CEDH · CASELAW;RESOLUTIONS;MERITS;ENG — 5 avril 1963

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The Committee of Ministers,   Having regard to Article 32 (art. 32) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter called "the Convention");   Having regard to the report drawn up by the European Commission of Human Rights, in accordance with Article 31 (art. 31) of the Convention, and relating to the Applications lodged respectively by Herbert Ofner (No. 524/59) and Alois Hopfinger (No. 617/59), Austrian nationals, against Austria;   Whereas the Commission transmitted the said report to the Committee of Ministers on 10th December 1962, and whereas the period of three months provided for in Article 32, paragraph 1 (art. 32-1) of the Convention has elapsed without the case having been brought before the Court in pursuance of Article 48 (art. 48) of the Convention;   Whereas, in their Applications, the applicants complain of several violations of Article 6 (art. 6) of the Convention alleged to have taken place during judicial proceedings instituted against each of them separately in Austria, as a result of which they were convicted of certain criminal offences;   Whereas the Commission, having rejected part of each of the Applications as inadmissible, retained as admissible, with the purpose of establishing the facts and formulating an opinion regarding them, the following issues:   1.    As regards the Application of Ofner:   (i)    Whether or not the provisions of the Austrian Code of Criminal Procedure (as amended and supplemented by the Act of 31st December 1877) applied by the Supreme Court of Austria in the case of Herbert Ofner were compatible with Article 6, paragraphs (1) and (3), sub-paragraph (c) (art. 6-1, art. 6-3-c), of the Convention (both parties not represented in the proceedings before the Supreme Court)?   (ii)   Whether or not the rights to which the Applicant was entitled under Article 6, paragraph (3), sub-paragraphs (a) and (b) (art. 6-3-a, art. 6-3-b), of the Convention had been respected by the Regional Court (change in legal classification)?   2.    As regards the Application of Hopfinger:   Whether or not the provisions of the Austrian Code of Criminal Procedure (as amended and supplemented by the Act of 31 December 1877) applied by the Supreme Court of Austria in the case of Alois Hopfinger were compatible with Article 6, paragraphs (1) and (3), sub-paragraph (c) (art. 6-1, art. 6-3-c), of the Convention (both parties not represented in the proceedings before the Supreme Court)?   Whereas the Commission, after ordering the joinder of these two cases in accordance with Rule 39 of its Rules of Procedure, in its Report expressed the opinion:   (a)    regarding the proceedings before the Regional Court in the case of Herbert Ofner, (question of change in legal classification)   that the Applicant was duly informed of the nature and cause of the accusation against him, and he had adequate time and facilities for the preparation of his defence;   (b)    regarding the proceedings before the Supreme Court in the cases of Herbert Ofner and Alois Hopfinger, (question of both parties not being represented in the proceedings)   1.    What is generally called "the equality of arms", that is the procedural equality of the accused with the public prosecutor,   is an inherent element of a "fair trial";   2.    It follows from the findings of the facts that in each of the two cases the Applicant's memorial, stating the grounds of the appeal and the plea of nullity, was submitted to the public prosecutor, who refrained from filing a counter-memorial.   In this state the case-file was submitted to the Supreme Court.   So far, complete equality between the accused and the prosecutor was observed;   3.    On the basis of the documents of the case, the Judge Rapporteur wrote his report without hearing arguments from any side and without leaving room for any outside influence.   Complete equality between the parties was maintained;   4.    The report of the Judge Rapporteur was then submitted to the Attorney-General (Generalprokurator) for his observations.   If now the Attorney-General had tried to influence the decision to the disadvantage of the accused without the latter being heard, it might have been doubtful whether the principle of equality would have been observed.   But this did not happen.   What happened was simply that the Attorney-General in one single word ("einverstanden") expressed his agreement with the report.   In these circumstances his intervention cannot reasonably be said to violate the principle of equality;   5.    The adoption by the Supreme Court of the draft decision took place at a non-public sitting in which neither of the parties were represented.   Thus the principle of equality was not infringed;   Whereas, the Commission, in conclusion, was of the unanimous opinion that the provisions of the Convention had not been violated in the cases under examination;   Whereas these two cases are analogous;   Agreeing with the reasoning of the Commission;   Voting in accordance with the provisions of Article 32 paragraph (1) (art. 32-1) of the Convention,   Joins the cases of Herbert Ofner (No. 524/59) and Alois Hopfinger (No. 617/59);   Decides that in these two cases there has been no violation of the Convention for the Protection of Human Rights and Fundamental Freedoms.