PARTLY CONCURRING, PARTLY DISSENTI NG OPINION OF JUDGE MATSCHER

(Translation)

1.   I agree with the Chamber's finding that Judge Schaumburger's participation in the proceedings in the Innsbruck Regional Court , even though he had earlier played a minor role in the investigation of the case, did not mean that the court which tried the applicant lacked impartiality.

However, if the Chamber is of the opinion that the right in issue is one which the accused may waive (as, in a comparable situation, the Court held in substance in the case of Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, pp. 16-17, para . 37) and that in the instant case there was indeed a waiver of this right, in circumstances attended by the necessary safeguards, all those parts of the reasoning which go to prove in the instant case that impartiality was not in question either subjectively or objectively speaking seem to me to be unnecessary, even though they are in principle relevant.

Nevertheless, I should like to point out in this connection that Austrian law (reading Article 68 para . 2 with Article 281 para . 1 (1) of the Code of Criminal Procedure) is slightly equivocal, although it is formally correct and consistent.

2.   I also agree with the Chamber's finding that the fact that the Supreme Court did not hold a public hearing when it heard the appeal on grounds of nullity did not offend against the principle that proceedings must be public which is embodied in Article 6 para . 1 (art. 6-1) of the Convention.

Here too a reference to point 2 of the reservation that Austria made when ratifying the Convention, whose validity in this respect has never been called in question by the Court, would have settled the issue without any need to explain that in view of the nature of the proceedings before the Supreme Court it was unnecessary to hold a publi c hearing in the instant case.

3.   I cannot, on the other hand, agree with the finding that there has been a breach of Article 6 para . 1 (art. 6-1) on account of the fact that the Attorney-General's little memorandum, proposing that the appeal should be dismissed without a hearing as being ill-founded within the meaning of Article 285d of the Code of Criminal Procedure, was lodged with the Supreme Court without having been communicated to the applicant.

The history of the Attorney-General's observations, commonly known as a " croquis ", and the doubts as to whether they comply with the principle of equality of arms are well known; these observations have long been a subject of scrutiny by the Convention institutions.  In order to comply with the Strasbourg case-law, a provision (Rule 60 para . 7) was added to the Supreme Court Rules in 1980 to the effect that where the Attorney-General submitted "detailed observations" ( ausgearbeitete Stellungnahme ) on an appeal, they should automatically be sent to the defence. This was repeated in an instruction sent to all courts by the Ministry of Justice in 1992.  Later, when the Code of Criminal Procedure was revised in 1993, a second paragraph was added to Article 35 making the above rule binding, on condition, however, that the observations of the Attorney-General's Office contained substantive matters or arguments.  Otherwise, the defence can always inspect any written observations by the Attorney-General, either by consulting the court's file or by merely telephoning the court's registry to ask to be s ent a copy of the observations.

It might be thought - and I for one think - that this arrangement wholly satisfies the requirements of the Convention.

In accordance with the instructions and provisions that I have just cited, the Supreme Court in the instant case did not send the Attorney-General's memorandum to the defence, as it contained no substantive arguments; it was limited to suggesting to the Supreme Court that the appeal on grounds of nullity should be dismissed without a hearing as being manifestly ill-founded, as the defence must have been aware, seeing that the Attorney-General's Office had not lodged an appeal against the Innsbruck Regional Court's judgment and consequently would propose dismissal of the accused's appeal either at the hearing, if there was one, or in its written observations.  Sending this memorandum to the defence would therefore not have provided them with any substantive information not already available to them. If the memorandum in question had been sent to the defence, they would not have been able to react otherwise than by stating that they considered their appeal to be well-founded (without being able to add anything more), and they had already done that by lodging their appeal.  Furthermore, the defence could have enquired of the Supreme Court's registry whether the Attorney-General's Office had submitted any observations and, if so, asked to be sent them, if they had really been interested in them.

That being so - the defence having lodged an appeal on grounds of nullity, giving full reasons, and the Attorney-General having simply proposed dismissing this appeal, without adducing any argument - the principle of equality of arms seems to me to have b een sufficiently complied with.

To find nevertheless that there has been a breach of Article 6 (art. 6) in the instant case on account of the failure to have the Attorney-General's innocuous observations sent to the defence amounts, in my view, to a perversion of the very wise maxim "the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective" ( Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, p ara . 33, third sub-paragraph).