C O U N C I L OF 
E U R O P E 
EUROPEAN COMiMISSION OF IIUiMAN 
RIGHTS 
m 
DECISION OF THE COMMISSION 
AS TO THE ADMISSIBILITY 
of APPLICATICH No. 788/éo 
lod'-;cd by tho Government of 
the 
F e d e r a l Republic of 
A u s t r i a 
a g a i n s t tho Government of tho R e p u b l i c of 
I t a l y 
The European Comraission of Human R i g h t s , s i t t i n g 
i n 
p r i v a t e on Wednesday, 11th January I 9 6 I , 
w i t h 
Mr, C.H.M. WALDOCK p r e s i d i n g and i n t h e pre se nc e 
of: 
m/L. 
C. Th. EUSTATHIADES, V i c e - P r e s i d e n t 
P. FABER 
A. SUSTERHENN 
S. PETREN 
Mrs, G. JANSSEN-PETOSGHIN 
}Q1. 
M. Sj^lRENSEN 
N. ERBl 
F . ERMACORA 
F . CAST3ERG 
G. SPERDUTI 
Mr. 
A.B. McNULTY,; Secre-tary of t h e •-Comraission; 
A 60.922 
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788/éo 
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Giovanni/johann Huber? 
13 3^ears and l\. months for murder | 
Paolo/?aul Unterkircherr 
10 years for murder. 
The _other accused, including Luigi/Alois Bergmeister, were 
either acquitted or discharged for lack of evidence. 
Following an appeal by certain of the accused and by the 
Public Prosecutor, the Trent Court of Appeal, again consisting 
of two professional roagistrates and six jurymen -.four 
^ 
I t a l i a n - s p e a k i n g and tx<ro Gerûian-speaking - pronounced 
on 
27t h March 1958 the follov/ing 
s e n t e n c e s : 
L u i g i / A l o i s Ebnerj 
Ij'iiprisonment f o r l i f e 
(with one y e a r 
of day-time solitary" confinement) for murder, 
i n s u l t i n g 
behaviour t o o f f i c i a l s 
and a f f r o n t 
t o t h e 
n a t i o n ; 
F l o r i a n o / F l o r i a n W e i s s t e i n e r , I s i d o r o / l s i d o r 
U n t e r k i r c h e r 
and Giorgio/Georg K n o l l s e i s e n : 
17 y e a r s and 10 months 
im.prisonment on the same counts ° 
Bernardo/Bernhard S b n e r : 
I7 y e a r s and 2 months 
iriipr isonraent on the sa^ie counts ° 
P a o l o / r a u l U n t e r k i r c h e r : 
12 y e a r s imprisonment on t h e 
^JÀ) 
same counts ^ 
G i o v a n n i / j o h a n n Huber: 
1 y e a r and 2 months 
imprisonment 
f o r I n s u l t i n g behaviour t o o f f i c i a l s 
and a f f r o n t 
t o 
the 
n a t i o n . 
In the case of t h e l a t t e r t h e Court dismissed t h e 
charge 
of murder f o r l a c k of evidence and, n o t i n g t h a t he had served 
h i s term of imprisonment while a w a i t i n g t r i a l , 
ordered 
h i s 
iroi-aediate r e l e a s e . 
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78'VoO 
At the hearing of loth March 19585 "^hc defence had asked 
the Court to visit the place vrhere* the body was found^ as the 
Bolzano/Bozen Court had done, and to take the evidence of 
Giovanna/johanna Ebner , who ha d cros s ed the br idge shor tl^?" 
after the discovery of Falqui's body, and of Dr. Koflor, 
local doctor of the neighbouring village of Vandojes, who had 
certified the death. 
The'Court of Trent agreed to visit the 
scene of the incident, and did so on 13th March I958, but 
refused to take the evidence of Giovanna/Johanna Ebner and 
Dr. Kofler, on the grounds i;hat the circumstances to which 
this evidence related (positioii of the body, in the case of 
the former, and the nature of Falqui^s injuries, in the case 
of the l a t t e r ) were irrelevant ("inconferenti"). 
The Court 
also decided in response to the suggestion of the plaintiff 
in the civil action and the prosecution-that the visit to the 
scene of the incident should take place in the presence of the 
vjitnesses. Lombarde and Calvia, aforementioned. 
Follov/ing the further appeal of the accused, the Court of 
Cassation, on léth January 1960, delivered a judgment: 
striking out, by virtue of an,amnesty, the offences 
of insulting behaviour to officials and affront to the 
nation charged against Bernardo/Bernhard Ebner, 
Isidoro/lsidor Unterkircher, Floriano/Florian Weisst"ëiner, 
Giorgio/Georg Knollseisen,"Paolo/paul Unterkircher and 
Giovanni/johann Ruber; 
stating that the Court of Trent had deliberated 
"ultra petita^^ by disallowing the extenuating cir-
cumstances in respect of Luigi/Alois Ebner which the 
Bolzano/Bozen Court had allovjed; 
quashing the judgment absolutely on these two points| 
788/éo 
s u b s t i t u t i n g t h e follou5-ng s e n t e n c e s for 
t h o s e 
pronounced by the Court of Appeal; 
25 y e a r s , 5 months'and l o days imprisonment 
f o r 
L u i g i / A l o i s 
Ebner; 
16 y e a r s im.prisoniiient for Bernardo/Bernhard 
Ebner, 
I s i d o r o / l s i d o r U n t e r k i r c h e r , F l o r i a n o / F l o r i a n W e i s s t e i n e r 
and Giorgio/Georg 
K n o l l s e i s e n ; 
10 y e a r s and 8 months imprisonment f o r 
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p a o l o / p a u l U n t e r k i r c h e r ; 
d i s m i s s i n g tho remainder of the a p p e a l . 
The Commission n o t e s t h a t 
the t h r e e 
above-mentioned 
judgments concern not only the e v e n t s of t h e n i g h t 
of 
1 5 t h / l é t h August 1956, but a l s o a minor i n c i d e n t which took 
p l a c e on 29t h June 195^ between some of the youths i n the 
case 
and workmen b u i l d i n g a h y d r o - e l e c t r i c dam i n t h e 
F u n d r e s / P f u n d e r s 
v i c i n i t y . 
In view of the f a c t , 
however, t h a t 
A p p l i c a t i o n 
No. 788/^0 i s not concerned wibh t h i s i n c i d e n t or 
t h e 
p r o c e e d i n g s i n c o n n e c t i o n w i t h IL, i t i s unnecessary 
to go 
f u r t h e r 
i n t o t h i s mat t o r . 
THE COMPLi^IFTS OF THE APPLICANT GOVERFIEUT 
Whereas the A p p l i c a n t , t h e A u s t r i a n Government, 
claims 
t h a t the Respondent 
( I t a l i a n ) Govern-ient, x^^as g u i l t y , 
i n 
connection w i t h t h e above f a c t s , 
of a b r e a c h of t h e u n d e r -
t a k i n g s g i v e n by the I t a l i a n Republic under A r t i c l e s 
6, 
paragraphs 
(1"), (2) and (3) (d) and l)_^ of the Convention 
for 
the P r o t e c t i o n of Human R i g h t s and Fundamental Freedoms; 
whereas t h e s e complaints a r e s e t . o u t i n g r e a t e r d e t a i l 
below; 
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788/60 
THE PROCEEDINGS BEFORE THE COMISSIOJ 
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Whe rea s the f i r s t stage of the proceedings, as laid 
down in the Convention and the Rules of Procedure, consists 
in the examination by the Comniission of the admissibility 
of the Application, withoub regard to the merits of the case^ 
whereas tho order of these proceedings has been as follows: 
By order of 12th July 19^'05 made in accordance ­with 
Rule I4I]. of the Rules of Procedure, the President of the 
Commission instructed the Secretary­General of the Council 
of Europe to communicate Application No. 788/60 ^o ^^® 
Italian Governi'aent and to invite that Government to submit 
to the Commission their written observations on the admissi­
b i l i t y of the said Application. 
The written observations of the Italian Govermaent 
reached the Secretariat on 31st August 1960. 
In accordance 
with bhe orders of the President of Jlst August, 28th October 
and iSth November i960, the Austrian Government replied to 
these observations on 26th Oofcober i960 and on 3rd December 
i960 the Italian Governraent submitted their supplementary^ 
x^rritten observations (Rule I4.6 (!) and (2) of the Rules of 
Procedure). 
On 17th December I960, the Coinmission, in plenary 
s i t t i n g , decided; 
to give the case priority (Rule 38 (1) ef the Rules 
of Procedure), in response to a request by the 
Austrian Government to vihich the Italian Government 
raised no objection; 
to invite the representatives of the parties to 
appear before the Commission on Saturday, 
7th January I96I3 to make oral submissions regarding 
the admissibility of the Application and in particular 
on the thjr^ee specific points raised by the Coiiiaission 
(Rule 1^6 (1) in fine of the Rules of Procedure), 
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788/60 
The hearing in the presence of the parties took place on 
the mornings of 7"th &nd 9th January I961. The following" 
appeared before the Commission (Rule 36 (1) of the Rules of 
Procedure ) : 
for the Austrian Government: 
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Mr. Hans RFICHÎ'4A.NN (Austrian Permanent Representative to 
the Council of Europe), Agent, 
assisted by 
Mr. Rudolfs KIRCHSCHUGER (Legal Adviser to 'the ­Austrian 
Ministry for Foreign Affairs) 
and 
Mr» Armand MERGEN (Professor of the Mainz Faculty of Law), 
Counsel. 
for the I t a l i a n Government: 
Mr. Riccardo MONACO (Legal Adviser to the 
I t a l i a n 
Ministry for Foreign Affairs ) ; Agent, 
a s s i s t e d by 
Mr. Giacorao DELITAIA (Professor of the Milan Faculty of 
Law), 
Mr, Giorgio BOîlBASSEI DE VETTOR ( I t a l i a n Permanent' 
Representative to the Council of Europe), 
Mr. Ettore M/iSELLI (Magistrate attached to the I t a l i a n 
Ministry of J u s t i c e ) , 
Mr. Luigi LAURIOLA (Assistant to the I t a l i a n Permanent 
Representative to the Council of Europe) 
and 
Mr. Marco VIANELLO­CHIODO (Attaché, I t a l i a n Ministry 
for Foreign A f f a i r s ) , 
Counsel. 
