Resolution ResDH (2003)126

concerning the judgment of the European Court of Human Rights of 17 January 2002 (final on 17 April 2002) in the case of Josef Fischer against Austria

(Adopted by the Committee of Ministers on 22 July 2003 at the 847th 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. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the case of Josef Fischer delivered on 17 January 2002 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. 33382/96) against Austria, lodged with the European Commission of Human Rights on 29 May 1996 under former Article 25 of the Co n vention by Mr Josef Fischer , an Austrian national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaint that, in 1995, in criminal proceedings before the Supreme Court concerning the applicant's plea of nullity, the Attorney-General's written observations were not communicated to the defence;

Whereas in its judgment of 17 January 2002 the Court, unanimously:

- held that there had been a violation of Article 6, paragraph 1, of the Convention;

- held that the present judgment constituted in itself sufficient just satisfaction in respect of non-pecuniary damage;

- 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, 40 000 Austrian schillings in respect of costs and expenses 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 17 January 2002, 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 recalled that measures had already been taken to avoid new violations of the same kind as that found in this case (see Resolution DH(97)500 in the case Bulut against Austria), in particular through the entry into force of Act No. 762 of 30 December 1996, according to which the communication of the observations may be dispensed with only if the prosecutor supports the accused or if the accused’s appeal is upheld in full by the tribunal ;

Having satisfied itself that on 31 May 2002, 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 17 January 2002,

Declares, after having taken note of 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.