CONCURRING OPINION OF JUDGE MATSCHER

(Translation)

I voted for the conclusion that there had been no violation of Article 6 § 2 (art. 6-2) of the Convention, primarily for the reasons given in the judgment.

Nonetheless, I should like to point out that the same conclusion could be reached by other routes, for example by reliance on the nature of section 42 of the Austrian Penal Code, from which it follows that the district court, whenever it applies this section of the Penal Code, is deciding that the contested facts do not attain the level of seriousness of a criminal offence and thus fall completely outside the sphere of the criminal law; in other words, by applying this provision a district court can never violate Article 6 § 2 (art. 6-2) of the Convention, which safeguards the presumption of innocence only in respect of a charge of a criminal offence.

It could also be maintained that whilst the Innsbruck District Court did indeed make a finding of certain facts in the reasoning of its decision, it did so in such a generic manner that what it stated did not amount to finding proved all the various elements that must be proved for there to be a specific criminal offence.

On the other hand, I well understand the way of thinking of my colleagues who have felt unable to concur with the majority. In point of fact, the present case is the result of a chain of unfortunate circumstances and of mishandling on the part of the relevant authorities, something which can make it difficult in the particular event to reach the conclusion that there was no breach of Article 6 § 2 (art. 6-2) of the Convention.

To begin with, section 42 of the Austrian Penal Code seems to me to be unsatisfactorily drafted. Read literally, it could be taken as suggesting that its application presupposes a finding of guilt, which would hardly be reconcilable with the presumption of innocence within the meaning of Article 6 § 2 (art. 6-2) of the Convention (unless the argument based on the very nature of section 42 of the Penal Code be adopted; as to this, see above). The picture changes only if section 42 of the Penal Code is construed in the light of its drafting history, the corpus of the rules of criminal procedure and Article 6 § 2 (art. 6-2) of the Convention (which has constitutional status in Austria).

It is also understandable that, confronted with this text which, as is evident can be conducive to misunderstandings, the judge at Innsbruck should have resorted to what the Supreme Court called a "more or less apposite choice of wording" but what I, personally, would prefer to term as a choice of totally improper wording. It is precisely this factor that lies at the root of the present application.

Furthermore, it was wrong of the District Court to have dated 10 January 1978 the written reasoning requested by the applicant, without specifying that as a matter of law the termination decision had been taken earlier on 24 November 1977.

Finally, it would have been preferable had the Supreme Court taken advantage of the occasion offered to it by holding the reasoning of 10 January 1978 to be contrary to the law, as it had been moved to do by the Generalprokurator. Such a course of action was all the more open to the Supreme Court in view of the fact that section 292 of the Code of Criminal Procedure, fourth sentence, provides, inter alia, for judgment declaring that a "manner of proceeding" (Vorgang) was contrary to the law; and this, without any doubt, was what occurred in the present case.

To sum up, notwithstanding the circumstances that I have just recounted, I consider the correct conclusion to be that there was no breach of Article 6 § 2 (art. 6-2) of the Convention.