788/60 
At the above­rinntioned hearing on 9'^h January 1961,­
the I t a l i a n Governm­ent ,, Respondent , presented the following 
w r i t t e n conclusions; 
'''The ""Italian GoveDiment/ following the hearings 
on the adm.lsslbili'..y of Application No. 708/60 by the 
Austrian Goverra­aent, which were held at Strasbourg on 
7th and Qth January 1961^ and r e f e r r i n g to the 
written and oral submissions made in the course of 
the proceedings , presents the f ollovjing X\T­.''itten 
conclusions: 
■■May i t please rhe ijluropean Coriimisslon of Hui'aan 
Right, 
" " to declare one Application inadmissible 
r a t i one t em.p oris oh th s gr ound tha t t he F e d er a­1 
RVpuDlTc~bT~*Âus"tria, which acceded to the Convention 
;ainri­G that 
judgment 
uch 
■' ■" lo decioj^^^ pursuant tu Arci^le 27, 
paragraoh 3 OL" tho Conventio­^, that the Application 
is inadmissible on che g­^ound of non­exhaustion of 
domesti.î reiiiedror, ^ritrrn the meaning of A r t i c l e 26 
of the Oonvc'?Cion; 
L'lr&t bec^.use the accused did 
no "3 
ouest 
Dh( 
a ^e be trouc:ht before anothe: 
court (t Imccslcrc C6J. pr oceci lent C ) and_, second^, 
becauG­. ^:he soeusec^ o'sx fjnal aopeal did not a v a i l 
thermse 1 /eL of a 11­'■'cOy open to them. not having 
expresGxy clc^:imf^d i­lr o t i e ^re^.^'J Assizo Cour: of 
Appeal had infringed Ai­ticJes.b and ILJ. of the 
Convention^ nc^ ­ mc:­o espoc'all^^ with regard to 
the alxegd] v i o l a t i o n of Article ll| and A r t i c l e 6^ 
paragraph 2 of the Oon^^^ontlon - that there had been 
an in­f^r'^ .ogem.ent of Ar"^icles 3 snd 27 
paragraph 2 of 
the Constitution of the I t a l i a n Republic ; 
­ to r e j e c t the Application accordingly." 
The Austrian GoverrmionG , Applicant ^ likewise 
submitted 
m 9th January I961 che following conclusions^ 
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788/60 
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on the 
4-, 
invitation of the Comriiission and with-
reference to t he wr i tt e n a no ora1 submi s s i ons pr e s e nt e d, 
the Austrian Government has the honour to put forward the 
following conclusions for the Commission's attention; 
^f 
Viol^'^^Q^ Q-^ Human Rights throughout the proceedings 
against the Pfunders accused' 
'"The Austrian Government lodged its application on 
the basis of the following provisions of the Human Rights 
Convent ion; 
1. 
Violation of the rights safeguarded by Article 6, 
paragraph 3(d) of the Convention in that the testimony -
of the witnesses Johanna EBNER and Dr. KOFLER was 
rejected as not pertinent to a m.atter which the courts 
declared to be essential and relevant in respect of the 
witnesses called by the prosecution and irrelevant 'in 
respect of the above witnesses called by the defence in 
connection with the same points. 
(Section III of the Aprlicatio'hT 
3. 
Violation of tne rights safeguarded by Article 6, 
paragraph 1, of the Convention as a result of; 
(a) the composition of the Court - four out of the six 
o 
vehement 
the plaintiff 
01 bhe Public Prosecutor and of 
iection III/3 of the Application)-
(b) the violation of the right set forth in Article 6, 
paragraphs 2 and 3(d). paragraph 1 of that Article, 
by its general implications^ summarises the 
succeeding paragraphs. 
[j.. 
Violation of the rights safeguarded by Article ik, in 
that the violations of hum.an rights set forth above un-
doubtedly resulted from the fact that the young men or 
Pfunders were of a different ethnic and linguistic 
(national) origin from, the m.ajority of citizens of the 
Italian Republic (Application^ Section III/3). 
V. 
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788/60 
II* Competence of the European Commis s ion of Human Rights 
"The Commission is com.petent for the following 
reasons; 
1. "The facts set forth in (I) above and contained in the 
Application lodged by the Austrian Governraent constitute 
a breach of the Convention for which the Austrian Govern-
m.ent believes it can hold the Italian Republic responsible 
(Article 2i|.). 
2. "From the time of deposit of its instrument of 
ratification, Italy was under a duty to guarantee to all 
persons coming within its ."jurisdiction the rights and 
freedoms defined in Section I of the Convention. 
"Austria has been a High Contracting Party since the 
moment of its own ratification of the Convention and is 
entitled to lodge an Application against another High 
Contracting Party even in respect of events which occurred 
prior to that ratification. The possibility of a condition 
of reciprocity, which is expressly provided for in 
Article 1^6, paragraph 2, of the Convention or Article 36 
of the Statute of the International Court, is not 
mentioned in Article 2[j- of the Convention. 
"As a secondary count, it may properly be submitted 
that the trial of the Pfunders young men should be 
regarded as a vihole. It follows that the date of the 
judgment rendered by the Court of Cassation (i960) 
should be considered as- the date of the final decision 
of the domestic courts, 
III• Exhaustion of domesbic remedies 
1. 
So far as concerns Applications lodged by States 
with the object, not of affording diplomatic 
protection to nationals of the Applicant is State 
but of claiming a breach of the Convention by 
another High Contracting Party, the rule concerning 
the exhaustion of domestic remedies is applicable 
only to the extent that a final decision has been 
rendered by the domestic courts. 
2. 
Secondarily, we submit the following; 
(a) In their appeal to the Court of Cassation 
(cf. x'Vppendix C and our written observations) 
the accused adduced in subst-nce, basing 
themselves on Article 2i| of the Italian 
788/60 
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Constitution, the reasons and evidence under-
'lying the Austrian Application; There was no 
need to quote e xpre s s is ve r bi s the Articles of 
the Convention wlnlch had been violated, since 
in substance the Italian Constitution coincides 
with Articles 6 and llj. of the Convention, 
invoked by the Austrian Government. 
(b) It was not possible in law for counsel defending 
the Pfunders young men to challenge the jur^^ on 
the basis of Article 55 and Articles 61 
et seqq of the Italian Code of Criminal 
' ■; ■ ■ . Procedure .-J^ Indeed, no such , challenge could 
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be èxpec'téd' of them. A reque'st ' to-have th'é" 
case transferred"to another court would have 
been Ineffectual, or, in the unlikely event 
of its being agreed to, would have resulted 
in a jury of even less favourable ethnic 
composition. 
"For these reasons, 
"May it please the Commission; 
1. 
to accept the Application lodged by the 
Federal Republic of Austria and entered in 
. the Register under File No. 788/60, and'to 
declare it admissible; 
2. 
to act upon the Application by proceeding in 
accordance v/ith Articles 28, 29 and 30 of the 
Convention." 
At the close of the hearing, the Commission deliberated in 
private on 9th (afternoon), 10th and 11th (morning) January 
1961 on the admissibility of the Application. 
The result of 
these deliberations is set out in the present decision. 
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788/60 
AS TO THE L/.W. 
VJhereas the Commission^ at t h i s stage i n the 
p r o c e e d i n g s , 
i s c a l l e d upon to decide v a r i o u s p o i n t s a r i s i n g as to the 
a d m i s s i b i l i t y of A p p l i c a t i o n No. 788/6O; 
l ^ e r c a s the I t a l i a n Government ha s f o r m a l l y s u b m i t t e d two 
prelim.inary o b j e c t i o n s ^ 
one r e l a t i n g to the Commission's com-
petence r a t i o n e temporis and the o t h e r to the e x h a u s t i o n of 
i n t e r n a l remedies^ 
I . 
COMPETENCE RATIONE TEMFQRIS 
Where_asj i n i t s 
supplementary w r i t t e n o b s e r v a t i o n s of Jfvd 
December I96O5 the I t a l i a n Government s t a t e d t h a t i t 
r e s e r v e d 
the r i g h t to submit at the h e a r i n g a p r e l i m i n a r y o b j e c t i o n 
con-
c e r n i n g the A p p l i c a n t Government's competence to r e f e r 
to 
the 
Commission f a c t s p r i o r to i t s r a t i f i c a t i o n of the 
Convention; 
\4hereaS3 at the s a i d h e a r i n g the Agent of the Respondent 
Government r e c a l l e d t h a t I t a l y had d e p o s i t e d i t s i n s t r u m e n t of 
r a t i f i c a t i o n on 2 6 t h October 1955 ^nd A u s t r i a on J r d September 
1958 and t h a t the Bolzano i.ssize Courts the Trent Court of 
Appeal and the Court of C a s s a t i o n hod r e n d e r e d t h e i r 
d e c i s i o n s 
on 16th July 1957:, 27th March I958 and l 6 t h January 1960 r e s -
p e c t i v e l y ; whereas ho claimed t h a t the f a c t of a S t a t e becoming 
8 p a r t y to 0 m u l t i l a t e r a l Convention^ only a f f e c t s f o r 
the 
time 
being the o t h e r S t a t e s ' v i h i c h have a l r e a d y become p a r t i e s to the 
Convention at t h a t time 5 t h a t 
the I t a l i a n Government, 
accord-
inglys on 26t h October 195'55 had g i v e n an u n d e r t a k i n g only 
i n 
r e s p e c t of those S t a t e s which were a l r e a d y C o n t r a c t i n g 
P a r t i e s , 
to the e x c l u s i o n of A u s t r i a ; ' t h a t ' I t a l y and A u s t r i a had not 
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788/60 
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assumed mutual obligations in respect of one another until Jrd 
September 1958| that he had deduced therofrem, •in his conclusions 
of 9^^ January I96I3 that tho Commission was not competent 
ratione temporis to examine the application, since only the 
judgment of the Court of Cassation vias subseo^uent to 3rd Septem-
ber 1958 ^^^ ^he Applicant Government, had lodged no complaint 
against that judgment as such| 
vrhercas the orincipal argument of the representatives of 
tho Austrian Government at tho hearing in the prcsenco of the 
parties and in their final conclusions was that the question of 
competence r a tie ne temperi s was not the same for the Applicant 
State aa for the Respondent State; that, although the l a t t e r , 
in the jurisprudence of the Comraission, was bound only from tho 
date of deposit of the instrument of ratification, the under-
taking given on that date took effect immediately and absolutely; 
that the said undertaking did not take effect in respect of 
other States but in respect of all persons within the said 
State's jurisdiction, in accordance with /irticle 1 of the Con-
vention; that i t was accordingly a general legal obligation which 
had effect irrespective of which other States hod or had not 
ratified the Convention; that the Commission was competent, 
ratione totnporis, to examine a complaint lodged by an individual 
by virtue of Article 25 of the Convention provided that the 
State against which the complaint was lodged was s Contracting 
Party at the time of the lodging of the Application; that simi-
larly a Contracting State was entitled, es soon as i t had 
deposited tho instrument of retificetion; to make application 
to the Commission in respect of another Contracting Party, even 
in relation to facts which had occurred prior to the deposit of 
the instrument; that indeed Article Z[\. of tho Convention, unlike 
/j-ticle 56 of the Statute of the Internationel Court of Justice 
and Article 1|6; Paragraph 2 of the Convention, made no provision 
• / • 
15 - 
788/60 
for reciprocity as between the Applicant and Respondent States; 
whereas the Austrian Government clained, as on accessory argu-
ment, that the t r i a l of the Fundres/Pfunders youths should be 
regarded as a whole and i t followed, therefore, that the 
judgment rendered by the Court of Cassation, which was sub-
sequent to 5rd September I958, should be considered as tho 
final decision of the domestic courts, whatever the dates of the 
judgments pronounced by tho Court of f i r s t instance and the 
Court of appeal; 
Whereas, furthermore, the Austrian Government expressed 
the opinion, at the hearing on 7'th January 1961, that to present, 
at this stage, an objection of incompetence ra11one tcmporis 
would be in conflict with Rule l|i^ of ,the Coiranission's Rules of 
Procedure; whereas, this was disputed by the Italian Governraent; 
Whereas, however, i t is no longer necessary to interpret 
the relevant provisions of the Rules of Procedure, since the 
Austrian Government did not insist, at the hearing on 9th 
January 196I or in i t s final submissions of the same date, on 
this procedural objection and, moreover, availed itself 
fully 
of i t s right to reply to the Italian argum.ents on this point; 
where-as, furthermore, i t is the duty of the Com.mission to 
pronounce, even ex officio, on i t s competence ratione temporis; 
Decision of the Comraission 
Whcroj^, under /irticlo 66 of tho Convention, the Republic 
of Italy became a Party to the Convention on 26th October 1955^ 
and the Republic of Austria nearly three years later, on J^^"^ 
September 1958; whereas tho incidents at Pfunders and all the 
ensuing proceedings in the Italian courts, which are the sub-
ject of the complaints of the Austrian Government^ took place 
after Italy had become bound by the provisions of the Con-
ventions; whereas, on the other hand, the proceedings in the 
788/60 
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Assize Court st Bolzano/Bozen and those in the Court of ^.ppeal 
of 'Trent took place before the date when Austria herself became 
bound by the provisions of the Convention and acquired the right 
under Ar^ticle 2I4. to refer &'a alleged breach of tho Convention 
to the Coriimission; and vjhereas only the final appeal before the 
Court of Cassation at Rone took place after that date; 
Where££, accordingly, it has first to be considered whether, 
under Article 2l|, the Austrian Governrrent ' is entitled to refer 
to the Gomjuission Qn alleged breach of the Convention with res-
pect to those proceedings which took place before Austria her-
self possessed any rights or obligations vis a vis Italy under 
the Convention; 
Whereas Article Zh^ empowers "any Hirh Contracting Party" 
to refer to the Coriii"ission "any alleged breach of the provisions 
of the Convention by another High Contracting Party"; and 
whereas neither article 2I4. nor any other .article of the Con-
vention in terms provides that a High Contracting Party's power 
to refer alleged brooches of the Convention "co the Commission 
Is to be limited to breaches alleged x^Jith regard to m.atters which 
have arisen after the ratification of the Convention by that 
party; whereas, riiorGOver-^ in the Msvr-ommatis Palestine Con-
cessions Case (Series A, No, 2, p.35) "the Perm.onent Court of 
International Justice has said "that, lo cases of doubt, juris-
diction based on an international agreement embraces all dis-
putes referred to it after its establishment, In the present 
case, this interpretation aooears to be Indicated by the terms 
of Article 26 itself where it is laid down that 'any dispute 
whatsoever .... which raay arise' shall be submitted to the Court. 
