X v. AUSTRIA - 1418/62 [1963] ECHR 1 (21 June 1963)

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X v. AUSTRIA - 1418/62 1963] ECHR 1 (21 June 1963)
THE FACTSThe Applicant, who was born in 1924 in A., is at present living inGermany. He is represented by Dr. Hans Gürtler of Vienna.On ... 1961, the Applicant was convicted by the Regional Court of B.on charge of having, by evasion of taxes and import duties, violatedthe Financial Offenses Act (Finanzstrafgesetz) and sentenced to oneyear's imprisonment, subsequent deportation from Austria and a fineof 1 million Austrian schillings, and, in default of payment, threemonths imprisonment.He was also ordered to make restitution (Wertersatz) of approximately3.5 million Austrian schillings, or in default of payment ten monthsimprisonment. In respect of certain parts of the original indictment,the Applicant was apparently acquitted either for lack of proof orfollowing a withdrawal of the charges. The Court had rejected a requestfrom the lawyer for the defence to call two witnesses named Y. and Z.The Applicant lodged a joint plea of nullity (Nichtigkeitsbeschwerde)and appeal (Berufung) and, in respect of the former plea, invokedArticle 281 (4) of the Austrian Code of Criminal Procedure, whichstates as follows:"(1) A plea of nullity may be entered ... only on the followinggrounds4) if, during the main proceedings, no decision has been taken onan application by the complainant or if an interim decision renderedagainst his application or opposition has disregarded or appliedincorrectly laws or principles of procedure which must be observedthrough a procedure providing for both prosecution and defence;"On ... 1961 the Public Prosecutor's Office of B. stated that it wouldmake no counter-statement, and on ... 1961 the case-file was sentto the Supreme Court.The member of the Supreme Court designated as Rapporteur transmittedthe case-file to the Attorney-General's Office at the Supreme Courtwith the comment that, in accordance with paragraph 290, sub-paragraph1, of the Code of Criminal Procedure, he was applying for a day tobe fixed for a public hearing. He based his application on the groundthat, in his opinion, there were "material-judicial" grounds forannulment under paragraph 281, sub-paragraph 11, of the Code ofCriminal Procedure (which had not been invoked in the plea of nullity)in that the trial Court had made a mistake in law in applying theprovisions of Court had made a mistake in law in applying theprovisions of the Financial Offenses Act instead of those of the TaxCode. He submitted that this was relevant insofar as the sentenceincluded deportation of the accused from Federal territory, and thatwould be prejudicial to him; the clauses of the Tax Code properlyapplicable to the case in question did not provide for such a measure.On ... 1961, in a letter addressed to the Attorney-General, Dr.Gürtler, who had meanwhile been instructed by the Applicant, requestedan oral hearing in order to submit to the Court further arguments inrespect of Article 281 and to show in detail why the refusal by thelower court to hear the above witnesses obstructed the defence. It wasalso pointed out that the grounds of a plea of nullity mentioned inArticle 281 (9 - 11) had not been clearly invoked by the Applicant'sformer counsel and that, according to Article 290, the Court should,ex officio, take these grounds into consideration; this wouldnecessitate an oral hearing. Dr. Gürtler's letter contained an exposéof the issues relating to the plea of nullity, as well as to theappeal, and he intended to develop his arguments further at the hearingrequested by him.On ... 1961, the Attorney-General's Office, after examining the legalposition, sent the file to the Supreme Court with its "Croquis", inwhich it stated its opinion, given as though in open court, that theaccused's plea of nullity should be rejected; it also pointed out thatthere was an obvious ground for annulment of the conviction which hadnot been invoked by the defence or mentioned by the Judge-Rapporteur.This was that the trial Court had imposed a fine of 1,000,000Schillings, although, under the provisions of the Tax Code which shouldhave been applied, the maximum fine applicable was 600,000 Schillings.It also stated that grounds for annulment under 281, sub-paragraphs 10and 11, of the Code of Criminal Procedure had been mentioned, which,under paragraph 290, sub-paragraph 1, of the Code of CriminalProcedure, must automatically be applied in the accused's favour.The Attorney-General, having regard no doubt to his duty underparagraph 33 of the Code of Criminal Procedure, examined Dr. Gürtler'sapplication of ... 1961 and sent the Supreme Court a letter with a copyof the application, stating that he saw no reason to intervene. Insofaras the petition contained points relevant in law - even though theymade no difference to the legal position of the accused - they weretaken into account in the parts of the "Croquis" dealing with the"material-judicial" aspects of the case.In a decision dated ... 1961, the Supreme Court, despite the originalapplication of the Judge-Rapporteur for a day to be fixed for a publichearing (agreed to by the Attorney-General's Office) and withoutfurther consultation of the Attorney-General's Office, rejected theplea of nullity as manifestly ill-founded. This decision was taken inthe absence of the Attorney-General and of the accused and his counsel.The Court announced at the same time that a separate order wouldbe made fixing a day for a public hearing since it was apparent thatthe law had been wrongly applied to the prejudice of the accused,and proceedings should therefore go forward as though the plea ofnullity had been based on paragraph 281, sub-paragraphs 10 and 11,of the Code of Criminal Procedure. On ... 1961, this hearing wasfixed for ... 1961 and counsel for the defence was so informed ina writ dated ... 1961.The record of the public hearing of ... 1961 shows that counsel for thedefence gave his views on the case and made submissions similar tothose in his written statement to the Attorney-General's Office. Therepresentative of the Attorney-General's Office took up a position onthe lines of that set out in the "Croquis".The oral decision of ... 1961, ordering the adjournment, was based ona written draft which shows that counsel for the defence took theopportunity to submit legal considerations not contained in hispetition to the Attorney-General's Office. The decision therefore hadto be deferred sine die to allow a thorough examination of thedefence's submissions. After a further session on ... 1961, the SupremeCourt delivered the following judgment on ... 1961 at a public hearing:"The decision of the Regional Court of B. of ... 1961 by ..., whichotherwise remains unchanged, is, on the contrary, to be set asidein accordance with Article 290, paragraph 1 of the Code of CriminalProcedure, insofar as it concerns the legal qualification of the actswhich have been attributed to the accused, X., in the conviction andwhich are mentioned in the beginning of the decision under paragraphs1) and 2) and accordingly also, insofar as concerns the pronouncementof the sentence; it is in accordance with Article 288, paragraph 2,rev. 3, of the Code of Criminal Procedure, by a partial amendment ofthe decision, to be decided as follows:[/align]

