THE FACTS

The Applicant, who was born in 1924 in A., is at present living in

Germany. He is represented by Dr. Hans Gürtler of Vienna.

On ... 1961, the Applicant was convicted by the Regional Court of B.

on charge of having, by evasion of taxes and import duties, violated

the Financial Offenses Act (Finanzstrafgesetz) and sentenced to one

year's imprisonment, subsequent deportation from Austria and a fine

of 1 million Austrian schillings, and, in default of payment, three

months imprisonment.

He was also ordered to make restitution (Wertersatz) of approximately

3.5 million Austrian schillings, or in default of payment ten months

imprisonment. In respect of certain parts of the original indictment,

the Applicant was apparently acquitted either for lack of proof or

following a withdrawal of the charges. The Court had rejected a request

from the lawyer for the defence to call two witnesses named Y. and Z.

The Applicant lodged a joint plea of nullity (Nichtigkeitsbeschwerde)

and appeal (Berufung) and, in respect of the former plea, invoked

Article 281 (4) of the Austrian Code of Criminal Procedure, which

states as follows:

"(1) A plea of nullity may be entered ... only on the following

grounds:

(4) if, during the main proceedings, no decision has been taken on

an application by the complainant or if an interim decision rendered

against his application or opposition has disregarded or applied

incorrectly laws or principles of procedure which must be observed

through a procedure providing for both prosecution and defence;"

On ... 1961 the Public Prosecutor's Office of B. stated that it would

make no counter-statement, and on ... 1961 the case-file was sent

to the Supreme Court.

The member of the Supreme Court designated as Rapporteur transmitted

the case-file to the Attorney-General's Office at the Supreme Court

with the comment that, in accordance with paragraph 290, sub-paragraph

1, of the Code of Criminal Procedure, he was applying for a day to

be fixed for a public hearing. He based his application on the ground

that, in his opinion, there were "material-judicial" grounds for

annulment under paragraph 281, sub-paragraph 11, of the Code of

Criminal Procedure (which had not been invoked in the plea of nullity)

in that the trial Court had made a mistake in law in applying the

provisions of Court had made a mistake in law in applying the

provisions of the Financial Offenses Act instead of those of the Tax

Code. He submitted that this was relevant insofar as the sentence

included deportation of the accused from Federal territory, and that

would be prejudicial to him;  the clauses of the Tax Code properly

applicable to the case in question did not provide for such a measure.

On ... 1961, in a letter addressed to the Attorney-General, Dr.

Gürtler, who had meanwhile been instructed by the Applicant, requested

an oral hearing in order to submit to the Court further arguments in

respect of Article 281 and to show in detail why the refusal by the

lower court to hear the above witnesses obstructed the defence. It was

also pointed out that the grounds of a plea of nullity mentioned in

Article 281 (9 - 11) had not been clearly invoked by the Applicant's

former counsel and that, according to Article 290, the Court should,

ex officio, take these grounds into consideration; this would

necessitate an oral hearing. Dr. Gürtler's letter contained an exposé

of the issues relating to the plea of nullity, as well as to the

appeal, and he intended to develop his arguments further at the hearing

requested by him.

On ... 1961, the Attorney-General's Office, after examining the legal

position, sent the file to the Supreme Court with its "Croquis", in

which it stated its opinion, given as though in open court, that the

accused's plea of nullity should be rejected; it also pointed out that

there was an obvious ground for annulment of the conviction which had

not been invoked by the defence or mentioned by the Judge-Rapporteur.

This was that the trial Court had imposed a fine of 1,000,000

Schillings, although, under the provisions of the Tax Code which should

have been applied, the maximum fine applicable was 600,000 Schillings.

It also stated that grounds for annulment under 281, sub-paragraphs 10

and 11, of the Code of Criminal Procedure had been mentioned, which,

under paragraph 290, sub-paragraph 1, of the Code of Criminal

Procedure, must automatically be applied in the accused's favour.