The reservation m.ade m many arbitration treaties regarding 
disputes arising out of events previous to the conclusion of 
the treaty seems to prove the necessity for an explicit limita-
tion of jurisdiction"; whereas it follows that the mere fact 
that Austria only acquired the right to refer alleged breaches 
of the Convention to the Commission at a later date does 
not by itself suffice to debar her fro': filing a 
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17 - .. 
788/60 
complaint with respect to the proceedings before the Assise 
Court at Bolzano and the Appeal Court at Trento; 
Whereas, however, the point remains as to whether Austria 
raay nevertheless be debarred from, filing o complaint with 
respect to the proceedings in the f i r s t two courts by reason 
of the facts (a) that Italy at that date had obligations under 
the Convention only vis a vis the other existing signatories 
and not vis à vis i us brie or (b ) that Austria herself, not 
being a -Party ot that datCc was not bound by the obligations 
of the Convention so bhot Italy cannot now have a reciprocal 
right to complain to the Coriiraission concerning matters aris-
ing within the jurisdiction of -^ustria at the period when the 
proceedings before the Assise Court and the Court of Appeal 
were taking place; 
" Whereas in the Preamble to the Convention the High Con-
tracting Parties, having referred to the Universal Declaration 
of Huraan Fights proc^laimed by the General .".ssembly of the 
United Notions on 10th Decer.ibcr 19^8 -
(a) recited that "the aim of the Council of Europe is 
the achievement of grea^'er unity between i t s Members end that 
one of the m.cthods by which that aira is to be pursued is the 
m-aintenance and further reslisDtion of Eurr.an Rights and 
Fundamental Freedoms"; 
(b ) reaffirm.cd their "profound belief in those Funda-
mental Freedoms which arc tho foundation of justice and peace 
in the world and are best m^aintained on the one hand by an 
effective political democrocy and on the other by a common 
understanding and observance of the Human Rights upon x-jhich 
they depend"; 
. / 
788/60 
- 18 -
(c) stated their resolve, "as the Governments of European 
countries which are like-minded and have a common heritage of 
political traditions^ ideals, freedom arid.- the rule of law, to 
take the f i r s t steps for the collective enforcement of certain 
of the Rights stated in the Universal Declaration"; 
and whereas i t clearly appears from these pronounccraents that 
the purpose of the High Contracting parties in concluding the 
Convention was not to concede to each other reciprocal rights 
and obligations in pursuance of their individual national in-
terests but to realise the aims and ideals of the Council of 
Europe, as expressed in i t s Statute, and to establish a coramon 
public order of the free 
democracies of Europe with the object-
of safeguarding their comimon heritage of political traditions, 
ideals, freedom and the rule of law; 
Whereas to achieve this purpose the High Contracting Par-
ties, by the express terras of Article 1 of the Convention, 
undertake to secure the rights and freedoms defined in Section 1 
of the Convention to everyone within their jurisdiction with-
out any exception; whereas, furthermore, Article llj. in terms pro-
vides that 
"Ihe enjoyraent of the rights and freedoms set forth 
in this Convention sh^ll be secured without discrimination 
on any ground such as sex, race, colour^i langucgc, religion, 
politiccl or other opinion, national or socirl origin, 
association with a national minority, property, birth or 
other status." 
Whereas, therefore, in becom.ing a Party to the Convention, a 
State undertakes; vis à vis the other High Contracting Parties, 
to secure the rights and free doras defined in Section 1 to every 
person within its jurisdiction, regardless of his or her 
nationality or status; whereas, in short, it undertakes to 
. / . 
" 19 - 
788/60 
secure these rights and freedoms not only to i t s oxvn 
nationals and those of other High Contracting Parties but 
also to nationals of States not parties to the Convention and 
to stateless persons^ cs the Commission itself has expressly 
recognised in previous decisions; whereas it follows that the 
obligations undertaken by the High Contracting Parties in the 
Convention are essentially of an objective character, being 
designed rather to protect the fundaraentel rights of individual 
human beings from irJ?ringement by any of the High Contracting 
Pcrties than to create subjective and reciprocal rights for the 
High Contracting Parties thom.selves; 
Whereas the objective character of the engagements under-
taken by the High Contracting Parties sim-ilarly appears in tho 
machinery provided in the Convention to guarantee their ob-
servance; whereas this machiner^^, as was eraphasised in the 
travaux préperato_ij?es of the Convention and as is expressly 
stated in the third passage from, the Prearable which has al-
ready been quoted, is founded upon tho concept of a collective 
guarantee by the High Contracting Pertios of the rights and 
freedoms set forth in the Convention; whereas to this end 
Article I9 provided, that to ensure the observance of the en-
gagem.ents undertaken by the High Contracting Parties there, 
should be set up (a) a European Comimission of Human Rights und 
(b ) 8 European Court of Huraan Rights; end vrheroas Article 2i| 
provides that "any High Contracting Party raay refer to bhe 
Commission, through the Secretary-General of the Council of 
Europe. any alleged breach of the provisions of the Convention 
by another High Contracting ,Party" ; ^jhereas by this i^rticle, 
therefore s tho High Contracting Parties have erapowered any one 
of their nuraber to bring before the Commission any alleged 
breach of the Convention, regardless of whether the victiras of 
the alleged breach arc nationals of the applicant State or 
/ 
788/60 
- 20 
whether tho alleged breach otherwise particularly affects the 
interests of the applicant State; whereas i t follows that a 
High Contracting Party, when i t refers an alleged breach of the 
Convention to the Coviiraission under /jr-ticle 2li., is not to be 
regarded as exercising a right of action for the purpose of 
enforcing i t s own rights, but rather as bringing before the 
Coramission an alleged violation of the public order of Europe; 
WTncreas i t is further to be observed that, subject to the 
exhaustion of the doraestic reraedios, all tho High Contracting 
Parties other than ^.ustrie were entitled, under Article 211, to 
refer to the Comraission at that date eny alleged breach of the 
Convention with respect to the proceedings in the Assize Court 
at Bolzano/Bo'zcn and the Appeal Court of Trent; and whereas i t 
is more consistent with the system of collective guarantee 
envisaged in the Prearable to the Convention that j^ustria, 
after 
bccoraing a Party, should have the same povrers under Article Zl\. 
as the other High Contracting Parties; 
Where as., accordingly, having regard to the objective 
character of the obllgetions end rights established in the Con-
vention, to the unqualified terras in which the right to refer 
alleged broaches of the Convention to the Conraission is formu-
lated in Article 2l|., and to the system, of collective guarantee 
of which that Article is an expression, the Commission is of 
the opinion that the fact that at the dates of the proceedings 
in the Assize Court and the Court of Appeal Italy had no obli-
gations towards Austria under the Convention does not debar 
Austria from now alleging e breach of tho Convention with 
respect to those proceedings; 
^fyhereas i t must be admitted that under this interpretation 
of Article 2L1. Austria has the right to file 8 complaint against 
Italy with regard to raotters arising before Austria became a 
- 21 - 
^788/60 
Party to the Convention on 3^^ September I958; whereas Italy 
does not hove chc right reciprocally to file 0 complaint 
against ..ustria in respect of occurrences before that date; 
where_^os, hoV7Gyer, this absence of reciprocity in regard to the 
element of tirae sprjngs solely frora the fact that before Jrd 
September 1958 Austria vjas not subject to the régime of the 
Convention and not from any differential treatment of the High 
Contracting Parties in Article 2l|. itself; and whereas, if the 
Fic'h Contracting Par-ties had wished to racke the right to file 
a com.pleint under -'rtlcle 2li. subject to a condition of reci-
procity in regard to the cloraent of time, i t was open to them 
to insert en express condition to that effect in Article 2lj^, 
but they did not do so; whereas, accordingly, the Commission 
is of the opinion that the feet that under Article 2I4. Italy 
does not have a reciprocal rjght to file a comploint against 
Austria in respect of raet bers arising before 3rd September 
1958 is no ground for denying to Austria the right to file a 
complaint against Italy x-jith regard to the proceedings in the 
Assize Court ot Bolzano and the Court of Appeal at Trent; 
IHacrcas it follows that, in the opinion of the Commission, 
Justria was cntiblcd in her Application of 11th July I960 to 
refer to the Coriimission alleged breeches of the Convention with 
regard to the proceedings in tho Assize Court ot Bolzano/Bozen 
and the Court of ^^ppcel of 'Trent, vjhich book place before she 
bccsrae 0 Party to the Convention on ^rà. September I9585 as well 
OS V71 th regard to the proceedings in the Court of Cassation 
vAilch took plocc eftcr thet date; whereas it therefore becomes 
unnecessery to consider whether the fact that the decision of 
the Court of Cessation at Rorao was rendered after 3rd September 
1958 would in any event be sufficient to entitle the Austrian 
Government to file an .application viith regard to tho esrlior 
proceedings in the ;_ssize Court end Court of Appeal. 
788/60 
- 22 
Whereas, accordingly, the Commission has jurisdiction 
ratione temporis with respect to the several breaches of the 
Convention alleged in Application No. 788/60 end the Italian 
Government's objection to the Commission's jurisdiction ratione 
temporis with reference to the proceedings in tho Assize Court 
et Eolzano/Bozen end Court of Appeal of Trent must be rejected; 
- 23 - 
788/60 
1 1 . 