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[align=left]The offenses of which the accused, X., was found guilty by the Regional
Criminal Court of B. in its judgment of ... 1961, and described in
detail in paragraphs 1) and 2) thereof, constitute tax evasion
(Steuerhehlerei) within the meaning of paragraph 403, sub-paragraphs
1 and 3, and paragraph 401 b, sub-paragraph 1, of the Tax Code, to one
year's imprisonment and to a fine of 500,000 Schillings (as against
1,000,000 Schillings in the original sentence) or to six weeks
imprisonment in default of payment (as against three months
imprisonment in the original sentence) and, further, under paragraph
401, sub-paragraph 2, of the Tax Code, to make restitution amounting
to 3,518,600 Schillings for those goods which cannot be recovered, or
to six months imprisonment in the original sentence) and, under
paragraph 389 of the Code of Criminal Procedure, he is ordered to pay
the costs of the proceedings and of execution."

In the decision on his appeal, the accused was referred to the decision
on his plea of nullity.

The allegations made by the Applicant

The Applicant alleges violations of Article 6, paragraphs (1) and (3)
(b) and (c).

The submissions of the Parties

Whereas the submissions made by the Applicant's counsel, Dr. Gürtler,
may be summarised as follows:

Before the hearing by the Supreme Court of the plea of nullity, the
Attorney-General submitted to the Court a so-called "Croquis".