The Attorney-General, having regard no doubt to his duty under

paragraph 33 of the Code of Criminal Procedure, examined Dr. Gürtler's

application of ... 1961 and sent the Supreme Court a letter with a copy

of the application, stating that he saw no reason to intervene. Insofar

as the petition contained points relevant in law - even though they

made no difference to the legal position of the accused - they were

taken into account in the parts of the "Croquis" dealing with the

"material-judicial" aspects of the case.

In a decision dated ... 1961, the Supreme Court, despite the original

application of the Judge-Rapporteur for a day to be fixed for a public

hearing (agreed to by the Attorney-General's Office) and without

further consultation of the Attorney-General's Office, rejected the

plea of nullity as manifestly ill-founded. This decision was taken in

the absence of the Attorney-General and of the accused and his counsel.

The Court announced at the same time that a separate order would

be made fixing a day for a public hearing since it was apparent that

the law had been wrongly applied to the prejudice of the accused,

and proceedings should therefore go forward as though the plea of

nullity had been based on paragraph 281, sub-paragraphs 10 and 11,

of the Code of Criminal Procedure. On ... 1961, this hearing was

fixed for ... 1961 and counsel for the defence was so informed in

a writ dated ... 1961.

The record of the public hearing of ... 1961 shows that counsel for the

defence gave his views on the case and made submissions similar to

those in his written statement to the Attorney-General's Office. The

representative of the Attorney-General's Office took up a position on

the lines of that set out in the "Croquis".

The oral decision of ... 1961, ordering the adjournment, was based on

a written draft which shows that counsel for the defence took the

opportunity to submit legal considerations not contained in his

petition to the Attorney-General's Office. The decision therefore had

to be deferred sine die to allow a thorough examination of the

defence's submissions. After a further session on ... 1961, the Supreme

Court delivered the following judgment on ... 1961 at a public hearing:

"The decision of the Regional Court of B. of ... 1961 by ..., which

otherwise remains unchanged, is, on the contrary, to be set aside

in accordance with Article 290, paragraph 1 of the Code of Criminal

Procedure, insofar as it concerns the legal qualification of the acts

which have been attributed to the accused, X., in the conviction and

which are mentioned in the beginning of the decision under paragraphs

1) and 2) and accordingly also, insofar as concerns the pronouncement

of the sentence;  it is in accordance with Article 288, paragraph 2,

rev. 3, of the Code of Criminal Procedure, by a partial amendment of

the decision, to be decided as follows:

The offenses of which the accused, X., was found guilty by the Regional

Criminal Court of B. in its judgment of ... 1961, and described in

detail in paragraphs 1) and 2) thereof, constitute tax evasion

(Steuerhehlerei) within the meaning of paragraph 403, sub-paragraphs

1 and 3, and paragraph 401 b, sub-paragraph 1, of the Tax Code, to one

year's imprisonment and to a fine of 500,000 Schillings (as against

1,000,000 Schillings in the original sentence) or to six weeks

imprisonment in default of payment (as against three months

imprisonment in the original sentence) and, further, under paragraph

401, sub-paragraph 2, of the Tax Code, to make restitution amounting

to 3,518,600 Schillings for those goods which cannot be recovered, or

to six months imprisonment in the original sentence) and, under

paragraph 389 of the Code of Criminal Procedure, he is ordered to pay

the costs of the proceedings and of execution."

In the decision on his appeal, the accused was referred to the decision

on his plea of nullity.

The allegations made by the Applicant

The Applicant alleges violations of Article 6, paragraphs (1) and (3)

(b) and (c).

The submissions of the Parties

Whereas the submissions made by the Applicant's counsel, Dr. Gürtler,

may be summarised as follows:

Before the hearing by the Supreme Court of the plea of nullity, the

Attorney-General submitted to the Court a so-called "Croquis".

The croquis is, as explained in a decision of the Supreme Court of 6th

March 1957, "an expression not recognised by law and only used to

express that it is a tentative draft of an opinion for the hearing".