THE EXHZ-USTION OF DOffiSTIG R^] EDJES 
V^ereas a p p l i c a t i o n mey be mrde to the Co.'iiraission, 
i n 
accordance wi t h A r t i c l e 26 of the Convention, only a f t e r 
the 
e x h e u s t i o n of doraestic rcracdies, 
as t h i s i s g e n e r a l l y 
u n d e r -
stood according to the g e n e r a l l y r e c o g n i s e d p r i n c i p l e s of 
I n t e r n a t i o n e l law; whereas : > t i c l e 27 p e r a g r a p h (5) 
s t a t e s 
t h a t the Coriimission s h e l l r e j e c t 
eny a p p l i c a t i o n found 
i n a d -
m i s s i b l e under 
the terras of A r t i c l e 
26; 
l^Jherces the Respondent Govcrnrncnt claimed t h a t 
the 
a p p l i c o t i o n was i n a d m i s s i b l e on the ground of f a i l u r e 
to e x -
h a u s t doraestic r e m e d i e s ; 
Whereas the A u s t r i c n Government o b j e c t e d t h e t the Rule 
rcgerdinc--' the e x h a u s t i o n of domestic remedies did not 
apply 
to a p p l i c a t i o n s lodged by S t a t e s i n eccordencc wi t h A r t i c l e 2l[ 
of the 
Convention; 
- • APFLIC.„BILITI OF THE RULE 
Submissions of the 
p a r t i e s 
V/here0s the I t a l i a n Governraent argued i n the f i r s t 
place 
t h a t , 
according to u n i v c r s c l l y r e c o g n i s e d i n t e r n a t i o n a l 
j u r i s -
prudence end t h e o r y , 
on 
i n t e r n e t i o n a l a u t h o r i t y raight not 
examine en appeal if i t v/erc p o s s i b l e to prove the 
e x i s t e n c e , 
i n the domestic l e g a l systera of the S bete vrith 
j u r i s d i c t i o n 
over the i n d i v i d u a l x^ho claimed to have s g r i e v a n c e ^ of 'a 
dom.estic reraedy which was at once c c c c s s i b l c end l i k e l y 
to 
be e f f e c t i v e 
end a d o q u r t c ; x-jherees i t c i t e d - 
i n t e r 
a l i o , 
the 
R e s o l u t i o n adopted at Grenede i n 195^ by the 
I n t e r n a t i o n a l 
Law I n s t i t u t e , 
the a r b i t r a l d e c i s i o n r e n d e r e d on 6 t h March 
1956 i n the Arabotielos case end the judgracnt r e n d e r e d by the 
I n t e r n e t i o n a l Court of J u s t i c e on 2 1 s t March 1959 i^i the 
I n t e r h o n d c l case ; 
788/60 
- 2[i 
VJherees tho Respondent Government expressed the view thet 
in order to determine the intention of the rule regarding tho 
exhaustion of doraestic reraedles_ as laid down in -rbicle 26 of 
the Européen Convention, i t wes necesser^r to refer to current 
internetional case lew end theory, since . r t i c l e 26 referred 
specifically to bhe genorelly recognised principles of inter-
national low in this metter; 
x^fhereas in the view of the said Government, the rule of 
local redress nevertheless occupies s considerably more impor-
tant place in the European Convention then in international low 
in general end since ..rticles 26 end 27 perogreph (3) mode no 
distinction in this respect, i t vrould epnly in principle to 
individual applications end epo]icetions by Gontrecting States 
elike ; furthers with regard to the l e t t e r , i t s applicability 
vrould not be confined to complaints raedc by States in the exer-
cise of their rî.rht to efford diploraotic protection, on behalf 
of their nationals whom they cleim.ed to hove been injured by 
other Stetes; wherees ..rticle 1 of the Convention recognises 
"everyone" (irrespective of notionelity) es entitled to the 
rights and freedoms set out in Chepter J; wherees Article 26, 
occordingly, extended the rule to netionels end stetoless per-
sons, so that ib v/es epplicablc in this ceso elthough the 
youths of Fundres/Pfunders did not hevc .-ustrien netionellty; 
whoress moreover, the Commission had dec]ercd admissible one 
part of Application No. 299/57 of the Greek Governraent although 
it was mode on behalf of netionels of the Respondent State, the 
United Kingdora of Greet Britain end Northern Ireland; whereas 
it wes true that the epplicebility of the rule mâght be disputed 
if e State accuses another of a breach of the Convention un-
connected with any individual, this ijes not the case in the 
present instance, since the Austrian Government had intervened 
1^ / 
I J 
to remedy e violetion of the Convention which they cleimed 
hod been'comraittcd to the prejudice of persons vrithin the 
jurisdiction 'of Itely end having ecces­s to ell domestic reme­
dies; whcreos, vjhcn i t provided thet a State might erreign 
another State directly before en international instance when 
the action coraplaincd of effects e person enjoying special 
internationel protection^, the Grenada Resolution, vies concerned 
with certcin persons only such os Heeds of State end Arabassa­
dors, end not, es the /ustrion Governm­enb clairaed (see below), 
the population es e vrholc, which enjoyed the protection of the 
European Convention; 
VJherees the Austrian Governraent replied thet for the pur­
poses of .'.rtjcles 26 end 27 peregraph (3) of the Convention^ 
opplications by Stetes wore quite different from individuel 
epplicétions; chet Individuals, non­governmental orgenisotions 
end groups of individuels, could not apply to the Coramission, 
under tho terras of Article 25; unless they cleiraed to be vic­
tim,s of e violetion of their rights ond freedoms, which they 
could not Icgitiraately do until they hed exheusted ell domes­
tic remedies; thet, on the o^hcr hand, i.rticle 2I4. euthorised 
eny Contrecting Sbetc, without heving suffered ony prejudice 
whatever end before eny individuel hed been injured^ to refer 
to the Commission eny elleged brooch of the provisions of the 
Convention by another High Contrecting "Party, such es s State 
might Gomrcit siraply by introducing a lew or issuing a decree; 
thot^ unlike individuels^ States were not entitled to i n s t i ­
tute proceedings in the Courts of other States for ellogod 
brooches of tho Convention; that, wibh the possible exception 
of compleints lodged in the exercise of tho right to efford 
diplometic protection, "Cho exheustion of doraestic remedies 
would occordingly not be e condition of edraissibility for 
■■ 
■" 
■ 
• 
■ 
■ 
■ 
.
/
. 
788/60 
- 26 
applicetions by Stetos, these being based on the concepts of 
collective guerentcc end tho public interest; that the precedents 
referred to by the Itelien Governraent were relevant only in 
respect of proceedings instituted by e State on behalf of one 
of i t s own notionels; thet the serac v/ee true of the Granedo 
Resolution; that, furthermore, this Resolution steted thet the 
rule wcs not cppliceblc when the action complained of 
affected 
a person enjoying special internetionel protection; that persons 
living in the territory of Contracting States were in feet en-
joying the "spcciol internetionel protection" of the Européen 
Convention; 
Decision of the Comi-aission 
1/hereos in general intcrnetionel lew the right to exorcise 
diplometic proboction end to present o claim before en inter-
netionel tribunal is s right which, subject to a few spociel 
exceptions, is limited to coses of on ellogcd injury to a State's 
own netionels ebrood within the jurisdiction of another State 
end in violation of internationel lev; ( Fencvezys-Soldutiskis 
Reilwey Co. Cose, Series ../B 76, p. 16; Nottcbohm Case, I.C.J. 
Reports 1955? P-^); wherees, similerly, the rule of the 
exhaustion of dom.estic reraedies as e condition precedent to the 
exercise of diploraetic protection ond bhe presentation of en 
internetional cleim. is in gcnerol intcrnetionel law limited to 
cleim.s raode by e Sbote in respect of en injury elleged to hove 
been done to one of i t s netionels; end whereee the rule requir-
ing the exhaustion of doraestic remedies os e condition of tho 
exercise of diploraetic protection ond of the presentation of 
en internetionel claim is founded upon the principle thet the 
respondent Stetc m.ust f i r s t heve en opportunity to redress by 
i t s own means vjithin the freracvjork of i t s own domestic legal 
system the wrong elleged to have been done to the individual 
(Interhondol Case, I.C.J. Reports, 1959^ pege 27; Decision of 
the Co-n^iission on the Admissibility of ^ooljcation ]^o. 3^5/57)5 
" 27 - 
788/60' 
VvHriercas^ in the European Convention, the High Contrect-
ing Forties heve esteblished a systera of the internetional 
protection of humion rights end fundaraentel freedoms for ell 
persons within their respective jurisdictions independently 
of eny bond of netionellty; vjhorees i t follows thet the 
systera of internetional protection provided in the Convention 
extends to the netionels of the Stetc which is elleged to have 
violated the lew of tho Convention ond to stetoless persons, 
es well es to the netionels of other Stetes; end whereos i t 
is menifcst thot the principle upon which the doriiostic remedies 
rule is founded one! tho consideretions which led to i t s intro-
duction in gonerel intornetionol lew epply not less but 
0 fortiori to a system of internetionel protection which 
extends to e Steto's own notionels as well es to foreigners; 
^^Jhcre0s, raorcover, the m.erc fact thet the systera of intcr-
netionel protection in the Convention is founded upon the 
concept of n collective guarantee of the rights ond freedoms 
conteined in the Convention, docs not in eny wcy wcoken the 
force of bhe principle on which the domestic remedies rule 
is founded or the considère tiens which led to i t s introduction^ 
'^âherc es /jptlcle 26 of the Convention, in providing thot 
" bho Commission raoy only deal -with bhe raattor efter ell 
domestic remedies have been exheusbed, eccording to' the 
genorelly recognised rules of internetionel leij", docs not, 
in express terras, meke eny distinction between matters 
referred to the Commission by e High Contracting Party under 
-.rticle 2[L end raotters referred to i t by en individuals non-
govcrnm.entel orgenisotion, or group of individuels under 
Article 25; wherees furtherraoro Arbicle 27^ vrhich sots out 
certain grounds upon which the Comraission is required to 
n / e 
788/60 
■ 
- ^' 
reject epplicetions referred to i t , expressly liraits the grounds 
set out in poregrephs 1 and 2 to petibions under Article 25s but 
does not so limit peregreph 3^ v;hich requires the Coramission to 
reject en opplicetion when the domes cic roraedies hevo not been 
exhausted; wherees the contrast in this respect betvreen pera-
greph 3 ^"^^^ thc,obher two poregrephs of ..rticlc 27 cloerly 
shows, in the opinion of the Comraission, thet i t wes not tho 
jntcntion of the contrecting Stetes bhet the rule of exheustion 
of dom.estic roraedies should not epply to epplicetions brought 
by Stetes; x-jhcrces, also, the Commission is unable to find in 
t"^c words "eccord.ing to the generally recognised rules of 
internetionsl lew" eny indiceticn theb tho High Contrecting 
Forties intended to ] ipilt the operation of this rule to matters 
submitted to bho Comimission by on ind(.LViduel, non-governraontel 
organisetion, or group of individuels; whcrces; if i t is true 
thet under the gcnerelly recognised rules of internetionel lew 
the domestic remedies rule has no opplicetion to internetionel 
claims pre sented in respect of non-netionels of the clalmont 
Stetc, i t is cquelly true bhot i t hes no eopliccbion to cleims 
pre scntcd to intcrnetionel tribunels by individuels ; vrherc es 
in both typos of esse the reoson is simply thot the cleims 
tbensclvcs ore inedmissiblc under generel internetionel lew^ 
irrespective of the exhaustion of domicstic reraedies;; end i\^herces 
it follovjs thet if the insertion of che vjor-ds "eccording to 
the gcnerelly recognised rules of internetional lew" wore to 
be token es indlooting en intention to exclude the operation 
of the domestic reraedies rule in the ceso of Applj cO'tions 
brought by Stetes under ..rticle 21^, i t would cquelly be nccos-
sery to interpret thcra os excluding i t s operation in the cose 
of epplicetions brought by on individual, non-governracntel 
organisation, or group of individuels under article 25; 
whoreoSj hovrcvor, i t is beyond question, es the Austrian 
Governraent itsolf recognises, thet the doraestic roraedies rule 
leid dovjn in Artiele 26 of the Convontlo.n operates in the case 
- 29 - 
788/6,0 
of epplicetions brought under Article 25; whereas, accordingly, 