The croquis is, as explained in a decision of the Supreme Court of 6th
March 1957, "an expression not recognised by law and only used to
express that it is a tentative draft of an opinion for the hearing".
Dr. Gürtler has traced the development of the relevant provisions
as follows:

Under the Austrian Code of Criminal Procedure of 23rd May 1873, it is
laid down as a principle that the proceedings on a plea of nullity
lodged by the accused shall be held before the Supreme Court in public
on the day fixed. At this hearing "a member of the Supreme Court
appointed Rapporteur by the President of that Court shall give an
account of the past history of the proceedings" (Article 287 (2) of the
Code of Criminal Procedure) (Strafprozeßordnung) and state the grounds
for nullity put forward by the complainant together with the
contentious points arising from there, but without expressing an
opinion on the decision taken by the lower court. Article 287 (3)
further provides as follows:

"The complainant shall then be called upon to outline the grounds for
the plea and his opponent asked to make a counter-statement. In
allcases the accused or is counsel shall have the right to make the
closing statement."

The scope of this basic regulation was restricted by the Criminal
Amendment Act of 31st December 1877. The provisions of Articles 3 and
4 of this Act lay down the following procedure:

"Article 3

(1) The Supreme Court shall deliberate on a plea of nullity submitted
to it in accordance with Article 285 (2) of the Code of Criminal
Procedure at a session in camera, after hearing the Attorney-General
or the Rapporteur selected by the President of the Supreme Court from
among the members of that Court proposes one of the decisions referred
to in Articles 4, 5 or 6.

(2) In all other circumstances a public court sitting to deal with the
case shall be ordered in accordance with the relevant provisions of
Article 286 of the Code without any decision to this effect being
required on the part of the Supreme Court.

Article 4

(1) At the deliberation in camera, the plea of nullity may be dismissed
de plano:

1. Where it should already have been dismissed by the Court of first
instance according to Article 1 of this Act, or where the ground for
nullity invoked has already been disposed of by a decision of the
Supreme Court on that case;

2. Where the plea of nullity is based on the nullity grounds set out
in Article 281, (1 to 8), or in Article 345, (1 to 4), of the Code of
Criminal Procedure and the Supreme Court unanimously considers that it
should be rejected without further deliberation as being manifestly
ill-founded;

(2) The above-mentioned decision can be taken at a deliberation in
camera even if, owing to other grounds for nullity or because the
Supreme Court wishes to reserve for itself the exercise of the powers
granted it under paragraph (1) of Article 290 of the Code, a public
court sitting should be called to deal with the case."

The provisions of the Amendment Act have only been incorporated in the
Code of Criminal procedure in the last few years. This was done in the
"Code of Criminal Procedure 1960" which was promulgated by virtue of
Article 1 of the Promulgating Law (Official Gazette [BGB1] No. 114/47),
and published in the official announcement by the Federal Government
on 20th April 1960 (BGB1. No. 98/47). Article 3 of the old Act new
appears as Article 265 c, and the old Article 4 as Article 265 d of the
present Code of Criminal Procedure.

As the nullity plea of the accused was based on purely formal grounds,
it could, under Austrian municipal law, be dismissed de plano at a
session in camera if, in accordance with Article 4 (1) sub-paragraph
2, of the Criminal Amendment Act, the Supreme Court unanimously
considered that it should be "rejected without further deliberation as
being manifestly ill-founded". It is possible and permissible for such
a deliberation in camera to be ordered, however, only so long as the
conditions of Article 3 (1) of the Amendment Act are fulfilled. Even
if the Rapporteur of the Supreme Court requests a decision according
to paragraph 4, proceedings in camera may be ordered if, and only
if, the Attorney-General has first been heard for that purpose (i.e.
after he has been heard); thus the Attorney-General must also have an
opportunity to say whether, in his opinion, the nullity plea "should
be rejected without further deliberation as being 'manifestly
ill-founded'".
Should any one of the conditions in Article 3, paragraph 1 not be
fulfilled, a public hearing must be held.

It is perfectly clear from the origin, meaning and purpose of the
clause, as well as from the wording of the Act, that the provision
governing those cases, in which immediate dismissal of a nullity plea
at a session in camera is permissible, is a wholly exceptional
application and must be very strictly interpreted. Article 3 (2) of the
Criminal Amendment Act orders that "in all other circumstances", that
is to say without exception, unless the conditions of Article 3 (1) of
the Amendment Act of 1877 are fulfilled, "a public session shall be
ordered."

