DISSENTING OPINION OF MR. K. HERNDL

                   JOINED BY MR.F. MARTINEZ

     While I agree with the majority that Article 6 para. 1 of the

Convention is applicable to the proceedings at issue (para. 42) and

that the Commission is not prevented by the Austrian reservation from

examining the complaint concerning the lack of a public hearing and a

public pronouncement of the decisions given (para. 50), I voted against

the finding of a violation of Article 6 para. 1 as regards the lack of

a public hearing.

     As stated in para. 29 of the Report no public hearings are

normally conducted before the Judges' Chamber and before the Court of

Appeal in proceedings concerning appeals against decisions of the

Judges' Chamber.  The Code of Criminal Procedure neither explicitly

requires a public hearing in such proceedings nor does it explicitly

prohibit such hearings.  It may very well be that it is not the usual

practice before Austrian criminal courts to hold hearings on claims

like the one asserted by the applicant or that the parties request such

hearings.  However, since the applicant attached such importance to a

public hearing and taking into account that the holding of public

hearings is not explicitly ruled out by the Code of Criminal Procedure,

he would have been well advised to ask for a public hearing.  On the

basis of the Austrian law as it stands the Austrian courts might have

considered such a request by the applicant as somewhat unusual, but to

my mind there is nothing to show that it would have stood no chances

of success.

     In fact, as the relevant Austrian law is silent on this issue the

applicant could (and should) in any formal request for a public hearing

have invoked Article 6 para. 1 of the Convention (which is part of the

Austrian legal order at the level of the Constitution), either alone

or in conjunction with Article 90 of the Federal Constitution which

unequivocally establishes the principle of public hearings to be held

in civil and criminal cases.  A formal request for a public hearing by

the applicant based on such grounds would have resulted in an

appropriate evaluation of this pertinent argument by the Court.  The

Court, however, was apparently never confronted with the argument and,

therefore, followed the usual practice of not holding a public hearing

in such a case.

     Accordingly, following the constant case-law of the Court on this

matter (see, e.g., Eur. Court HR, HÃ¥kansson and Sturesson v. Sweden

judgment of 21 February 1990, Series A no. 171-A, p. 20, para. 67;

Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A,

p. 14, para. 34) I find that the applicant must be deemed to have

waived his right to a public hearing and that accordingly there was no

violation of his right under Article 6 para. 1 of the Convention to

such a hearing.