the Austrian Governraent',s contention thet the words "eccording 
to the generally recognised rules of internetionol lew" 
exclude the operetion of the doraestic remedies rule in cases 
brought before tho 'Comraission under .erticle 2l\. must be 
re jec ted; 
VJhereas^^ raoreover, the Comraission found on 12th October 
195.7 that the said rule is valid in principle for both types 
of case, since it rejected a part of Application No. 299/57 
by the'Greek Government on. the ground that domestic remedies 
had not been exhausted; whereas, its finding on 2nd June I956, 
that the rule did not apply to Application No, I76/56, by the 
same Government, was based on the sole ground that this 
Application concerned the compatibility with the Convention 
of legislative measures and administrative practices, regard-
less of any individual or specific injury; whereas, this is 
manifestly not true of Application No, 788/6O by the Austrian 
Government; 
Finds, that the domestic remedies rule laid down in 
Article 26 of the Convention is applicable in the present 
case; 
B, - OÎÎ THE OBSERVANCE OP THE RULE 
Arguments of the Parties 
Whereas the Italian Government points out in its 
written observations of 30"^^ August I960 that, according to 
the Arbitral Award delivered on 6th ^iarch 195^ î^ ^^^ 
Ambatielos case, dori:fâstic remedies "include not only reference 
to the courts and tribunals, but also the use of the pro-
cedural facilities v/hich raunicipal law makes available to 
litigants before such courts and tribunals" and "It is the 
whole systera of legal protection, as provided by municipal 
law, ^^^hich raust have been put to the test"; that admittedly 
788/60 
- '30 -
the Arbitral Tribunal, which heard the Salem case on 8th June 
1932^ had decided that "as a rule it is sufficient if the 
claimant has brought his suit up to the highest instance of the 
national judiciary'' (Reports of International Arbitral Awards, 
United Nations, Vol. II, p, II89); but that this was an award 
delivered some tim.e ago and somewhat outdated and that reference 
should rather be made to raore recent expositions of the domestic 
remedies rule ; whereas in this connection the Italian Govern-
raent has recalled that in accordance with the precedents followed 
by the Ccrom-ission and in particular the decisions" relating to 
the adraissibility of ;.pplica cions Nos. 263/57, 309/57^ 327/57 
and 3l[.2/57p an ap*olicant, in order to satisfy the relevant 
provisions of Article 26 of the Convention, must not only sub-
mit' his case to the various courts to which reference is 
required by this >.rticle but he must also rely before the 
higher court, in default of impossibility or sorae bar and to 
the extent to which that depends within reason on himself, on 
the rights which he alleges to have been violated by the lower 
court; whereas when the '\ustrian Governraent having objected 
in its counter-meraorial of 26th October I9é0 that these pre-
ce d en bs wer e inooera bive in the pr es ent cas e be caus e the 
Application was concerned with crim_inal proceedings and that 
criminal courts are under.a duty to ascertain the truth inde-
pendently of the coraplaints and evidence submitted by the 
defence, the Italian Government replied in its supplementary 
wribten observâtj ons of '^rd December 196O that the four 
decisions of the Coirmission cited above dealt with dom.estic 
proceedings in criminal and not civil cases. 
"..'hereas the Respondent Government has said that in order 
to ascertain whether the defence of the young men of 
Fundres/Pfunders neglected to avail itself of an essential and 
sufficient reraedy one must start xaith a working hypothesis: 
one must provisionally assum.e that the alleged violation 
actually occurred; whereas it cited on this point the Arbitral 
•/• 
­ 31 ­ 
788/60 
Awards rendered on 9"^^ ^^^y 193i'4­ in the case of the Finnish 
vessels (International Arbitrary Awards, OTj, Volume III, 
p. 150[|.) and on 6th March I956 in the Ambatielos case ("♦., 
The only possible test is to assiime the truth of the facts 
on which the claimant State bases its claim")| 
Wherea.q the Respondent Government further emphasises 
that since the date of ratification by Italy (26th October 
1955)? "^^^ Convention constitutes an integral part of the 
Italian legal system, because Article 2 of Law No# 8i|.8 of 
llth August 1955 ïTiakes it compulsory to observe the Convention 
and to cause it to be observed as "the law of the land"» that 
as a result the provisions of the Convention are to be Invoked 
before Italian courts in the sarae way as the Constitution, the 
Codes and any other municipal law, ignorance of the law and, 
consequently, of the Convention being no valid excuse| that 
this would be all the raore so since ­ contrary to the allega­
tions of the Austrian Government ­ the principle according to 
which it is the duty of the criminal courts to discover the 
truth, if necessary ex officio, does not apply to the Court of 
Cassation but solely to the trial judges| 
Whp>rfta..,q on this last point the Coramission invited the 
Parties, by letter dated 17th December I960 and at the opening 
of the hearing of "Jth January I96I, to furnish information or 
explanations with regard to the following two questions: 
(a) "Do the clauses of Article 6, paragraphs (l), (2) and 
(3)(d) and of Article li^ of the Convention, invoked by 
the Austrian Governraent, coincide with the correspond­
ing provisions in Italian legislation (constitution, 
laws, etc») or do they go further or, on the contrary, 
do they not go so far as these provisions?" 
(b) "Does the principle ^Jura novit c.uria^^ automatically 
give the Italian criminal court the right or the duty 
of ensuring ex officio that the regulations and pro­
visions mentioned above are respected? If this is so 
is there any distinction to be made here between the 
Court of Cassation and the Court of First Instance 
and the Court of Appeal? 
/ 
788/60 
« 
' ;>2 
Whereas in reply to the f i r s t question the Italian 
Governi"ient expressed the opinion at the hearing of "Jth January 
that Article 6, paragraphs (1)^ (2) ,aiid (3)(^) and Articla ll| 
of the Convention have their counterpart in specific 
provisions of j:he Italian Constitution (Articles 3^ 22, 2k, 
25, 27, 101, 102, loll, 108 and 111), the Penal Code 
(Articles 1, l^O^ l!-2, 57 and 85) and the Code of Criminal 
Procedure (Articles I85, 238 bis, 239, 2l|0, 2[|.9, 256, 269, 
378, lj.20 and 14.79)3 whereas it pointed out nevertheless that 
this opinion rested upon a particular interpretation oT the^ 
Conventionj 
whereas it 'added at the hearing of 9"^^^ January 
that the Austrian Governirienu appeared to attribute to 
Articles 6 and ll\. a different and x^ider meaning, which ,would 
be an additional reason for verifying whether counsel for the 
young raen of Pundres/Pfunders had or had not cited them 
before the Italian courts* 
whereas it asserted that the 
question of the exhaustion of doraestic reraedies could nob b© 
joined to bhe substanc-^ o-*^ the case, so that the Commission 
in order to decide the matter would have to abide by the 
criteria accepted by internationel case-law (the Finnish 
vessels case and the Ambati-^los case); 
that is to say, 
provisionally accept the Austrian Inbcrpretation, or else 
decide itself already at this stage of the proceedings on the 
exact intention of Art^oler 6 and ll^» 
Whereas in reply to the second question quoted above, 
the Respondent Government stated at tho hearing of 7th January 
that the decisions of tho Appeal Court and the Court of 
Cassation follow under the Italian systera, as distinct frora 
the judgments of the courts of f i r s t instance, the 
"principio dispos i t ivo" acc-jrding to which bhe parties them-
selves by choosing their grounds of appeal set limits to 
the power of the Appeal Court or Court of Cassation to take 
cognisance of a case- 
that Articles 152'and 185 of the Code 
of Crirainal Procedure introJuct^ exceptions bo this principle 
by providing that the judge shall at every stage of the pro-
ceedings draw attention ex officio to certain grounds which 
would absolve the accused from any penalty as also to certain 
cases of absolute nullity^ 
and that the conditions foi* the 
application of those two Articles did not obtain in this 
particular case; 
Wliereas at the opening of the hearing of 9^h January, the 
Coramission put the follovjing qi:iestion to the parties s 
"When a defendant subraits a certain arguraent before the 
Court of Cassation in sufficient detail but without ex-
pressly invoking in its support the relevant provisions 
of Italian raunicipal law. including the Convention, does 
the'Court nevertheless have the right or the duty to 
ensure that the said provis 1 ons are coraplied i\ribh, or 
shall i t declare the appeal inadmissible in pursuance of 
Article 201 of the Code of Criminal Procedure?"; 
Wherea s the Italian Government replied at the sarae hearing 
that Article 201 of the Code of Criminal Procedure, by requiring 
that the pleas should be set out in detail on pain of in-" 
admissibility, lays down a general rule applicable to every 
remedy, Including appeal to the Court of Cassation; 
bhat to 
this general rule is added the special rule in Article 52I4- of 
the said Code, which enumerates the judicial errors forraing 
grounds for appeal to the Court of Cassation, namely the non-
observance or faulty application of the crirainal law or other 
statutory provisions of which account must be taken in 'the 
appli3ation of the crirainal law, any act by the judge in 
excess of his jurisdiction and failure bo observe the provi-
sions -of the Code of Criminal Procedure established under pain 
of nullity,' inadmissibility or invalidity; 
that as a conse-
quence the party concerned is under tho absolute obligation to 
submit his pleas, stating not only the provisions of the 
criminal law of, which he alleges the non-observance or faulty 
application, but also the other relevant legal provisions, for 
example, the Convention, otherwise it would be sufficient 
to 
refer to the whole of the Code of Criminal Procedure or the 
788/60 
- Jk -
whole of the Constitution, e t c . , in order to make it 
practically 
ii-apossible for a judge of the Court of Cassation to perform his 
duties; -and that subject to Articles I52 and I85 of the Code of 
Criminal Procedure already quoted, the Italian Court of Cassa-
tion would not have the right bo examine any plea specified as 
to fact but not as to law; 
Whereas in consideration of the above the Italian Govern-
ment came to the conclusion that the young men of Fundres/ 
pfunders had not exhausted doraestic reraedies with respect to 
any of tho 'Oomplaints advanced by the Austrian'Government; 
Whereas the Italian Gover:ai"acnt has observed as regards the 
refusal of the Trent Court to hoar the evidence of Giovanna Ebner 
and Dr. Kofler that the third submission in the appeal to the 
Court of Cassation was liraited to putting forward arguments of 
fact and to a lesser extent the rights of the defence; 
whereas 
it appeared to admit that the said submission had thus raised 
Implicitly and in substance the com.plaint based on an alleged 
violation of Article 2I4. of the Italian Constitution and that the 
Court of Cassation should have decided this point; 
whereas it 
nevertheless blamed the convicted persons for not having express-
ly availed themselves of Article 6, paragraph (3)(d) of the 
Convention, a prescription of law upon the observance of which 
the Court of Ca ssa tion wa s corapetent to pronounce j 
Whereas the^ Italian Governiaent notes furthermore that the 
appeal made no mention of Article 6, paragraph (2), and 
Article lIi, of the Convention nor even of Articles 27 (2) and (3) 
of tho Italian Constitution, in accordanoo with which "an accused 
person is not deeraed guilty until sentenced" "and "all citizens 
have equal social rank a"nd are eQ_ual before the' law v;ithout 
distinction of sex, race, language, religion, political 
opinion, or social and personal conditions , . . . " ; 
Whereas, finally, with respect to the alleged partiality of 
the judges of the Assize Court, the Italian Governraent has 
expressed the opinion that the application for appeal to the 
• / . 