Dr. Gürtler describes the procedure usually followed in the following
terms:

"The proceedings on a plea of nullity lodged by the accused are so
regulated that the plea of nullity is lodged in the court of first
instance, namely, in the case at hand, the Regional Court of B. The
Court then presents a report on the plea of nullity to the
representative of the Public Prosecution who is attached to the
Regional Court and has the right to prepare counter-statements to this
plea of nullity. After presenting these counter-statements, or after
the appointed period has run out, the files are presented by the
Regional Court to the Supreme Court sitting as the court of second
instance.
Up to this step, the right of treatment on equal footing is protected;
a counter-statement presented by the office of the Public Prosecution
on a legal instrument is an item of the court file and is subject
to examination by counsel for the defence. This uniform and just
treatment is protected by law for the accused, if and as long as it
comes to a public hearing on the plea of nullity in which, according
to the clear wording of the law, counsel for the defence and the
Attorney-General are treated equally and both for the first time - and
only in the trial - have the possibility to speak. In this trial,
however, a facility sneaked in not provided for by law, against which
the Austrian Bar Association has been fighting for many years, namely,
this "Croquis" of the office of the Attorney-General.

In this "Croquis", the Attorney-General summarises the points of view
which he intends to present in court on the day of trial. This croquis
has developed, however, in practice, to be a regular draft of the
decision. Indeed, according to custom, the croquis was taken over
verbatim into the body of the decision, whereby it is impossible for
the defence to ascertain if and in what measure this applied in the
present case. Such croquis are prepared in the same manner and with the
same effect by the office of the Attorney-General in such cases in
which there is no trial at all, and in which the plea of nullity of the
defence is rejected."[/align]

[هيثم الفقى]

[align=left]Dr. Gürtler also refers to the following statement made by Dr.
Liebscher and quoted by Dr. Gürtler during the oral hearing before the
Sub-Commission in the four Austrian cases:

"In the sessions in camera, on the other hand, the position of the
accused is considerably more unfavourable, because only the written
pleadings are before the Court; the accused himself, or his
representative, is not heard.

Therefore it will accord far better with logic, as well as with equity,
to give counsel for the defence a sight of those written opinions of
the Attorney-General which are prepared for the session in camera".

At those proceedings, Dr. Gürtler himself added:

"At a session in camera, the Attorney-General alone receives a hearing,
in a way for which the law makes no provision. These are back-stage
mysteries of criminal procedure which the defence only discovers by
chance and cannot check because scrutiny of the records is
unwarrantably refused. And yet, it is at sessions in camera that the
interests of the defence and the accused are particularly at stake.

In all pleas of nullity decided in camera, the Attorney-General, it
transpires, is heard by the Supreme Court as follows:

Either he is handed the case-file and prepares a "Croquis" which is in
reality a draft decision and is accepted in many cases as the judgment,
as was shown and expressly admitted on the occasion of Barristers' Day,
or the Judge-Rapporteur of the Supreme Court prepares a draft decision
- and sends it to the Attorney-General. The Attorney-General either
agrees or disagrees with it. In neither case is the defence informed.
What he does, and what happens then, cannot be checked: it remains
secret. But he does get the draft decision."

Dr. Gürtler adds that the Attorney-General is bound by directives from
the Minister of Justice. In this respect he submits that contacts
between independent judges and administration officials made before
the taking of a court decision, "open a source of danger for the
independence of adjudication. This is especially so when such contact
is beyond any possibility of control by the defence." He refers to
decision No. 434/58 (Yearbook, Volume 2, page 354) in which the
Commission held:

"The rights to a fair hearing guaranteed by Article 6, paragraph 1, of
the Convention, appear to contemplate that everyone who is a party to
civil proceedings shall have a reasonable opportunity of presenting his
case to the Court under conditions which do not place him under a
substantial disadvantage vis-Ã -vis his opponent."

And adds that this principle must apply to criminal proceedings with
the same force.

