Resolution ResDH (2003)1 concerning the judgment of the European Court of Human Rights of 14 November 2000 (final on 14 February 2001) in the case of Riepan against Austria

(Adopted by the Committee of Ministers on 24 February 2003 at the 827th 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 Riepan case delivered on 14 November 2000 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. 35115/97) against Austria, lodged with the European Commission of Human Rights on 23 December 1996 under former Article 25 of the Convention by Mr. Oliver Riepan , 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 the applicant, a prisoner indicted for threatening behaviour on account of incidents in prison ( gefährliche Drohung ) following incidents which occurred in prison , did not have a public hearing as the trial was held in prison where he was detained;

Whereas in its judgment of 14 November 2000 the Court unanimously:

- held that there had been a violation of Article 6, paragraph 1, 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, 50 000 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 satisfaction;

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 measures which had been taken in consequence of the judgment of 14 November 2000, having regard to Austria’s obligation under Article 46, paragraph 1, of the Convention 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 30 March 2001, within the time-limit set, the government of the respondent state had paid the applicant the sum provided for in the judgment of 14 November 2000,

Declares, after having taken note of the information supplied by the Government of Austria, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2003)1

Information provided by the Government of Austria during the examination of the Riepan case by the Committee of Ministers

The Government reiterates that the violation found by the European Court of Human Rights in this case resulted from the fact that, although the hearing at first instance was theoretically public, the specific conditions under which it took place (in prison, in a very small room, etc.) were such as to discourage the presence of the public, and were not justified by any consideration of security. Furthermore, no adequate compensatory measures (separate announcement, information about how to reach the prison with a clear indication of the access conditions) were adopted in order to counterbalance the detrimental effect which the holding of the applicant’s trial in the closed area of the prison had on its public character (paragraphs 27-31 of the judgment of the European Court). In addition, the holding of a public hearing before the Court of Appeal was not a way of making up for this shortcoming, since the proceedings before that Court, which involved neither the consideration of evidence nor the testimony of witnesses, were very limited in scope (paragraph 41 of the judgment of the European Court).

In order to ensure awareness of the judgment of the European Court and to draw, in particular, the attention of the legal community to Austria’s obligations under it, the judgment was published in translation in three Austrian legal journals (Newsletter 6/2000, Österreichische Juristenzeitschrift 2000, p. 357 and ÖAMTC – LSK 2001/112). It was also sent accompanied by a circular letter from the Ministry of Justice to all Presidents of Higher Regional Courts and the State Attorneys General in Vienna, Graz, Linz and Innsbruck in order to be distributed to all state attorneys and judges dealing with criminal cases.

According to the above-mentioned circular letter, whenever a hearing is to take place anywhere else than on the premises of a regular court, especially in places to which the public normally does not have access, the notice-board of the court should indicate the place of the hearing and the means and conditions of access. This special form of announcement would have to be ordered by the competent judge at the very moment of issuing the convocation to the hearing. Furthermore, the circular letter drew the judges’ and state attorneys’ attention to paragraphs 27-41 of the judgment of the European Court and invited them to apply the requirements of the Court concerning the public character of the hearings by taking adequate specific measures.

The Government of Austria considers that the measures taken will prevent the repetition of any new violation similar to that found in this case and that it has therefore fulfilled its obligations under Article 46, paragraph 1 of the Convention.