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OFNER AND HOPFINGER AGAINST AUSTRIA

Doc ref: 524/59;617/59 • ECHR ID: 001-49201

Document date: April 5, 1963

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OFNER AND HOPFINGER AGAINST AUSTRIA

Doc ref: 524/59;617/59 • ECHR ID: 001-49201

Document date: April 5, 1963

Cited paragraphs only

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, and relating to the Applications lodged respectively by

Herbert Ofner (No. 524/59) and Alois Hopfinger (No. 617/59), Austrian

nationals, against Austria;

Whereas the Commission transmitted the said report to the Committee of

Ministers on 10th December 1962, 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 their Applications, the applicants complain of several

violations of Article 6 (art. 6) of the Convention alleged to have

taken place during judicial proceedings instituted against each of

them separately in Austria, as a result of which they were convicted

of certain criminal offences;

Whereas the Commission, having rejected part of each of the

Applications as inadmissible, retained as admissible, with the purpose

of establishing the facts and formulating an opinion regarding them,

the following issues:

1. As regards the Application of Ofner:

(i) Whether or not the provisions of the Austrian Code of Criminal

Procedure (as amended and supplemented by the Act of 31st December 1877)

applied by the Supreme Court of Austria in the case of Herbert Ofner

were compatible with Article 6, paragraphs (1) and (3), sub-paragraph (c)

(art. 6-1, art. 6-3-c), of the Convention (both parties not

represented in the proceedings before the Supreme Court)?

(ii) Whether or not the rights to which the Applicant was entitled

under Article 6, paragraph (3), sub-paragraphs (a) and (b) (art. 6-3-a,

art. 6-3-b), of the Convention had been respected by the Regional

Court (change in legal classification)?

2. As regards the Application of Hopfinger:

Whether or not the provisions of the Austrian Code of Criminal

Procedure (as amended and supplemented by the Act of 31 December 1877)

applied by the Supreme Court of Austria in the case of Alois Hopfinger

were compatible with Article 6, paragraphs (1) and (3),

sub-paragraph (c) (art. 6-1, art. 6-3-c), of the Convention (both

parties not represented in the proceedings before the Supreme Court)?

Whereas the Commission, after ordering the joinder of these two cases

in accordance with Rule 39 of its Rules of Procedure, in its Report

expressed the opinion:

(a) regarding the proceedings before the Regional Court in the case

of Herbert Ofner, (question of change in legal classification)

that the Applicant was duly informed of the nature and cause of the

accusation against him, and he had adequate time and facilities for

the preparation of his defence;

(b) regarding the proceedings before the Supreme Court in the cases

of Herbert Ofner and Alois Hopfinger, (question of both parties not

being represented in the proceedings)

1. What is generally called "the equality of arms", that is the

procedural equality of the accused with the public prosecutor, is an

inherent element of a "fair trial";

2. It follows from the findings of the facts that in each of the

two cases the Applicant's memorial, stating the grounds of the appeal

and the plea of nullity, was submitted to the public prosecutor, who

refrained from filing a counter-memorial. In this state the

case-file was submitted to the Supreme Court. So far, complete

equality between the accused and the prosecutor was observed;

3. On the basis of the documents of the case, the Judge Rapporteur

wrote his report without hearing arguments from any side and without

leaving room for any outside influence. Complete equality between

the parties was maintained;

4. The report of the Judge Rapporteur was then submitted to the

Attorney-General (Generalprokurator) for his observations. If now the

Attorney-General had tried to influence the decision to the

disadvantage of the accused without the latter being heard, it might

have been doubtful whether the principle of equality would have been

observed. But this did not happen. What happened was simply that the

Attorney-General in one single word ("einverstanden") expressed his

agreement with the report. In these circumstances his intervention

cannot reasonably be said to violate the principle of equality;

5. The adoption by the Supreme Court of the draft decision took

place at a non-public sitting in which neither of the parties were

represented. Thus the principle of equality was not infringed;

Whereas, the Commission, in conclusion, was of the unanimous

opinion that the provisions of the Convention had not been violated in

the cases under examination;

Whereas these two cases are analogous;

Agreeing with the reasoning of the Commission;

Voting in accordance with the provisions of Article 32 paragraph (1)

(art. 32-1) of the Convention,

Joins the cases of Herbert Ofner (No. 524/59) and Alois Hopfinger

(No. 617/59);

Decides that in these two cases there has been no violation of

the Convention for the Protection of Human Rights and Fundamental

Freedoms.

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