Dr. Gürtler then deals with the facts of the present case:

He submits that, on ... 1961, the Attorney-General received from the
Supreme Court the case-file on the basis of which he prepared a written
opinion, "the Croquis", which he submitted to the Court on ... 1961 and
which, either in extenso or in an amended form, constituted the
decision adopted by the Court in a closed session and in the absence
of the defence.

He points out that the croquis was supplied only on the assumption and
condition that an oral hearing would be held to deal with the plea of
nullity lodged by the accused on the grounds invoked under paragraph
4 and, if appropriate, also under paragraph 5 of Article 281 of the
Code of Criminal Procedure.

The croquis was not produced at the hearing and was not made available
to the defence for the submission of a reply or objection as no public
hearing was ever held. The croquis which was produced in connection
with the plea of nullity of the accused (Article 281, paragraphs 4 and
5, of the Code of Criminal Procedure) has, moreover, not yet been seen
by the defence.

As Applicant's counsel explained at the Austrian Barristers'Conference,
1958, in connection with the problem of the "Attorney-General's
Croquis", the Attorney-General hopes to influence the decision of the
Supreme Court, to which not the slightest objection is raised, as the
plea of nullity of the defence serves the same purpose. The difference
lies only in the fact that the Attorney-General's Office is informed
of what is contained in the written plea of nullity of the defence. The
prosecution's answer to this in the croquis becomes known to the
defendant either too late or not at all. It is too late if the croquis
is produced only at the oral hearing. The defendant is then at a
distinct disadvantage because the hearing is prepared on the basis of
the croquis by the Rapporteur and the President of the Court; the
defence is not informed at all if, as in the present case, no oral
hearing is held and the plea of nullity is rejected at a session in
camera.

He submits that the Attorney-General also prepared a "croquis" on
the questions dealt with at the oral hearing in ... 1961.

After receiving the summons to the hearing fixed for ... 1961, together
with the notice of the dismissal of the accused's plea of nullity at
a non-public sitting, counsel for the defence would have had a suitable
opportunity of acquainting himself with the "croquis".
The Supreme Court still refuses today to allow any inspection of the
"croquis". The Attorney-General agreed, however, to allow counsel for
the defence to inspect that part of the "croquis" which dealt with the
material grounds of nullity (Article 281, paragraphs 9 - 11, of the
Code of Criminal Procedure). In accordance with that practice, the
Attorney-General, following a conversation with counsel for the defence
at which the latter requested authorization to inspect the "croquis",
was empowered to grant such authorization with the proviso that it
would not apply to that part of the "croquis" which related to the
formal grounds of nullity. As, however, the "croquis" formed a whole,
it was not possible to divide it up for purposes of inspection, and the
Attorney-General therefore ordered that an official copy be made of the
part of the "croquis" declared available for inspection and that this
copy be communicated to counsel for the defence.

When summoned to the oral hearing on ... 1961, Dr. Gürtler was only
informed that the Court "intended to discuss judicial considerations
within the framework of Article 290". Had it not been for his
possession of the copy of the "croquis", he would not have known the
nature of these considerations.

He states, however, that the copy of the "croquis" which was made
available to him was "incomplete, and decisive statements were
lacking".

Applicant's counsel further points out that the very fact that the
"croquis" is headed by a 'B', shows that it cannot have been complete,
since the 'B' must necessarily have been preceded by an 'A'.

He adds that, in the course of a conversation with Dr. T, General
Counsel and representative of the Attorney-General's Office during the
deliberation on the judgment, the latter drew his attention to the
amnesty clause concerning USA, unobtrusively embodied in the first
State Treaty Implementation Act, and also read out to him the following
passage of the "croquis" concerning the material-legal grounds for
nullity under Article 290 of the Code of Criminal Procedure:

"For the sake of completeness, it must also be pointed out that the
requirements of Article 24, paragraphs 2 and 3 of the Law of 25th July
1956 (Bundesgesetzblatt No. 165/56) are not fulfilled."

