PARTLY DISSENTING OPINION OF JUDGE MATSCHER, JOINED BY JUDGES THÓR VILHJÁLMSSON AND BINDSCHEDLER-ROBERT

(Translation)

Contrary to the bare assertions of counsel for the applicant, I regard it as established that Austrian lawyers are well aware of the practice on the part of the public prosecutors at the Austrian Courts of Appeal and Supreme Court of submitting written observations (croquis) which are included in the court ’ s case-file and that, despite the no doubt unsatisfactory wording of Article 82 of the Code of Criminal Procedure, any person who can show a legitimate interest is guaranteed access to the file; it is certain that a defendant (or his lawyer) has such an interest and is consequently always allowed the right of access.

This practice is in my opinion entirely in accordance with the requirements of Article 6 (art. 6) of the Convention, as the Commission moreover recognised in its decision on admissibility given in the Peschke case concerning Austria (no. 8289/78 of 5.3.80, Decisions and Reports, vol. 18, p. 160).

Its conformity with the requirements of the Convention might be questionable if the public prosecutor ’ s observations were submitted to the court at a very late date, too close to the hearing of the appeal, or if access to the file involved a substantial burden for defence counsel.

None of that is the case. In particular, in the present case, the Senior Public Prosecutor ’ s observations were submitted over three weeks before the date of the appeal hearing (see paragraph 34 of the judgment) and the applicant ’ s lawyer could have found about them very easily, simply by telephoning the registry of the Court of Appeal and, if appropriate, asking it to supply a copy.

In these circumstances, it seems clear to me that the principle of equality of arms was respected. Of course it is possible to imagine a better system than that in force in Austria at the time of the instant case (see paragraphs 8 and 67 of the judgment), but that does not mean that the Convention has thereby been violated.

If the majority of the Chamber consider that a defendant must always be informed by the court of the submission of observations by the public prosecutor, or at least that the right of access to the file ought to be guaranteed more explicitly in the law itself, that in my opinion goes beyond the requirements of Article 6 (art. 6).

CONCURRING OPINION OF JUDGE MARTENS

I agree with the Court ’ s reasoning in paragraph 57, sed ceterum censeo ... (see my concurring opinion in the Brozicek case, judgment of 19 December 1989 , Series A no. 167, pp. 23-28).

[*]  The case is numbered 37/1990/228/292-294.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11) , which came into force on 1 January 1990 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 211 of Series A  of the Publications of the Court), but a copy of the Commission's  report is obtainable from the registry.