- 35 - 
788/60 
Court of Cassation contained no argu lents coraparable with 
those put forward by the Austrian Govern_raent and stated that 
Counsel for the defence had not referred either to Article 6, 
paragraph (1), of the Convention nor Article 2 ("The Republic 
acknowledges and guarantees the inviolable rights of i.ian . . . " ) 
nor again to Article 2I4., paragraph (2) ("The right to defence 
is inviolable in every state and at every stage of bhe 
judicial process") of the Italian Constitution; 
that the 
f i r s t plea in the appeal denied the legality of the^replace-
ment of a member of the jury of the Trent Court, who fell 
sick, by a "substitute juryraan", but that this was a subject 
of complaint entirely apart frora the accusations of partiality 
forraulated in the Application; 
Whereas in reply to a question put by the Comraission, 
the Italian Govornnent raaintainod at the hearing of 
9th January, as a subsidiary point, that the accused had not 
even raade in substance before the Court of Cassation the 
pleas in support of which tne Application refers to 
Articles 6 and 1I4. of the Convention; 
I'fiereas the Comraission invited the oarties hj letter pf 
17th December i960 and at the opening of the hearing on _ 
7th Januar^^ I96I5 ''^o furnish irrrorm.ation or explanations with 
regard to the following questions 
"Did the accused in tho Fundres/Pfunders case have the 
possibility according to Italian law of challenging the 
coraposition of the jury, criticised by tho Austrian 
Government on pages 6 and 18 of the Introductory = 
Application?; 
if so, what remedies were open to thera 
and did they exercise tlie remedies?"; 
VJhereas the Italian Government replied that if, 
in 
spite of the guarantees offered by Law No. 287 of 10th April 
I95I5 concerning the organisation of the assize courts, and 
in particular the constitution of the jury, the accused in 
the Fundres/Pfunders case believed uhat they had grounds for 
challeraging the impartialiby of their judges in the court of 
788/60 
- 36 -
first instance and in the Court of Appeal, they should have 
made an application for change of venue on grounds of legiti-
mate suspicion, which they_neglected to do; and that under 
Article 55 of the Italian Code of Criminal Procedure, 
"In every state and at every stage of the judicial 
process the Court may on serious grounds of public policy 
or legitimate suspicion or at the request of the Public 
Prosecutor in the Court of Appeal or Court of Cassation, 
rerait a case under examination or a case awaiting judgraent 
to another judge in another court. 
Tho accused may inake an application for this purpose 
solely on grounds of legitiraate suspicion, other private 
parties do not have this right."; 
and that the application raust be raade by the accused to the 
Public prosecutor and the latter was bound to transmit it to the 
Court of Cassation which in its turn raust examine the application 
and decide; moroover, a situation of fact and not merely an 
existing rule of law might in the Italian s^rstem justify the 
transfer on grounds of legitimate suspicion; that legitiraate 
suspicion therefore amounted to a concrete notion; that the 
Court of Cassation of Italy had decided on several occasions both 
on an application raade by the defendants and on an ap,plication by 
the Public Prosecutor, to remove a case from the assize courts 
normally competent ratione loci, on the ground that within the 
area of jurisdiction of this Court feelings prevailed which were 
of a nature to hinder a completely ii'apartial trial; that 
questions likely to disturb public peace and order in a given 
area raight be referred to the Courts of other parts of the Italian 
Republic; that'the application for change of venue on grounds of 
legitimate suspicion therefore h^d the character of an essential 
and effective reraedy; that it was at least incumbent- upon the 
Austrian Government according to the principles of international 
law generally recognised in the natter to show that it would 
have been ineffective in this particular case; that the Austrian 
Government had not shown this by stating that the reraoval of 
- 37 " 
788/60 
the case from ,the Bolzano/Bozen and Trent Courts would' have led 
to the case being entrusted to juries composed entirely of 
Italians, so that it would haMo been inadvisable for the defence 
to invoke Article 55 of the Code of Criminal Procedure; 
that 
this affirmation went far beyond any plausible possibility since 
it araounted to an allegation'that in no place in Italy was there 
a judge capable of adminiscoring justice; 
Whereas the Austrian G overiiincnt has"on i t s side recalled 
as a subsidiary matter - chat is to say on the assumption that 
Article 26 of the Convention holds good in the same raanner for 
applications brought by a State and applications brought by an 
individual - that according to the Arbitral Award delivered on 
8th June 1932 in the Salera case, the rule of the exhaustion of 
domestic remedies should bo interpreted in accordance with the 
circumstances of each case and "as a rule it is sufficient 
if 
the clairaant has brought his suit up to the highest instance 
ot the national judiciary"; 
that, moreover, the four decisions 
of the Commission cited by the Italian Government referred to 
civil proceedings, whilst the present Application concerned 
criminal proceedings; 
that the crirainal proceedings were 
governed by the principle according to which it was. the duty 
of the Court to ascertain the true facts independently of the 
compla int s or subra 1 s s ions ma de by the def enee ; 
Whereas the Applicant Government has agreed with the 
Italian Government that the stipulations of the Italian Consti-
tution coincide with those or the Convention and that the 
l a t t e r forms an 
integral part of Italian municipal law; 
whereas the Applicant Goveriraent does not agree, on the other 
hand, that the defence was at fault for not invoking the 
provisions of the Convention, and affirras that in fact, the 
Italian authorities, including tho courts, had the duty of 
applying them, even ex officio; 
x/hereas the Austrian Govern-
raent had questioned -.-jhether Italian law, and in particular 
Article 52I1 of the Code of Criminal Procedure, m^ade the 
788/60 
­ 38 " 
fulfilraent of this duty corapulsory; and if Italian lax^r did not 
do so it would be contrary to the Convention, Italy having made 
no reservation in that matter; 
yjlieroas in the view of tho Austr_an Goverrmient it is 
sufficient that the complain^Gs in respect of which the Applica» 
tion alleges a violation of Articles 6 and iLj. of the Convention 
should be referred in substanco to the Italian Courts, vrhich 
was in fact the case; whereas the Austrian Government points 
out that in the grounds of appeal to the Court of Cassation 
objection is raised to the "statements incontrovertibly 
established" and the "pure asservons without a shadow of 
evidence in support" contained in tho docision of the Trent • 
Court; tho first ground in the said appeal, the conditions 
under which a juryman of that Court vjho had fallen ill had been 
replaced; the third, the failure to hear Glovanna/Johanna Ebner 
and D^. Kofler on the visit to the scene of the occurrence on 
2oth March 1958; the seventh, the "subjective appreciations", 
"suppos­i ■î­'i ons" and "conjectures" of the appeal judges; the 
eighth, the "bald statements unsupported by evidence" which they 
are said to "have made; the first supplementary ground, finally, 
the "insufficiency" of the grounds on which the decision of 
27th March 1958 favoured the notion of voluntary hom^'cide rather 
than that of "preterintentional" homicide; whereas tho Austrian 
Government indicated moreover that Counsel for the young men of 
Fundres/pfundors had, in addition to a series of provisions of 
tho Penal Code, of tho Code of Criminal Procedure and of the 
Act of loth April I95I, explicitly cited from the Italian Con­
stitution, Articles 2ii_, paragraph 2 (socond ground in the 
appeal) and 27, paragraph 1 (seventh ground); 
Whereas the Austrian Goveranent has asserted, on the other 
hand, that an application for change of venue on grounds of 
legitimate suspicion would not have improved the situabion of 
the accused and would probably not have boon effective within 
the moaning of tho generally recognised principles of 
. / . 
International law; 
according to the Austrian Government the 
fact that four jurymen­out of six belonged to the "Italian 
ethnic group" v/ould hardly have been accepted as a legitimate 
ground for' suspicion, since the accused themselves also possessed 
Italian nationality and the Italian Code of Criminal Procedure 
dated from tiirios before the question of the Upper Adige 
minority arose; 
moreover, an application founded on Article 55 
of the said Code could not but have made the Assize Courts un­
favourable, especially in the atraosphere prevailing at Bolzano/ 
Bozen and Trent and would, therefore, have been a serious mis­
take by the defence; 
if the Court of Cassation had, contrary 
to a l l expectation, accepted such an application, the case 
would have been heard by a jury which did not comprise a single 
Gerraan­speaker and therefore of an "ethnic composition even more 
unfavourable"; 
Decision of the Commission 
I 
^. 
-
-
-
-
-
. 
— 
— 
— 
^ 
. 
- 
. 
.
.
. 
Concerning the complaint set forth in paragraph I (3) (^ ) 
of the written conclusions of tho Austrian G over ruTient : 
■ ■ « I I — 1 1 1 
I . H I » 
» 
m 
■ —
m 
m 
■! 
I 
I I I 
I 
II 
I 
II 
I 
^ 
1 1 1 ■ ■ — ■ ■ i . ^ i ^ l ^ . 
■ 
I 
11 
M 
!■ 
I - 
. M 
■■III- I J I I l . l l » — . 