Counsel for the defence immediately drew Dr. T's attention to the fact
that, in the official copy of the "croquis" supplied to him, this
sentence was missing and the issue had not been raised during the oral
hearing. He stated that it was necessary for him to have an opportunity
to speak on this point before the Supreme Court. The representative of
the Attorney-General's Office not only agreed to this suggestion, but
personally submitted to the Supreme Court a joint request for the
reopening on this grounds of the proceedings which had already been
closed. The Supreme Court granted this request.
It was obvious that a hurried submission in reply, without adequate
preparation and simply on the basis of a private and incidental
conversation, did not make for a proper defence.

Dr. Gürtler further points out that, in its motives, the text of the
final decision (pages 3 to 8) corresponds word for word with the copy
of the "croquis" (pages 8 to 14) which he received on ... 1961. He adds
that there is a strong presumption that the remainder of the decision
is likewise a verbatim reproduction of that part of the "croquis" which
remained concealed from him.

Whereas the submissions made by the Respondent Government may be
summarised as follows:

It is submitted that the Application was manifestly ill-founded and
should be rejected in accordance with Article 27, paragraph (2) of the
Convention. The "croquis" does not constitute a violation of Article
6, and the question of "equality of arms" did not arise.

On behalf of the Respondent Government, reference is first made to the
general practice regarding the "croquis" system.

The Government admits that, if the Attorney-General's Office agrees
with the Judge-Rapporteur that the case should be heard publicly, it
sends him back the file with its "croquis". In this way, it informs the
Rapporteur, who has in effect requested its opinion on the appeal by
sending the file and plea of nullity, what line its representative
proposes to take at the hearing. The Attorney-General's Office does not
thereby become a party, but simply gives a legal opinion which is not
binding and thus does not commit the Supreme Court in any way. This is
clear from the introductory formula of the "croquis": "... The
Attorney-General's Office considers that, after the oral proceedings,
...".
It cannot be argued that the disclosure in a public hearing of the
"croquis", which has previously been kept secret, has a surprise effect
which prejudices the accused and his defence. It should not be
overlooked that the matter at issue, namely the proceedings in the
trial Court,are known to the accused (and his counsel) at first hand
and not merely from the judgment and record of the trial, on which
alone the Attorney-General has to rely. Therefore no surprise effect
is to be expected from a submission referring to such material,
especially since the Attorney-General's Office is precluded from
producing new facts and evidence in nullity proceedings before the
Supreme Court. The same applies to explanations of the legal position
which are equally accessible to professionalcounsel, in the light of
legislation, judicial practice, jurisprudence and literature, as to the
Attorney-General or his representative.

Hence, no infringement of the right of "equality of arms", or indeed
any encroachment on the rights of the defence, can be deduced from the
fact that the contents of the "croquis" are first made known to the
defence in open court.

In respect of the present Application, the Government submits as
follows:

At no stage of the proceedings in question did the Attorney-General's
Office express the view that the Applicant's plea of nullity should be
rejected in camera.

On the contrary, it agreed with the member of the Supreme Court
designated as Rapporteur that the appeal of the accused should be heard
in public session. The Attorney-General's Office did not learn that the
plea of nullity had been rejected at a closed session until it received
a copy of the Supreme Court's decision in ... 1961. The
Attorney-General was not present at that closed session and the
"hearing" to which he was entitled by law had consisted simply of his
opinion of supporting the Judge-Rapporteur's request for a public
hearing. It's comments on the grounds for nullity mentioned in
paragraph 281, sub-paragraphs 4 and 5, of the Code of Criminal
Proceedings, were intended simply as an opinion on the plea of nullity
for use in public session. They were thus of no avail and hence there
is no question of any infringement of the principle of "equality of
arms".

The Supreme Court is fully entitled, irrespective of the opinion of the
Attorney-General's Office on the question of whether the case should
be heard in open court or in camera, to reject in camera a plea of
nullity based solely on Article 281, Numbers 1 - 8 of the Code of
Criminal Procedure, if it is of the unanimous opinion thatthe plea can,
without need for further deliberation, be rejected as manifestly
ill-founded (Article 285 d, paragraph (1), Number 2 of the Code of
Criminal Procedure).