Dr. Gürtler has traced the development of the relevant provisions

as follows:

Under the Austrian Code of Criminal Procedure of 23rd May 1873, it is

laid down as a principle that the proceedings on a plea of nullity

lodged by the accused shall be held before the Supreme Court in public

on the day fixed. At this hearing "a member of the Supreme Court

appointed Rapporteur by the President of that Court shall give an

account of the past history of the proceedings" (Article 287 (2) of the

Code of Criminal Procedure) (Strafprozeßordnung) and state the grounds

for nullity put forward by the complainant together with the

contentious points arising from there, but without expressing an

opinion on the decision taken by the lower court. Article 287 (3)

further provides as follows:

"The complainant shall then be called upon to outline the grounds for

the plea and his opponent asked to make a counter-statement. In

allcases the accused or is counsel shall have the right to make the

closing statement."

The scope of this basic regulation was restricted by the Criminal

Amendment Act of 31st December 1877. The provisions of Articles 3 and

4 of this Act lay down the following procedure:

"Article 3

(1) The Supreme Court shall deliberate on a plea of nullity submitted

to it in accordance with Article 285 (2) of the Code of Criminal

Procedure at a session in camera, after hearing the Attorney-General

or the Rapporteur selected by the President of the Supreme Court from

among the members of that Court proposes one of the decisions referred

to in Articles 4, 5 or 6.

(2) In all other circumstances a public court sitting to deal with the

case shall be ordered in accordance with the relevant provisions of

Article 286 of the Code without any decision to this effect being

required on the part of the Supreme Court.

Article 4

(1) At the deliberation in camera, the plea of nullity may be dismissed

de plano:

1. Where it should already have been dismissed by the Court of first

instance according to Article 1 of this Act, or where the ground for

nullity invoked has already been disposed of by a decision of the

Supreme Court on that case;

2. Where the plea of nullity is based on the nullity grounds set out

in Article 281, (1 to 8), or in Article 345, (1 to 4), of the Code of

Criminal Procedure and the Supreme Court unanimously considers that it

should be rejected without further deliberation as being manifestly

ill-founded;

(2) The above-mentioned decision can be taken at a deliberation in

camera even if, owing to other grounds for nullity or because the

Supreme Court wishes to reserve for itself the exercise of the powers

granted it under paragraph (1) of Article 290 of the Code, a public

court sitting should be called to deal with the case."

The provisions of the Amendment Act have only been incorporated in the

Code of Criminal procedure in the last few years. This was done in the

"Code of Criminal Procedure 1960" which was promulgated by virtue of

Article 1 of the Promulgating Law (Official Gazette [BGB1] No. 114/47),

and published in the official announcement by the Federal Government

on 20th April 1960 (BGB1. No. 98/47). Article 3 of the old Act new

appears as Article 265 c, and the old Article 4 as Article 265 d of the

present Code of Criminal Procedure.

As the nullity plea of the accused was based on purely formal grounds,

it could, under Austrian municipal law, be dismissed de plano at a

session in camera if, in accordance with Article 4 (1) sub-paragraph

2, of the Criminal Amendment Act, the Supreme Court unanimously

considered that it should be "rejected without further deliberation as

being manifestly ill-founded". It is possible and permissible for such

a deliberation in camera to be ordered, however, only so long as the

conditions of Article 3 (1) of the Amendment Act are fulfilled. Even

if the Rapporteur of the Supreme Court requests a decision according

to paragraph 4, proceedings in camera may be ordered if, and only

if, the Attorney-General has first been heard for that purpose (i.e.

after he has been heard);  thus the Attorney-General must also have an

opportunity to say whether, in his opinion, the nullity plea "should

be rejected without further deliberation as being 'manifestly

ill-founded'".

Should any one of the conditions in Article 3, paragraph 1 not be

fulfilled, a public hearing must be held.

It is perfectly clear from the origin, meaning and purpose of the

clause, as well as from the wording of the Act, that the provision

governing those cases, in which immediate dismissal of a nullity plea

at a session in camera is permissible, is a wholly exceptional

application and must be very strictly interpreted. Article 3 (2) of the

Criminal Amendment Act orders that "in all other circumstances", that

is to say without exception, unless the conditions of Article 3 (1) of

the Amendment Act of 1877 are fulfilled, "a public session shall be

ordered."