■ , ■ ^ 
I 
I 
_ 
»! I ^ H 
» . . ■ 
Whereas by this complaint the Austrian Goverrmient allege a 
violation of Article 6, paragraph (1) of the Convention by reason 
of the composition of the Assizo Courts of Bolzano and of Trent; 
whereas they point out that four out of six jurprs were of 
"Italian ethnic origin" and vrere "particularly liable to be 
swayed by the Italian press campaign, the political tension, 
the vehement arguraents of the Public Prosecutor and of the 
plaintiff"; 
Whereas according to the generally recognised rules of 
international law to which Article 26 of the Convention 
refers, it is incumbent on ,the Respondent Governm,ent, if they 
raise the objection of non­exhaustion,­to prove the existence, 
in their municipal legal system, of remedies which have not 
been exercised (decision of the Commission on the admissibility 
of Application'No. 299/57 of the Greek Government against the 
British Govcrnmient and the arbitral award made on 6th March 
1956 in the Ambatielos case); 
/ 
•/ • 
788/60 
Whereas the Italian Government have shox^rn that according 
to Article 55 (2) of the Code of Criminal Procedure an accused 
may in any event apply for a change of venue on the ground of 
legitimate suspicion and that bhe persons concerned in this ~ 
case did not do so either on f i r s t instance or on appeal; 
Whereas the rule concerning exhaustion in principle 
requires, according to the conceptions which preva11 in bhe 
matter nowadays, that a l l judicial means offered by raunicipal 
legislation should bo utilised provided they are likely to 
prove an effective and adequate means of redressing the 
grievances set forth, on the international plane, against the 
Respondent State (decision of the Commission on the admissibi-
lity of Application No. 3^4-7/57 of Mr. B.S. Nielsen against 
Denmark); 
whereas the explanations of the Italian Government 
concerning the pertinent legislation and practice tend to 
indicate that an application lodged in pursuance--of • 
Article 55 ("2) of t>he Code -of Crirainal Procedure would have 
constituted such a remedy in the case in issue; 
whereas -it 
appears, in particular, from these explanations that,according 
to tho[case-law of the Court of Cassation of Italy an applica-
tion of this kind can validly be based on circumstances such 
as those invoked by the Austrian Governraent, that the Public 
Prosecutor is obliged to refer it to the Court of Cassation 
and that the l a t t e r must examine and decide on i t ; 
whereas i t 
seems that the request in question would therefore have had 
considerable prospects of success and t h a t , if the Court of 
Cassation h^d accepted i t , there would have been a possibility 
of t h e ' t r i a l taking place in an atmosphere different from that 
which, in the eyes of the Austrian Governraent, prevailed at 
Bolzano/Bozen and at Trent; 
Whereas, moreover, the exhaustion of a given domestic 
remedy does not normally cease to be necessary, according to 
the generally recognised rules of international law, unless 
the applicant can show that, in these particular 
• / • 
- 
I i 1 
788/60 
circurastances, this remedy v;as unlikely to be effective and 
adequate in regard to the grievance in question (decision of 
the Coramission on the admissibility of Application No. 299/57 
of the Greek Government); vmereas, in the view of the 
Coimnission, the Austrian Government only put forward in this 
respect arguments concerning expediency and the tactics which 
it was or was not in the accusedts interests to adopt; whereas 
it has not been established that an application for a change of 
venue on the ground of legitimate suspicion would not have 
constituted, in the case at issue, a rem-ed^^- likely to be 
effective and adequate; 
Finds, consequently, that all domestic remedies have not 
been exhausted in this respect, so that a part of the applica-
tion has to be rejected in accordance with Article 27, para-
graph (3) of the Convention; 
Concerning the complaint set forth in paragraph I (1) 
of the vjritten conclusions of the Austrian Government 
VJhereas hj this complaint the Austrian Government allege 
a violation of Article 6, paragraph (3)(d) of the Convention 
in - tha t " the test iraony of t he vri t ne s se s Joha nna Ebner and 
Dr. Kofler was rejected as not pertinent to a matter which 
the courts declared to be essential and relevant in respect 
of the witnesses called by bhe prosecution ana irrelevant in 
respect of the above witnesses called by the defence in 
connection with the same points"; 
Whereas in the third ground for their appeal in 
cassation, the committed persons criticised the "plainly 
contradictory" grounds on which, according to them, the 
Trent Court declined, on lOth March I958, to hear 
Giovanna/Johanna Ebner and Dr. Kofler as witnesses on the 
occasion of the visit to the scene of the occurrence-although 
it heard Calvia on the sarae point, namely the position of 
Falquiïs corpse; whereas they asserted that 
Giovanna/Johanna Ebner had crossed the bridge over the 
/ 
788/60 
- L 
stream at che time x/hen the booy s t i l l lay in the stream bed 
and when another customs officer was trying to l i f t 
i t ; 
whereas "Ghey added that "if only from the simple standpoint of 
the accused r s righi: to defence . . . a judge cannot reject 
evidence proposed in regard to precise material circumstanoes 
of fundaraental importance"; 
whereas they based their argument 
on Articles 1|15, I4.57, I1.75 (3), 520 and 52I1 of the Code of 
Crirainal Procedure, but not at a l l on Article 2I4. (2) of the 
Constitution according to which "the right to defence is 
inviolable ^.J*; 
whereas the Icalian Government have never-
theless conceded that "one mîght, if need be, admit that the 
argument xjas raised in subsbance and that the Court of Cassa-
tion should have settled i t " ; 
that, on the other hand, the 
third ground for pppeal did not mention Article 6, para-
graph {)){<^) of the Convention of whose provisions no exact 
equivalent can be found in any of the five Articles of the 
Code of Criminal P-^ocedure enumerated above; 
whereas the 
Court of Cassation rejected the said ground simply on the 
princjLjjle uOiu che t r i a l judge was free to form his ox^rn 
opinion and exercise his own discretion; 
Wbereas it rests^ in principle, with the municipal 
legislation of each Contracting State to establish the 
appropria be courts, to define their powers (Panevezys-
Saldutiskls railway case, PCIJ., Series A/B, NO. 76, p. I9), 
and to detei ^inc .he manner and the ti-ae-limits to be 
observed b^'' oarties in resorting bo them; 
whereas Articles 20l 
and 52i| of cho Code of Criminal Procedure, as interpreted by 
the Italian Goverrraent, r.ake it in:;umbent on any person appeal-
ing to the Court of Cassatioa to state his arguments in a 
specifîc manner, 'ndicating clearly the legal provisions of 
wxiich he is availing himself; 
whereas the Convention has in 
Italy, since 26th October 1955 ^'^-^ character of ordinary 
municipal lew; 
whereas its provisions are therefore, it would 
seem, among u ^ose which, according to Articles 20l and 52!^ of 
­ k3 ' 
788/60 
the Code of Criraina 1 Procedux^e, should have been exoresBly 
invoked in the appeal to the Court of Cassation; _ 
Whereas, notwithstanding, according to Article 26 of the 
Convention, 5t ts accord! ig to the gener^ally recognised 
priiiciples of international law that it has to be determlnBd 
whether or not dom,estic remedies have been properly, exhausted ; 
whereas it is commonly admitted, in this respect, that only the 
non­utilisation of an ''essential" recourse for establishing the 
merits of a case before the municipal tribunals lead bo nonr 
admissibility of the international coraplaint (arbitral award 
raade on 6th March I956 in th*" Ambatielos case); 
whereas, in 
addition, the rule of local redress confines itsolf to 
imposing the "normal" use of remedies ''likely to be effective 
and adequate" (resolution adopted at Granada in I956 by the 
Institute of International Law); 
Whereas the third ground for the appeal raised in substance 
the same probi^'^n ^" t"s^ coraplainb in question, namely the 
problem of equaliby between bhe prosecution, the civil plaintiff 
and t'le defence in the matbor of che examination of witnesses; 
whereas Ar bicle f^^~ por^g "aph (3)(d) of the Convention aii'as pre­
cisely at ensuring such equality, as is apparent from i t s 
wording ("o­. co cb^aio the attendance and examination of 
witnesses on his behalf under T;he ^ame conditions as x^itnesses 
against hlri' ) a^ d ^"rom the orcpRT^atory work (Doc<> CM/WP IV (50) 
page 15 : 
"The p j_­ oose of bhi^ paragriph is to place the 
accused on a footing of ect^l^­cy w_Gh t i e public prosecutor"); 
whereas if thoy had rxoressly referred to io ^ tho young men of 
Fund­res/pfunders would cherefore rou have raised any supple­
mentary argument br u w.uj " simply ■'\,ve put forward one more 
argument which in prac­cice coincides, by i t s iatention, with 
those they derived from bno Co::e of Criminal procedure; whereas 
consequently, to a l l appearances^ theio is no reason for 
assuming that thei­^ appeal would, in tnis manner, have met with 
a different and more favomcbjo ^­­eception; 
788/60 
ill, 
Finds, consequently, that the complaint set forth in 
paragraph I (1) cannot be declared inadmissible by application 
of Article 27, paragraph (3) of the Convention; 
Concerning the complaint set forth in PQ^r'agra'ph I (2)_of 
the writben con'îlusions of the Austrian Government 
Whereas by this complaint the Austrian Government allege 
a violation of Article 6, paragraph (2) of the Convention "in 
that prior to beir^ sentenced the accused were treated as 
political murderers and were so designated on the ground that 
they had committed murder as a result of their a n t i - I t a l i a n 
feelings" ; 
Whereas in order to deterraine whether the domestic 
remedies have been exhausted in this respect, it is necessary 
to conform to the principles referred to in connection with 
the preceding complaint; 
Whereas Article 27 (2) of the Italian Constitution 
stipulates that "an accused person is not deemed guilty until 
sentenced" and therefore presents a clear analogy with 
Article 6, paragraph (2) of the Convention according to which 
"everyone charged v/ith a criminal offence shall be presumed 
innocent until proved guilty ac:;ording to law"; 
whereas the 
persons con3erned confined themselves to mentioning the f i r s t 
paragraph of the said Article 27 ("criminal responsibility is 
personal") and that in the seventh ground of appeal; 
whereas 
this ground, moreover, did not deal v/ith the events of the 
night of 15th/l6th August I956 but with the incident of 29th 
June 195^ ^"^^ consequently cannot be taken into account for 
the purposes of the current decision; 
whereas, moreover, the 
appeal did not contain any reference to Article 6, paragraph (2) 
of the Convention; 
Whereas, however, the statement of facts v/ith which the 
appeal opened alleged that the Trent Court had not only omitted 
to deal with certain "matters contained in the file 
^5 - 
788/60 
(and constituting) a .necessary logical basis for the legal 
assessraent of the whole trial" but also of having set forth 
"Subjective appreciations" and "bald statements unsupported ' 
by evidence", in depicting the accused, who had not been 
convicted up to then, as persons "aflame with hatred for Italy" 
and "thirsting'for vengeance against the Italians"; whereas 
it pointed out that, according to the case-law of the Court of 
Cassation, "a judgment whereof the reasons instead of being 
based on positive facts rest on suppositions and conjectures 
is null and void"; whereas,, in addition, the first supple- 
, 
mentary ground for the appeal asserted that the Trent Court 
had violated Article i|.75 of the Code of Criminal Procedure, 
having failed to "sufficiently motivate its findings concerning 
the arguraent of the defence that homicide was beyond the inten-
tions of the perpetrators ("preterintenzionalità"); whereas it 
denied that the Court had "proved beyond question the existence 
of a homicidal intention in Luigi Ebner"; whereas it pointed " 
out bhat between the two assumptions considered by the trial 
judge, that of intentional homicide and that of, accidental 
death, there v/as room for an intermediate assumption of "preter-
intentional" homicide which. In the view of the defence, several 
factual circumstances tended to corroborate; whereas it 
expressed the view that the Trent Court should have ruled out 
"the absence of intention ("preterintenzionalità") ... not 
iraplicitly but explicitly", after examining it and giving its 
reasons; 
, Whereas, furthermore, in order to justify the rejection 
of the first supplementary ground, the Italian Court of Cassa-
tion began by recalling that its rôle "is confined to verifying 
the lawfulness of the decisions brought to its knowledge" and 
that, consequently, it "cannot undertake a nevj examination of 
the assessm.ent made of the evidence given at the 'trial, in 
respect of which it can only point out possible logical or 
legal defects"; whereas it considered that the grounds for 
788/60 
- ij-6 -
the Trent Courtis decision contained no defect of this kind 
and that the factors admitted in bhe judgment sufficed "bo 
establish homicidal intent on the part of Luigi Ebner"; 
Whereas it follov/s therefrom that the question of 
presumed innocence raised by the Austrian Government in 
paragraph I (2) of their written conclusions was submitted 
in substance to the Court of Cassation of Italy; 
v/hereas if 
they had expressly invoked Article 27 (2) of the Italian 
Constitution and Article 6, paragraph (2) of the European 
Convention, the young men of Fundres/pfunders would therefore , 
not have submitted any suppleraentary argument but would simply 
have put forward one raore argument v/hich in practice coincides, 
by i t s intention, v/ith those which they effectively presented; 
whereas, consequently, to a l l appearances, there is no reason 
for assuraing that their appeal v/ould, in this manner, have met 
with a different and more favourable reception; 
Finds, consequently, that the complaint in question 
cannot be declared inadmissible by application of Article 27, 
paragrap};! (3) of the Convention; 
Concerning the complaint set forth in paragraph I (3 )_ _(b) 
of the vrritten conclusions of the Austrian Government 
VJhereaj by this complaint the Austrian Government allege 
a violation of Article 6, paragraph (1) of the Convention 
owing to "the violation of the right set forth in Article 6, 
paragraphs (2) and (3)(d). 