This was, indeed, the situation in this case; the statutory right of
the Attorney-General to be consulted before such a step was taken
(Article 285 c, paragraph (1), of the Code of Criminal Procedure)
was respected in that, when returning the file, he expressed the
opinion, which was not, however, binding on the Supreme Court, that the
plea of nullity should be heard in public.

Dr. Gürtler's assertion that he first heard in a conversation during
an adjournment of the Supreme Court proceedings of the existence of the
Federal Act of 25th July 1956, BGBI. Nr. 165/56, which had been in
force since 31st July 1956 and which he hoped (wrongly as it happened)
would favour his case, is open to doubt. It is certainly incorrect for
him to suggest that the Attorney-General's Office, in knowledge of this
law and of its application, had made in the "croquis" observations on
the case which had been concealed from him. In any event, the
Attorney-General is not under any obligation to lead defence counsel
by the hand and a failure to do so does not infringe the principle of
equality of arms.

It is, moreover, to be observed that, once the Applicant's plea of
nullity had been disposed of in camera, the proceedings on this plea
were at an end. The subsequent steps taken to fix a day for a public
hearing constituted an official intervention by the Attorney-General's
Office and the Supreme Court, and were solely in the interests of the
accused.

This intervention was based on paragraph 290, sub-paragraph 1, of the
Code of Criminal Procedure, whereby the Supreme Court must indeed
confine itself to the grounds for annulment expressly invoked or
clearly implied by the applicant. If, however, the Supreme Court is
convinced by any plea of nullity which has been lodged that the
criminal law has been wrongly applied to the prejudice of the accused
(paragraph 281, sub-paragraph 1, points 9 - 11, of the Code of Criminal
Procedure), it is nevertheless bound to proceed ex officio as though
such ground of nullity had been invoked.

In other words, the Supreme Court is obliged by law to give weight in
favour of the accused to any "material-judicial" defects in a judgment
which the defence has failed to invoke. The Attorney-General's Office
is equally bound to do so, as can be seen both from the general
stipulation of paragraph 3 of the Code of Criminal Procedure and from
paragraph 33, which provides that the Attorney-General, even when
considering judgments by criminal courts that already have force by
law, may enter a plea of nullity to ensure that justice is done.

Thus paragraph 290, sub-paragraph 1, of the Code of Criminal Procedure
actually means that the Attorney-General's Office and the Supreme Court
are empowered and obliged to go beyond the literal defence of the
accused and to help him to obtain his rights (favour defensionis).

In the present case, the Attorney-General's Office not only supported
the application of the Judge-Rapporteur for steps to be taken under
paragraph 290, sub-paragraph 1, of the Code of Criminal Procedure, but
also drew attention in its "croquis" to a further ground of nullity
operating in favour of the accused. This had not been raised either by
the Rapporteur or by the former or present counsel for the defence.

In the procedure which has thus been instituted under paragraph 290,
sub-paragraph 1, the Attorney-General's Office and the Supreme Court
have virtually acted in defence of the accused by correcting the
omissions of the legal representative whom he himself had appointed.

This has led to a considerable improvement in his position compared
with the position in which he found himself under the originaljudgment:
he has been spared deportation, while his fine has been reduced by half
a million Schillings and his prison sentence by almost six months.

In conclusion, the Government submits that a convicted person has no
grounds to complain of infringement of the principle of "equality of
arms" where he has been given the opportunity under the law of his own
country to appeal from the judgment of the Court of first instance. The
object of such appeal is, of course, to improve his position by the
reduction or quashing of his sentence. At the same time he knows that
his position cannot as a result of the appeal be made worse.

This is so in the case in question. The Public Prosecutor had refrained
from taking any legal steps and had made no counter-statement to the
accused's plea of nullity. As a result, whatever the Supreme Court
might have decided, the accused could not have found himself in a worse
position than that resulting from the original proceedings.

As to the question, whether or not the copy of the "croquis" received
by Dr. Gürtler was incomplete, the Government submits that Part 'A' of
the "croquis", as prepared by the Attorney-General's Office for the
Court, contained an opinion on the accused's plea of nullity (which
plea was based only on Article 281, Numbers 4 and 5 of the Code of
Criminal Procedure). Part 'B' contained a statement of the extent to
which the judgment of the Court of first instance contained mistakes
of law. These mistakes had not been pleaded, but the Attorney-General's
Office was in duty bound to point them out in the interest of the
accused at the public hearing. But since the plea of nullity was
rejected by the Supreme Court in camera, Part 'A' of the "croquis" had
become obsolete and there was no reason to provide Dr. Gürtler with a
copy.

