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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]