW

The applicant complains that the Supreme Court decided on his plea of nullity after having obtained the submissions of the Procurator General without informing him of these submissions or giving him an opportunity to react to them. He relies on Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government submit that the Procurator General is a party sui generis and does not have a prosecuting function. Therefore it is not, strictly speaking, an opponent of the applicant. In any event, the brief submissions of the Procurator General did not amount to comments on the facts of the case or arguments. Thus, there is no breach of the principle of equality of arms in the present case.

This is disputed by the applicant.

The Court considers that the application raises complex issues of law and fact under Article 6 § 1 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the remainder of the application.

S. Dollé J.-P. Costa 
 Registrar President

JOSEF FISCHER DECISION


JOSEF FISCHER DECISION