Dr. Gürtler describes the procedure usually followed in the following

terms:

"The proceedings on a plea of nullity lodged by the accused are so

regulated that the plea of nullity is lodged in the court of first

instance, namely, in the case at hand, the Regional Court of B. The

Court then presents a report on the plea of nullity to the

representative of the Public Prosecution who is attached to the

Regional Court and has the right to prepare counter-statements to this

plea of nullity. After presenting these counter-statements, or after

the appointed period has run out, the files are presented by the

Regional Court to the Supreme Court sitting as the court of second

instance.

Up to this step, the right of treatment on equal footing is protected;

a counter-statement presented by the office of the Public Prosecution

on a legal instrument is an item of the court file and is subject

to examination by counsel for the defence. This uniform and just

treatment is protected by law for the accused, if and as long as it

comes to a public hearing on the plea of nullity in which, according

to the clear wording of the law, counsel for the defence and the

Attorney-General are treated equally and both for the first time - and

only in the trial - have the possibility to speak. In this trial,

however, a facility sneaked in not provided for by law, against which

the Austrian Bar Association has been fighting for many years, namely,

this "Croquis" of the office of the Attorney-General.

In this "Croquis", the Attorney-General summarises the points of view

which he intends to present in court on the day of trial. This croquis

has developed, however, in practice, to be a regular draft of the

decision. Indeed, according to custom, the croquis was taken over

verbatim into the body of the decision, whereby it is impossible for

the defence to ascertain if and in what measure this applied in the

present case. Such croquis are prepared in the same manner and with the

same effect by the office of the Attorney-General in such cases in

which there is no trial at all, and in which the plea of nullity of the

defence is rejected."

Dr. Gürtler also refers to the following statement made by Dr.

Liebscher and quoted by Dr. Gürtler during the oral hearing before the

Sub-Commission in the four Austrian cases:

"In the sessions in camera, on the other hand, the position of the

accused is considerably more unfavourable, because only the written

pleadings are before the Court;  the accused himself, or his

representative, is not heard.

Therefore it will accord far better with logic, as well as with equity,

to give counsel for the defence a sight of those written opinions of

the Attorney-General which are prepared for the session in camera".

At those proceedings, Dr. Gürtler himself added:

"At a session in camera, the Attorney-General alone receives a hearing,

in a way for which the law makes no provision. These are back-stage

mysteries of criminal procedure which the defence only discovers by

chance and cannot check because scrutiny of the records is

unwarrantably refused. And yet, it is at sessions in camera that the

interests of the defence and the accused are particularly at stake.

In all pleas of nullity decided in camera, the Attorney-General, it

transpires, is heard by the Supreme Court as follows:

Either he is handed the case-file and prepares a "Croquis" which is in

reality a draft decision and is accepted in many cases as the judgment,

as was shown and expressly admitted on the occasion of Barristers' Day,

or the Judge-Rapporteur of the Supreme Court prepares a draft decision

- and sends it to the Attorney-General. The Attorney-General either

agrees or disagrees with it. In neither case is the defence informed.

What he does, and what happens then, cannot be checked: it remains

secret. But he does get the draft decision."

Dr. Gürtler adds that the Attorney-General is bound by directives from

the Minister of Justice. In this respect he submits that contacts

between independent judges and administration officials made before

the taking of a court decision, "open a source of danger for the

independence of adjudication. This is especially so when such contact

is beyond any possibility of control by the defence."  He refers to

decision No. 434/58 (Yearbook, Volume 2, page 354) in which the

Commission held:

"The rights to a fair hearing guaranteed by Article 6, paragraph 1, of

the Convention, appear to contemplate that everyone who is a party to

civil proceedings shall have a reasonable opportunity of presenting his

case to the Court under conditions which do not place him under a

substantial disadvantage vis-à-vis his opponent."

And adds that this principle must apply to criminal proceedings with

the same force.

Dr. Gürtler then deals with the facts of the present case:

He submits that, on ... 1961, the Attorney-General received from the

Supreme Court the case-file on the basis of which he prepared a written

opinion, "the Croquis", which he submitted to the Court on ... 1961 and

which, either in extenso or in an amended form, constituted the

decision adopted by the Court in a closed session and in the absence

of the defence.

