PROCEDURE

The case originated in an application (no. 33382/96) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Josef Fischer (“the applicant”), on 29 May 1996.

The applicant was represented before the Court by Mr. A. Adam, a lawyer practising in Neulengbach (Austria). The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The applicant alleged, in particular, that, in criminal proceedings against him, written observations of the Procurator General on his plea of nullity to the Supreme Court had not been communicated to him.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

By a decision of 6 January 2000 the Court declared the application partly inadmissible. By a decision of 20 March 2001 the Court declared the remainder of the application admissible.

As from 1 November 2001 the application was reallocated to the First Section of the Court. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

Neither the applicant nor the Government filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

On 12 May 1995 the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen) convicted the applicant, inter alia, under Section 164 of the Penal Code (Strafgesetzbuch), on numerous counts of handling stolen goods (Hehlerei) and sentenced him to three years’ imprisonment. The Regional Court found that the applicant, who dealt with antiques, had bought, between 1986 and 1988, antiques which had been stolen in the north of Italy.

On 14 September 1995 the applicant filed a plea of nullity and an appeal against sentence with the Supreme Court (Oberster Gerichtshof).

On 12 October 1995 the Procurator General (Generalprokurator) submitted the following comments on the applicant’s plea of nullity: “In the view of the Procurator General, the plea of nullity of the accused Josef Fischer can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested.“

On 21 November 1995 the Supreme Court dismissed the applicant’s plea of nullity and, as regards the appeal against sentence, referred the case to the Vienna Court of Appeal (Oberlandesgericht). On 23 January 1996 the Court of Appeal dismissed the applicant’s appeal.