RESOLUTION DH (97) 500

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS

OF 22 FEBRUARY 1996

IN THE CASE OF BULUT AGAINST AUSTRIA

(Adopted by the Committee of Ministers on 29 October 1997

at the 605th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Conven ­ tion for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the case of Bulut against Austria delivered on 22 February 1996 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 17358/90) against Austria, lodged with the European Commission of Human Rights on 5 October 1990 under Article 25 of the Convention by Mr Mikdat Bulut, a Turkish national, and that the Commission declared admissible the complaints that the trial court had included a judge (Judge Schaumburger) disqualified from sitting by law, that no hearing had been held in the Supreme Court, that the Attorney-General had submitted to the Supreme Court observations that had not been made available to the defence and that the Supreme Court had divulged the name of the judge rapporteur to the Attorney-General contrary to the relevant legal provisions ;

Recalling that the case was brought before the Court on 19 December 1994 by the Government of Austria ;

Whereas in its judgment of 22 February 1996 the Court:

– held, by eight votes to one, that there had been no violation of Article 6, paragraph 1, of the Convention, with regard to Judge Schaumburger's participation in the trial ;

– held, by eight votes to one, that there had been no violation of Article 6, paragraph 1, of the Convention, on account of the Supreme Court's failure to hold a hearing ;

– held, by eight votes to one, that there had been a breach of Article 6, paragraph 1, of the Convention, on account of the submission of observations by the Attorney-General's Office to the Supreme Court without communication to the defence ;

– held, unanimously that the respondent State was to pay the applicant, within three months, 75 000 Austrian schillings in respect of costs and expenses, together with any value-added tax that may be chargeable, less 7 328 French francs already paid by way of legal aid, to be converted into Austrian schillings at the rate applicable on the date of delivery of the present judgment; that simple interest at an annual rate of 6% should be payable from the expiry of the above-mentioned three months until settlement, and dismissed, unanimously, the remainder of the claim for just satisfaction ;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention ;

Having invited the Government of Austria to inform it of the measures which had been taken in consequence of the judgment of 22 February 1996, having regard to Austria's obligation under Article 53 of the Convention to abide by it ;

Whereas, during the examination of the case by the Committee of Ministers, the Government of Austria gave the Committee information about the measures taken in consequence of the judgment, which information appears in the appendix to this Resolution ;

Having satisfied itself that on 24 April 1996, within the time-limit set, the Government of Austria paid the applicant the sum provided for in the judgment of 22 February 1996,

Declares, after having taken note of the information supplied by the Government of Austria, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (97) 500

Information provided by the Government of Austria

during the examination of the Bulut case

by the Committee of Ministers

The judgment of the European Court of Human Rights was transmitted to the authorities concerned.

Article 35, paragraph 2, of the Code of Criminal Procedure, which was at the origin of the violation found, has been modified as a result of the entry into force on 1 March 1997 of Act No. 762 of 30 December 1996. According to the new wording of this Article, the communication of the observations submitted by the public prosecutor in response to the accused's appeal for setting aside ( Nichtigkeitsbeschwerden ) may be dispensed with only if the prosecutor takes a position in favour of the accused or if the tribunal allows his or her appeal in full.

The Government of Austria is of the opinion that the measures adopted will prevent the repetition of new violations of the same kind as that found in this case and that, therefore, Austria has fulfilled its obligations under Article 53 of the Convention.