He points out that the croquis was supplied only on the assumption and

condition that an oral hearing would be held to deal with the plea of

nullity lodged by the accused on the grounds invoked under paragraph

4 and, if appropriate, also under paragraph 5 of Article 281 of the

Code of Criminal Procedure.

The croquis was not produced at the hearing and was not made available

to the defence for the submission of a reply or objection as no public

hearing was ever held. The croquis which was produced in connection

with the plea of nullity of the accused (Article 281, paragraphs 4 and

5, of the Code of Criminal Procedure) has, moreover, not yet been seen

by the defence.

As Applicant's counsel explained at the Austrian Barristers'Conference,

1958, in connection with the problem of the "Attorney-General's

Croquis", the Attorney-General hopes to influence the decision of the

Supreme Court, to which not the slightest objection is raised, as the

plea of nullity of the defence serves the same purpose. The difference

lies only in the fact that the Attorney-General's Office is informed

of what is contained in the written plea of nullity of the defence. The

prosecution's answer to this in the croquis becomes known to the

defendant either too late or not at all. It is too late if the croquis

is produced only at the oral hearing. The defendant is then at a

distinct disadvantage because the hearing is prepared on the basis of

the croquis by the Rapporteur and the President of the Court; the

defence is not informed at all if, as in the present case, no oral

hearing is held and the plea of nullity is rejected at a session in

camera.

He submits that the Attorney-General also prepared a "croquis" on

the questions dealt with at the oral hearing in ... 1961.

After receiving the summons to the hearing fixed for ... 1961, together

with the notice of the dismissal of the accused's plea of nullity at

a non-public sitting, counsel for the defence would have had a suitable

opportunity of acquainting himself with the "croquis".

The Supreme Court still refuses today to allow any inspection of the

"croquis". The Attorney-General agreed, however, to allow counsel for

the defence to inspect that part of the "croquis" which dealt with the

material grounds of nullity (Article 281, paragraphs 9 - 11, of the

Code of Criminal Procedure). In accordance with that practice, the

Attorney-General, following a conversation with counsel for the defence

at which the latter requested authorization to inspect the "croquis",

was empowered to grant such authorization with the proviso that it

would not apply to that part of the "croquis" which related to the

formal grounds of nullity. As, however, the "croquis" formed a whole,

it was not possible to divide it up for purposes of inspection, and the

Attorney-General therefore ordered that an official copy be made of the

part of the "croquis" declared available for inspection and that this

copy be communicated to counsel for the defence.

When summoned to the oral hearing on ... 1961, Dr. Gürtler was only

informed that the Court "intended to discuss judicial considerations

within the framework of Article 290". Had it not been for his

possession of the copy of the "croquis", he would not have known the

nature of these considerations.

He states, however, that the copy of the "croquis" which was made

available to him was "incomplete, and decisive statements were

lacking".

Applicant's counsel further points out that the very fact that the

"croquis" is headed by a 'B', shows that it cannot have been complete,

since the 'B' must necessarily have been preceded by an 'A'.

He adds that, in the course of a conversation with Dr. T, General

Counsel and representative of the Attorney-General's Office during the

deliberation on the judgment, the latter drew his attention to the

amnesty clause concerning USA, unobtrusively embodied in the first

State Treaty Implementation Act, and also read out to him the following

passage of the "croquis" concerning the material-legal grounds for

nullity under Article 290 of the Code of Criminal Procedure:

"For the sake of completeness, it must also be pointed out that the

requirements of Article 24, paragraphs 2 and 3 of the Law of 25th July

1956 (Bundesgesetzblatt No. 165/56) are not fulfilled."

Counsel for the defence immediately drew Dr. T's attention to the fact

that, in the official copy of the "croquis" supplied to him, this

sentence was missing and the issue had not been raised during the oral

hearing. He stated that it was necessary for him to have an opportunity

to speak on this point before the Supreme Court. The representative of

the Attorney-General's Office not only agreed to this suggestion, but

personally submitted to the Supreme Court a joint request for the

reopening on this grounds of the proceedings which had already been

closed. The Supreme Court granted this request.

