[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]