Paragraph 1 of that Article, by 
its general iraplications, sum-aarises the succeeding paragraphs"; 
Finds that this complaint constitutes a simple corollory 
to the tv/o preceding complaints so that it cannot, any more 
than the bwo l a t t e r , be declared inadmissible by application 
of Article 27, paragraph (3) of the Convention; 
. / . 
" 1^7 - 
788/60 
- ' Concerning the-complaint set-forth in paragraph .I_-(l4.)' 
of the v/ritten conclusions of the Austrian Goverrgnent 
VJhereas by this complaint the Austrian Government allege 
a violation of Article ll| of bhe Convention "in that the 
violations of human rights set forth" (in the other coraplaints) 
"undoubtedly resulted frora the fact that the young men of, 
pfunders were of a different ethnic and linguistic 
(national) 
origin frora the majority of citizens of the Italian Republic"; 
Finds, in the light of the raeraorials, pleadings and 
conclusions of the applicant Govornment, that the said 
complaint is closely linked to the previous compla^ints and, 
therefore J does not call for a separate decision by reference 
to Artâoles 26 and 27, paragraph (3) of the Convention; 
. / 
788/60 
■ 
­ L^8 ­
I I I . ON THE OTHER QUESTIONS OT^ COMPETENCE AND ADMISSIBILITY 
Wherea s i n .Its vjr.itt.en o b s e r v a t i o n s ,of 3Qth August i960 
(paragraphs 3 ­ 7 ) 
and i n i t s supplementary w r i t t e n 
o b s e r v a t i o n s 
of 3^6 December i960 (paragraphs 1 ­ 2 ) 
the I t a l i a n Governraent 
raaintained t h a t the Coramission was not competent 
r a t i o n e 
ma t e r la e t o examine the complaint, of the A u s t r i a n Government; 
t h a t t h e arguments put forv/ard by i t on t h a t q u e s t i o n even 
p^r.ec'eded,' i n t h e s e two documents, t h e arguraents tha t ,t he 
a p p l i c a t i o n should bo declared i n a d m i s s i b l e on t h e ground of 
f a i l u r e 
t o exhaust doraestic reraedies; 
whereas t h e Respondent 
Government began by r e c a l l i n g t h a t under A r t i c l e 2l\. of 
the 
Convention "any High Conbracting P a r t y may r e f e r t o t h e 
Comraission «,« any a l l e g e d b r e a c h of t h e p r o v i s i o n s of 
t h e 
Convention by a n o t h e r High C o n t r a c t i n g P a r t y " ; 
whereas 
i t 
agreed t h a t t h e grounds of i n a d m i s s i b i l i t y raentioned 
i n 
A r t i c l e 2 7 , paragraph (2) of t h e Convention a r e v a l i d only 
f o r 
a p p l i c a t i o n s 
submitted i n accordance w i t h A r t i c l e 25 by any 
p e r s o n , non­governraental o r g a n i s a t i o n or group of 
i n d i v i d u a l s ; 
whereas i t 
i n f e r r e d n e v e r t h e l e s s from t h e s a i d A r t i c l e 2I4. t h a t 
a p p l i c a t i o n s m.ade by a S t a t e oven if " m a n i f e s t l y 
i l l ­ f o u n d e d 
or an abuse of t h e r i g h t of p e b i t i o n " , should a l l e g e a 
"breach 
of the o r o v i s i o n s of t h e Convention" and not t h e p r o v i s i o n s 
of 
some other I n t e r n a t ' l o n a l t r e a t y , 
i n which case t h e 
Comraission 
would not be com.pptent; 
whereas i t added t h a t t h e Comi­nission 
should not consid'­^r i t s com.petence i n t h a t r e s p e c t 
i n a b s t r a c t o , 
on t h e b a s i s of a g e n e r a l r e f e r e n c e t o a p r o v i s i o n of 
t h e 
Convention and t o t h e a l l e g a b i o n of a g e n e r a l and vague 
v i o l a t i o n t h e r e o f , but on t h e contrary­ i n c o n c r e t o , on the 
b a s i s of an a l l e g a t i o n of f a i l u r e t o r e s p e c t t h e 
r i g h t s 
s p e c i f i c a l l y 
l a i d down i n the Convention; 
whereas i t 
i s 
- il9 " 
7^2/^0 
therefore Incumbent upon the Commission, without examining 
the substance of the raattor, to ascertain "uhat the coiaplaint 
of the Applicant State, whether xfell-founded or not, concerns 
an act or an omission suoh as plainly constitutes an infringe 
ment of a specific right laid down in the Convention subject 
to those limits within which the Contracting Parties wished 
to provide for and guarantee this right; 
whereas the Italian 
Goverrraent, examining the Application in accordance with the 
principles thus defined,^ carae to the conclusion that it 
referred in no way to Human Rights but contained gratuitous 
or offensive allegations and in fact attempted to convert the 
Comraission into a Court of fourth instance; 
whereas it 
invited the Commission, in consequence, to declare its 
absolute incompetence, 
Whereas in its reply of 26th October i960 to the x/ritten 
observations of the Italian Govornment (paragraphs 1 and 2), 
its pleadings of 7"th January I961, and i t s final submissions 
of 9*^^ January I961 (paragraph I I - l ) the Austrian Governraent, 
as i t s principal position, coraplained that the Respondent 
Government had assimilated Application No. 788/60 to an 
application lodged by an individual and had debated pre-
ma tuj'oly the facts and the substance of the case ; 
whereas 
it affirraed that Article 2ij. of the Convention gave,'the right 
to any Contracting party to bring before the ComiTiission any 
breach of the provisions of the Convention whi 3h such 
Contracting party "believed" could be alleged against another 
Contracting Party; 
whereas it considered that it had shown 
amply that it believed with complete justificatiori that such 
a breach could be alleged against the Italian Government;' 
whereas the Applicant Government had clairaed, as a secondary 
arguiaent, that the Commission was competent to examine, if 
not a l l the errors of facb or law comraitted by the ooraestic 
courts, then at least those which constitute or entail a 
violation of Human Rights, or x/hich at any rate allow such 
788/60 
" 50 ­
a breach to be assumed, which it averred was the case in the 
present Application; 
whereas it had affirmed furthermore that 
it had clearly indicated the provisions which it alleged had 
not been complied with, naraely Article 6, paragraph (3)(d), 
paragraph (2), and paragraph (1), and Article iL. of the 
Convention; 
whereas it had appeared to the Austrian Govern­
ment illogical on the part of the Italian Governi­aent to 
attempt to obtain a decision of inadmissibility by denyizig 
the material character of the facts ijapugned in the­Applica­
tion; 
whereas in its view onlj an exainination of the substance 
would make it possible to decide v/hether or not the Convention 
had been observed; 
Whereas the Commission has already pronounced and judged 
in i t s decisions of 2nd Juno I956 and 12th October I957 with 
respect to the admissibility of Applications Nos. I76/56 and 
299/57 ^^ '^^'^ Greek Government against the Government of tho 
United Kiugdom, that the provisions of Article 27, 
paragraph (2)­ of the Convention refer solely to applications 
submitted under Article 25,. and not to applications submitted 
by Goveriiiaents; 
v/hereas it has deduced, in the second of 
these decisions, that v/hen it investigates the admissibility 
of an application ^ma de by a state i t does not have to investi­
gate whether the Applicant Contracting Party has submitted 
preliminary evidence with respect to the truth of i t s ' a l l e g a ­
tions, since such an investigation goes to the substance of 
the case; 
Whereas moreover the complaints set forth in the 
Applicabion are not outside the general scope of the Convention: 
Decides that the grounds of incompetence ratione materiae 
examined above must be set aside, and notes that in any­case 
the Italian Governraent did not pursue these grounds in its 
final submissions of 9"^^ January I96I; 
Whereas it has not found ex officio any other grounds of 
■ II 
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II 
W l l . l 
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11 
. 1 
I 
II 
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incompetence or inadmissibility; 
/ 
51 - 
788/60 
NOVJ THEREFORE, a l l r a a t t e r s r e s p e c t i n g t h e 
substance 
of the case being 
r e s e r v e d ; 
A.FFIRMS t h a t i t i s corapetent t o examine 
t h e 
a d m i s s i b i l i t y of the 
A p p l i c a t i o n ; 
DECLARES THE APPLICATION INADMISSIBLE 
i n r e s p e c t 
of 
t h e com_plaints made i n paragraphs 1 - 3 
- ( a ) of the 
f i n a l 
subraissions of t h e A u s t r i a n Government on the grounds 
t h a t 
domestic remedies have not been 
e xha ust e d; 
D'^CLARES THE APPLICATION ADMISSIBLE AND RETAINS IT 
i n r e s p e c t of t h e other c o m p l a i n t s , t h a t i s t o 
s a y : 
1 . 
in r e s p e c t of the a l l e g e d v i o l a t i o n of A r t i c l e 
6, 
paragraph ( 3 ) ( d ) of the Convention ( f a i l u r e t o h e a r 
t h e 
evidence of Giovanna/Johanna Ebner and of Dr. 
K o f l e r , 
p a r a . I - 1 of the f i n a l submissions of t h e 
A u s t r i a n 
Governi^icnt ); 
2 . 
in r e s p e c t of the a l l e g e d v i o l a t i o n of A r t i c l e 
6, 
paragraph (2) of the Convention ( a l l e g e d f a i l u r e 
t o 
presurae i n n o c e n c e , p a r a . I - 2 of the f i n a l submissions of 
the A u s t r i a n Government); 
3 . 
in r e s p e c t of t h e v i o l a t i o n of A r t i c l e 6, p a r a g r a p h 
(1) 
of the Convention a r i s i n g from the a l l e g e d v i o l a t i o n of 
A r t i c l e 6, paragraphs 
(2) and ( 3 ) ( d ) 
( p a r a . I - 3 " (b) of 
the f i n a l submissions of the A u s t r i a n Govornment); 
l\.» 
i n r e s p e c t of the a l l e g e d v i o l a t i o n of A r t i c l e lL|-
of the Convention ( p a r a . I - L[. of the f i n a l 
submissions 
of t h e A u s t r i a n Government). 
S e c r e t a r y t o t h e 
P r e s i d e n t of 
the 
Cororaission 
Commission 
(A.B. McITHLTY) 
( S i r Humphrey WALDOCK)