It was obvious that a hurried submission in reply, without adequate

preparation and simply on the basis of a private and incidental

conversation, did not make for a proper defence.

Dr. Gürtler further points out that, in its motives, the text of the

final decision (pages 3 to 8) corresponds word for word with the copy

of the "croquis" (pages 8 to 14) which he received on ... 1961. He adds

that there is a strong presumption that the remainder of the decision

is likewise a verbatim reproduction of that part of the "croquis" which

remained concealed from him.

Whereas the submissions made by the Respondent Government may be

summarised as follows:

It is submitted that the Application was manifestly ill-founded and

should be rejected in accordance with Article 27, paragraph (2) of the

Convention. The "croquis" does not constitute a violation of Article

6, and the question of "equality of arms" did not arise.

On behalf of the Respondent Government, reference is first made to the

general practice regarding the "croquis" system.

The Government admits that, if the Attorney-General's Office agrees

with the Judge-Rapporteur that the case should be heard publicly, it

sends him back the file with its "croquis". In this way, it informs the

Rapporteur, who has in effect requested its opinion on the appeal by

sending the file and plea of nullity, what line its representative

proposes to take at the hearing. The Attorney-General's Office does not

thereby become a party, but simply gives a legal opinion which is not

binding and thus does not commit the Supreme Court in any way. This is

clear from the introductory formula of the "croquis": "... The

Attorney-General's Office considers that, after the oral proceedings,

...".

It cannot be argued that the disclosure in a public hearing of the

"croquis", which has previously been kept secret, has a surprise effect

which prejudices the accused and his defence. It should not be

overlooked that the matter at issue, namely the proceedings in the

trial Court,are known to the accused (and his counsel) at first hand

and not merely from the judgment and record of the trial, on which

alone the Attorney-General has to rely. Therefore no surprise effect

is to be expected from a submission referring to such material,

especially since the Attorney-General's Office is precluded from

producing new facts and evidence in nullity proceedings before the

Supreme Court. The same applies to explanations of the legal position

which are equally accessible to professionalcounsel, in the light of

legislation, judicial practice, jurisprudence and literature, as to the

Attorney-General or his representative.

Hence, no infringement of the right of "equality of arms", or indeed

any encroachment on the rights of the defence, can be deduced from the

fact that the contents of the "croquis" are first made known to the

defence in open court.

In respect of the present Application, the Government submits as

follows:

At no stage of the proceedings in question did the Attorney-General's

Office express the view that the Applicant's plea of nullity should be

rejected in camera.

On the contrary, it agreed with the member of the Supreme Court

designated as Rapporteur that the appeal of the accused should be heard

in public session. The Attorney-General's Office did not learn that the

plea of nullity had been rejected at a closed session until it received

a copy of the Supreme Court's decision in ... 1961. The

Attorney-General was not present at that closed session and the

"hearing" to which he was entitled by law had consisted simply of his

opinion of supporting the Judge-Rapporteur's request for a public

hearing. It's comments on the grounds for nullity mentioned in

paragraph 281, sub-paragraphs 4 and 5, of the Code of Criminal

Proceedings, were intended simply as an opinion on the plea of nullity

for use in public session. They were thus of no avail and hence there

is no question of any infringement of the principle of "equality of

arms".

The Supreme Court is fully entitled, irrespective of the opinion of the

Attorney-General's Office on the question of whether the case should

be heard in open court or in camera, to reject in camera a plea of

nullity based solely on Article 281, Numbers 1 - 8 of the Code of

Criminal Procedure, if it is of the unanimous opinion thatthe plea can,

without need for further deliberation, be rejected as manifestly

ill-founded (Article 285 d, paragraph (1), Number 2 of the Code of

Criminal Procedure).

This was, indeed, the situation in this case;  the statutory right of

the Attorney-General to be consulted before such a step was taken

(Article 285 c, paragraph (1), of the Code of Criminal Procedure)

was respected in that, when returning the file, he expressed the

opinion, which was not, however, binding on the Supreme Court, that the

plea of nullity should be heard in public.