THE LAW

Whereas the Commission has considered various elements of the system
of the so-called "croquis" as practised at the time of the proceedings
in question;

Whereas, in particular, the Commission has first noted that this system
was not provided for by law but was an administrative practice which
had been followed over a period of years; further, that the primary
object of the "croquis" was apparently to prepare the case for
submission by the Attorney-General's Office to the Supreme Court in
open session; that, nevertheless, the fact that a copy of the
"croquis" was sent to the Court before the opening of the session
resulted in the Court being aware of the Attorney-General's case before
it was made known to the appellant; that, indeed, it was possible that
the full contents of the "croquis" might never be made known to the
appellant;

Whereas, on the other hand, the Attorney-General's Office submitted his
case at a hearing at which the appellant was represented and thus had
the possibility to submit arguments in reply;

Whereas, the Commission, after appreciating these various aspects of
the "croquis" system, is of the opinion that the system, as then
practised, might have given rise to an abuse resulting in a prejudice
to the principle of equality of arms and generally to the fair hearing
of an appellant's case; that consequently the system was on the whole
undesirable;

Whereas the Commission has now been informed that, since, the period
of the proceedings in question, the "croquis" system has been modified
to the extent that the whole "croquis" is made available to an
appellant before the opening of the proceedings at which it is to be
used;

Whereas, although the Commission considers that the "croquis" system
was in general undesirable, the question before it is whether the
application of the system to the present Applicant in the proceedings
before the Supreme Court amounted to a violation of the Convention and,
in particular, of the provisions of Article 6 (Art. 6) in regard to the
guarantee to an accused person of the right of a fair hearing in the
proceedings against him;

Whereas the question whether the trial conforms to the standard laid
down by paragraph (1) of Article 6 (Art. 6-1) must be decided on the
basis ofa consideration of the trial as a whole, and not necessarily
on the basis of an isolated consideration of one particular aspect of
the trial or one particular incident (The "Nielsen" Case, Document A
67.185, page 80).

Whereas it is not denied in the present case that the Attorney-General
submitted a "croquis" to the Supreme Court before the Court began its
consideration of the case against the Applicant; whereas the question
arises whether or not this particular aspect of the trial caused
prejudice to the Applicant's defence, and if so, to such an extent as
to deprive him of a fair hearing in a general evaluation of the case;

Whereas, therefore, the various stages of the proceedings must be
looked at as a whole in arriving at such evaluation;

Whereas it is true that the "croquis" was sent to the Supreme Court
before the non-public session on ... 1961 at which the Applicant's plea
of nullity was rejected; whereas, however, at the subsequent public
hearing of the plea of nullity filed ex officio by the
Attorney-General's Office, the Attorney-General himself invoked legal
provisions which had not been invoked by the Applicant in his own plea
of nullity and which were wholly in the Applicant's favour; whereas the
parts of the "croquis" relating to these provisions were made available
to the Applicant's lawyer before the opening of the proceedings;

Whereas it must also be taken into account that the final outcome of
these proceedings was beneficial to the Applicant in that his sentence
of deportation was set aside, the fine imposed upon him was very
considerably reduced and his sentences of imprisonment in default of
payment of the fine were reduced from ten months to six months and from
three months to six weeks respectively;

Whereas the intervention by the Attorney-General in the present case
was to the benefit of the Applicant; whereas the use of the "croquis"
which was the basis of that intervention is not on the whole to be
considered as having prejudiced his right to a fair trial and thereby
violating the provisions of Article 6 (Art. 6) in that respect;

Whereas it follows that the Application is manifestly ill-founded and
must be rejected in accordance with Article 27, paragraph (2)
(Art. 27-2) of the Convention.

Now therefore the Commission declares this application INADMISSIBLE.[/align]