Resolution ResDH(2004)75

concerning the judgment of the European Court of Human Rights of 20 March 200 1 (final on 20 June 200 1 ) in the case of Telfner against Austria

(Adopted by the Committee of Ministers on 22 December 2004 at the 906th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 1 1 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Telfner case delivered on 20 March 200 1 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 3350 1 /96) against Austria , lodged with the European Commission of Human Rights on 22 August 1 996 under former Article 25 of the Co n vention by Mr Thomas Telfner , an Austria n national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 1 1 , declared admissible the complaint that, in criminal proceedings against the applicant in 1 996, the courts failed to respect the presumption of innocence;

Whereas in its judgment of 20 March 200 1 the Court, unanimously:

- held that there had been a violation of Article 6, paragraph 2, of the Convention;

- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 20 000 Austria n schillings in respect of non-pecuniary damage and that simple interest at an annual rate of 4% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant ' s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 20 March 200 1 , having regard to Austria ' s obligation under Article 46, paragraph 1 , of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 20 June 200 1 , within the time-limit set, the government of the respondent state had paid the a p plicant the sum provided for in the judgment of 20 March 200 1 ,

Declares, after having examined the information supplied by the Government of Austria , that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH(2004)75

Information provided by the Government of Austria during the examination of the Telfner case

by the Committee of Ministers

Following the judgment of the European Court of Human Rights in this case, the Supreme Court quashed the applicant ' s conviction and ordered the reopening of the trial by a decision dated 27 November 200 1 , based on Article 363, paragraph a., of the Code of Criminal Procedure. After the referral of the case back to the competent district court, the State Attorney withdrew his petition to prosecute. As a result, the criminal proceedings against the applicant were discontinued.

Furthermore, the Government of Austria is of the opinion that, considering the direct effect attributed to the Convention and the European Court ' s case-law by all Austria n supreme judicial authorities (see the Supreme Court ' s decision concerning reopening of impugned proceedings and, more generally, Resolution DH(93)60 in the case of Oberschlick No. 1 , adopted on 1 4 December 1 993 and Resolution ResDH(2002)99 in the case of Ahmed, adopted on 7 October 2002), new similar violations of the Convention could be avoided for the future by drawing the attention of the competent domestic authorities to the requirements of the Convention as set out in the present judgment.

Accordingly, the judgment of the European Court was published in “ Österreichische Juristenzeischrift (ÖJZ)” No. 1 6 of 200 1 , accessible to all judges and state attorneys and in the “ Registry of general principles of the automobile-club (ÖAMTC)” No. 1 1 2/200 1 . In addition, copies of the European Court ' s judgment were sent to all authorities directly concerned by the present case.

The Government of Austria considers that in view of the individual and general measures adopted, Austria has fulfilled its obligations under Article 46, paragraph 1 , of the Convention.