Dr. Gürtler's assertion that he first heard in a conversation during

an adjournment of the Supreme Court proceedings of the existence of the

Federal Act of 25th July 1956, BGBI. Nr. 165/56, which had been in

force since 31st July 1956 and which he hoped (wrongly as it happened)

would favour his case, is open to doubt. It is certainly incorrect for

him to suggest that the Attorney-General's Office, in knowledge of this

law and of its application, had made in the "croquis" observations on

the case which had been concealed from him. In any event, the

Attorney-General is not under any obligation to lead defence counsel

by the hand and a failure to do so does not infringe the principle of

equality of arms.

It is, moreover, to be observed that, once the Applicant's plea of

nullity had been disposed of in camera, the proceedings on this plea

were at an end. The subsequent steps taken to fix a day for a public

hearing constituted an official intervention by the Attorney-General's

Office and the Supreme Court, and were solely in the interests of the

accused.

This intervention was based on paragraph 290, sub-paragraph 1, of the

Code of Criminal Procedure, whereby the Supreme Court must indeed

confine itself to the grounds for annulment expressly invoked or

clearly implied by the applicant. If, however, the Supreme Court is

convinced by any plea of nullity which has been lodged that the

criminal law has been wrongly applied to the prejudice of the accused

(paragraph 281, sub-paragraph 1, points 9 - 11, of the Code of Criminal

Procedure), it is nevertheless bound to proceed ex officio as though

such ground of nullity had been invoked.

In other words, the Supreme Court is obliged by law to give weight in

favour of the accused to any "material-judicial" defects in a judgment

which the defence has failed to invoke. The Attorney-General's Office

is equally bound to do so, as can be seen both from the general

stipulation of paragraph 3 of the Code of Criminal Procedure and from

paragraph 33, which provides that the Attorney-General, even when

considering judgments by criminal courts that already have force by

law, may enter a plea of nullity to ensure that justice is done.

Thus paragraph 290, sub-paragraph 1, of the Code of Criminal Procedure

actually means that the Attorney-General's Office and the Supreme Court

are empowered and obliged to go beyond the literal defence of the

accused and to help him to obtain his rights (favour defensionis).

In the present case, the Attorney-General's Office not only supported

the application of the Judge-Rapporteur for steps to be taken under

paragraph 290, sub-paragraph 1, of the Code of Criminal Procedure, but

also drew attention in its "croquis" to a further ground of nullity

operating in favour of the accused. This had not been raised either by

the Rapporteur or by the former or present counsel for the defence.

In the procedure which has thus been instituted under paragraph 290,

sub-paragraph 1, the Attorney-General's Office and the Supreme Court

have virtually acted in defence of the accused by correcting the

omissions of the legal representative whom he himself had appointed.

This has led to a considerable improvement in his position compared

with the position in which he found himself under the originaljudgment:

he has been spared deportation, while his fine has been reduced by half

a million Schillings and his prison sentence by almost six months.

In conclusion, the Government submits that a convicted person has no

grounds to complain of infringement of the principle of "equality of

arms" where he has been given the opportunity under the law of his own

country to appeal from the judgment of the Court of first instance. The

object of such appeal is, of course, to improve his position by the

reduction or quashing of his sentence. At the same time he knows that

his position cannot as a result of the appeal be made worse.

This is so in the case in question. The Public Prosecutor had refrained

from taking any legal steps and had made no counter-statement to the

accused's plea of nullity. As a result, whatever the Supreme Court

might have decided, the accused could not have found himself in a worse

position than that resulting from the original proceedings.

As to the question, whether or not the copy of the "croquis" received

by Dr. Gürtler was incomplete, the Government submits that Part 'A' of

the "croquis", as prepared by the Attorney-General's Office for the

Court, contained an opinion on the accused's plea of nullity (which

plea was based only on Article 281, Numbers 4 and 5 of the Code of

Criminal Procedure). Part 'B' contained a statement of the extent to

which the judgment of the Court of first instance contained mistakes

of law. These mistakes had not been pleaded, but the Attorney-General's

Office was in duty bound to point them out in the interest of the

accused at the public hearing. But since the plea of nullity was

rejected by the Supreme Court in camera, Part 'A' of the "croquis" had

become obsolete and there was no reason to provide Dr. Gürtler with a

copy.

