JOINT DISSENTING OPINION OF JUDGES CREMONA , LIESCH AND PETTITI

We find ourselves unable to agree with the majority of our colleagues that there was no violation of the Convention in this case.

We do go along with them as far as their conclusions that in 1977 the applicant was subjected to a criminal charge and that Article 6 (art. 6) of the Convention is in fact applicable to this case. But then we cannot agree that the decision of the Austrian Supreme Court of 28 February 1980, so far as it went, contrived to set right a situation which was then already in violation of Article 6, paragraphs 1 and 2 (art. 6-1, art. 6-2), of the Convention. It is here at this crucial point that we are compelled to part ways with the majority.

In its decision dated 10 January 1978 ("Decision in the criminal case against Dr. Gustav Adolf for the offence of inflicting bodily harm, within the meaning of section 83 of the Penal Code") the Innsbruck District Court, applying section 42 of the Penal Code, stated as follows:

"... The investigations ... and the expert opinion have shown that in the course of a quarrel the accused flew into a rage and threw an envelope containing a key in the direction of Mrs. Anneliese Schuh who however managed to avoid the missile, while ... Irma Proxauf standing behind her was hit. The key first struck the back of the right hand, causing a superficial abrasion, and then bounced against the left side of the above-mentioned person ' s chest.

The injury found is insignificant as it does not exceed the three-day limit; the fault (Verschulden) of the accused may be described as insignificant, and his character gives cause to expect that he will conduct himself properly in future."

In our view this reasoning clearly amounts to a judicial finding, in the context of a criminal charge, that the applicant inflicted bodily harm on another person and that he was in a state of guilt in doing so. The net result is that, notwithstanding the applicant ' s persistent denial of the allegations made against him, and without holding a public trial, hearing any witnesses and giving the applicant the opportunity to challenge the aforesaid expert medical opinion, that Court made findings establishing both the disputed facts and his contested guilt.

It is true that in its decision of 28 February 1980 the Austrian Supreme Court in effect stated that, notwithstanding the infelicitous wording used by the District Court in its decision, that decision, inasmuch as it applied section 42 of the Austrian Penal Code, was based solely on the existence of a "suspected state of affairs".

But whilst it is clear that, in a case like this, in principle it is not within the province of our Court to review the correctness of the construction put upon section 42 of the Penal Code of Austria by the Austrian Supreme Court, it is equally clear that what was found by the District Court in unambiguous and unmistakable language cannot be made to mean other than what it obviously and unavoidably means. The "fact" of those findings was not erased by mere "hypothetical" whitewashing.

Indeed the fact remains that the District Court ' s decision, the grounds of which in effect amounted to declaring the applicant guilty of a criminal offence, still stands. The Supreme Court did not set it aside and the construction put upon it in no way erased the positive findings actually made in it. Nor did that Court correct the failure of the District Court to respect the requirements of Article 6 §§ 1 and 2 (art. 6-1, art. 6-2) of the Convention taken together, which should have been observed before those findings were actually reached.

Clearly, before a person is found guilty of a criminal offence it is essential that he should have the benefit of the guarantees of Article 6 (art. 6) of the Convention. But the decision of the District Court, which as already stated still stands, was reached by a procedure under which the applicant did not have the opportunity to exercise his rights under that Article (art. 6), in particular his right to a fair and public hearing and his right to be presumed innocent until proved guilty according to law.

We therefore find that there was a breach of Article 6, paragraphs 1 and 2 (art. 6-1, art. 6-2), of the Convention.

In view of this conclusion, we feel dispensed from ascertaining whether there was, in addition, a breach of Article 6 § 3 (d) (art. 6-3-d).