SCHEICHELBAUER AGAINST AUSTRIA
Doc ref: 2645/65 • ECHR ID: 001-49212
Document date: November 12, 1971
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The Committee of Ministers,
Having regard to Article 32 (art. 32) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms (hereinafter
called "The Convention");
Having regard to the report drawn up by the European Commission of
Human Rights in accordance with Article 31 (art. 31) of the Convention
relating to the application lodged by Mr. Peter Scheichelbauer, an
Austrian national, against the Government of Austria (No. 2645/65);
Whereas the Commission transmitted the said report to the Committee of
Ministers on 8 February 1971 and whereas the period of three months
provided for in Article 32, paragraph 1 (art. 32-1) of the Convention
has elapsed without the case having been brought before the Court in
pursuance of Article 48 (art. 48) of the Convention;
Whereas in his application introduced on 10 June 1965,
Mr Peter Scheichelbauer complained of violation of several articles of
the Convention alleged to have taken place during the judicial
proceedings instituted against him in Austria;
Whereas the Commission, on 19 July 1968, rejected certain parts of the
application as being inadmissible and on 3 October 1969 declared
admissible the applicant's complaint alleging violation of the right
to a fair trial within the meaning of Article 6 (art. 6) of the
Convention owing to the use of the recording on a magnetic tape of a
conversation between the applicant and his co-defendant as evidence
before the Vienna Regional Criminal Court;
Whereas the Commission during its examination of the merits of
the case considered that the Commission was not required in the
present case to decide the question whether the tape recordings of a
private conversation unbeknown to the participants or one of them
constitutes in principle an interference with privacy; the problem
before the Commission was only whether the use by the Austrian court
of the recording in evidence constituted a violation in the present
case of the applicant's right to a fair hearing within the meaning of
Article 6 (1) (art. 6-1) of the Convention;
Sharing this view of the Commission and considering therefore
that the only question to be decided is whether in this particular
case the applicant was granted a fair hearing, as guaranteed by
Article 6 (1) (art. 6-1) of the Convention;
Whereas the Commission also considered the further allegation of the
applicant that if the use of the tape recording as evidence was
contrary to the Convention, there was also a violation of Article 13
(art. 13), since, according to him, the Code of Criminal Procedure
made no provision for appeal in such cases;
Agreeing with the opinion expressed by the Commission in accordance
with Article 31, paragraph 1 (art. 31-1) of the Convention:
(a) by seven votes to four, that in this case there was no violation
of Article 6 (1) (art. 6-1) of the Convention;
(b) by six votes to five that since the applicant's rights under
other articles of the Convention had not been violated in this case,
Article 13 (art. 13) of the Convention had not been violated;
Voting in accordance with the provisions of Article 32, paragraph 1
(art. 32-1) of the Convention,
Decides that in this case there was no violation of the
Convention for the Protection of Human Rights and Fundamental
Freedoms.