THE LAW

Whereas the Commission has considered various elements of the system

of the so-called "croquis" as practised at the time of the proceedings

in question;

Whereas, in particular, the Commission has first noted that this system

was not provided for by law but was an administrative practice which

had been followed over a period of years; further, that the primary

object of the "croquis" was apparently to prepare the case for

submission by the Attorney-General's Office to the Supreme Court in

open session;  that, nevertheless, the fact that a copy of the

"croquis" was sent to the Court before the opening of the session

resulted in the Court being aware of the Attorney-General's case before

it was made known to the appellant;  that, indeed, it was possible that

the full contents of the "croquis" might never be made known to the

appellant;

Whereas, on the other hand, the Attorney-General's Office submitted his

case at a hearing at which the appellant was represented and thus had

the possibility to submit arguments in reply;

Whereas, the Commission, after appreciating these various aspects of

the "croquis" system, is of the opinion that the system, as then

practised, might have given rise to an abuse resulting in a prejudice

to the principle of equality of arms and generally to the fair hearing

of an appellant's case;  that consequently the system was on the whole

undesirable;

Whereas the Commission has now been informed that, since, the period

of the proceedings in question, the "croquis" system has been modified

to the extent that the whole "croquis" is made available to an

appellant before the opening of the proceedings at which it is to be

used;

Whereas, although the Commission considers that the "croquis" system

was in general undesirable, the question before it is whether the

application of the system to the present Applicant in the proceedings

before the Supreme Court amounted to a violation of the Convention and,

in particular, of the provisions of Article 6 (Art. 6) in regard to the

guarantee to an accused person of the right of a fair hearing in the

proceedings against him;

Whereas the question whether the trial conforms to the standard laid

down by paragraph (1) of Article 6 (Art. 6-1) must be decided on the

basis ofa consideration of the trial as a whole, and not necessarily

on the basis of an isolated consideration of one particular aspect of

the trial or one particular incident (The "Nielsen" Case, Document A

67.185, page 80).

Whereas it is not denied in the present case that the Attorney-General

submitted a "croquis" to the Supreme Court before the Court began its

consideration of the case against the Applicant; whereas the question

arises whether or not this particular aspect of the trial caused

prejudice to the Applicant's defence, and if so, to such an extent as

to deprive him of a fair hearing in a general evaluation of the case;

Whereas, therefore, the various stages of the proceedings must be

looked at as a whole in arriving at such evaluation;

Whereas it is true that the "croquis" was sent to the Supreme Court

before the non-public session on ... 1961 at which the Applicant's plea

of nullity was rejected; whereas, however, at the subsequent public

hearing of the plea of nullity filed ex officio by the

Attorney-General's Office, the Attorney-General himself invoked legal

provisions which had not been invoked by the Applicant in his own plea

of nullity and which were wholly in the Applicant's favour; whereas the

parts of the "croquis" relating to these provisions were made available

to the Applicant's lawyer before the opening of the proceedings;

Whereas it must also be taken into account that the final outcome of

these proceedings was beneficial to the Applicant in that his sentence

of deportation was set aside, the fine imposed upon him was very

considerably reduced and his sentences of imprisonment in default of

payment of the fine were reduced from ten months to six months and from

three months to six weeks respectively;

Whereas the intervention by the Attorney-General in the present case

was to the benefit of the Applicant; whereas the use of the "croquis"

which was the basis of that intervention is not on the whole to be

considered as having prejudiced his right to a fair trial and thereby

violating the provisions of Article 6 (Art. 6) in that respect;

Whereas it follows that the Application is manifestly ill-founded and

must be rejected in accordance with Article 27, paragraph (2)

(Art. 27-2) of the Convention.

Now therefore the Commission declares this application INADMISSIBLE.