FISCHER - Austria (Nº 27569/02)

Decision 6.5.2003 [Section I]

In 2001, the European Court of Human Rights gave judgment in a case introduced by the applicant, finding that there had been a violation of Article 4 of Protocol No. 7 in that the applicant had been tried and punished consecutively for two serious offences containing the same essential elements (No. 37950/97). The applicant requested a retrial in accordance with Article 363a of the Code of Criminal Procedure. The Supreme Court dismissed the application without a hearing.

Inadmissible under Article 6(1): Proceedings under Article 363a of the Code of Criminal Procedure were akin to an application to reopen criminal proceedings. This did not entail the determination of a criminal charge and so Article 6(1) did not apply. Moreover, the Court had no jurisdiction to examine whether a state had observed the final judgment in a case to which it was party, this being the role of the Committee of Ministers under Article 46(2) of the Convention: incompatible ratione materiae.