ARSLAN v. AUSTRIA



                      AS TO THE ADMISSIBILITY OF

                       Application No. 19744/92

                       by Mehmet Ali ARSLAN

                       against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 17 May 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 27 September 1990

by Mehmet Ali ARSLAN against Austria and registered on 23 March 1992

under file No. 19744/92;

      Having regard to :

-     reports provided for in Rule 47 of the Rules of Procedure of the

      Commission;

-     the observations submitted by the respondent Government on

      6 April 1994 and the observations in reply submitted by the

      applicant on 24 May 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Turkish citizen, born in 1962 and living in

Vienna.  He is represented by Mr. Th. PRADER, a lawyer practising in

Vienna.

      The facts as uncontested between the parties are as follows.  The

applicant was held in detention on remand from 16 August 1990,

17.45 hrs, until 23 October 1990, 11.55 hrs, on suspicion of having

tried to kill a compatriot by, together with others, shooting at him.

      Eventually the proceedings against the applicant were

discontinued on 22 October 1990 by the Public Prosecutor.

      His request to be granted compensation for his alleged

unjustified detention was rejected, in accordance with the Public

Prosecutor's submissions, by the Review Chamber (Ratskammer) of the

Vienna Regional Court (Landesgericht) on 9 October 1991.

      The Court stated that according to the contents of the file a row

broke out in front of a Turkish restaurant in Vienna on 5 August 1990

between the brothers K. on the one hand and on the other hand, one

M.Y., who was shot down and seriously wounded by several bullets.

According to expert investigations three different weapons had been

used during the shooting which meant that three persons had fired at

the victim.  According to the statements made by the victim and the

various witnesses there was suspicion that the brothers K. as well as

the applicant and one C.A. had shot at M.Y.  Both the applicant and

C.A. were sympathisers of a political group to which the brothers K.

also belonged and which was in bitter opposition to another political

group of which M.Y. was the leader.  According to witnesses and on

their own admission the applicant and C.A. had been together with the

brothers K. and M.Y. in the restaurant and had left it with the others

shortly before the shooting began.  Witness A.K. had stated that he saw

the applicant and C.A. make movements as if they were reaching for a

weapon after the first shots were fired.  The victim had stated that

he had been shot at from the pavement in front of the restaurant where

according to witness evidence the applicant and C.A. had been seen

standing.  C.A. was eventually acquitted.  The Regional Court concluded

in view of these results of the investigation proceedings that there

had been suspicion against the applicant of having participated in the

plot of shooting and killing M.Y.

      The applicant lodged an appeal (Beschwerde).  He argued that

contrary to the findings of the Regional Court, it was evident from the

contents of the file that he had a claim to compensation.  He

maintained that there had been no plot between him and the brothers K.

to kill M.Y..  In eventu, he requested to hear again all the people who

had already been interrogated in the matter.  In addition he requested

that the files of a separate matter concerning one C.A. be likewise

taken into account.

      The applicant's appeal (Beschwerde) was rejected by the Vienna

Court of Appeal on 13 November 1991. In addition to the findings of the

Regional Court the Appellate Court pointed out that the victim M.Y. had

also stated before the police that prior to the shooting the applicant

and the brothers K. had been looking for him in the restaurant and the

applicant had insinuated that something would happen to M.Y.  The Court

admitted that M.Y. had on 10 October 1990, when the shooting incident

was reconstructed on the spot, declared not to have seen that the

applicant was in possession of a weapon.  Nevertheless the statements

made on 10 October 1990 in connection with statements made earlier

before the police as well as the investigations about the political

background did not show that there was no reason any longer to suspect

the applicant ("lassen... den Tatverdacht keinesfalls als entkräftet

erscheinen") as he also could have participated even without having

himself used a weapon, for example by securing one of the exits of the

restaurant.  Compensation could however have been granted in accordance

with Section 2 para. 1 lit. b of the Compensation Act in Criminal

Matters (StEG) only if reasons to suspect the applicant had completely

ceased to exist.  It did not suffice to offer a possible explanation

that could invalidate the suspicion; rather it was virtually required

that innocence was proven ("Demnach kann von einer Entkräftung des

Tatverdachtes nicht ausgegangen werden.  Die Grundvoraussetzung für die

Zuerkennung einer Haftenschädigung nach dem § 2 Abs. 1 lit. b StEG ist

jedoch die gänzliche Entkräftung des Tatverdachtes, wobei es nicht

genügt, bloß eine mögliche Erklärung zu bieten, welche zur Entkräftung

des Verdachtes dienen könnte, sondern als Voraussetzung geradezu die

Unschuld erwiesen sein muß.").

COMPLAINTS

      The applicant submits that in rejecting his request for

compensation the courts disregarded evidence offered by him and that

consequently his right to a fair hearing was violated.  He invokes

Article 6 para. 1 and para. 3 (d) in this respect.  Furthermore he

alleges a violation of Article 6 para. 2 of the Convention in that his

request for compensation was wrongly and arbitrarily denied.  In

particular he submits that the Austrian Courts wrongly applied the

relevant provision of the Compensation Act in Criminal Matters by their

finding that compensation could only be granted if the suspicion had

completely ceased to exist.  He furthermore considers that the

statements in the decisions complained of according to which he had not

shown that he had been wrongly suspected of having participated in the

shooting incident constitutes in itself a violation of the principal

of presumption of innocence.  He points out that in criminal

proceedings it is for the prosecution to prove the defendant's guilt

and this should even more so be the case when criminal proceedings are

discontinued because the person concerned has under such circumstances

no possibility of proving his innocence.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 27 September 1990 and

registered on 23 March 1992.

      On 11 January 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

      The Government's written observations were submitted on

6 April 1994.  The applicant replied on 24 May 1994.

      On 17 May 1994 the Commission granted the applicant legal aid.

THE LAW

1.    The applicant first complains under Article 6 (Art. 6) of the

Convention that he was allegedly denied a fair hearing in the

proceedings relating to his request for compensation because the

domestic courts disregarded evidence offered by him.

      The respondent Government deny the applicability of Article 6

(Art. 6) of the Convention.  In addition they observe that a renewed

questioning of all witnesses was superfluous as, contrary to the

applicant's allegation, it was of no relevance whether there existed

any pre-established plot to commit the murder.  A silent mutual

understanding between the offenders at the moment of the crime could

be sufficient.

      The Commission first observes that in a case which was referred

to the European Court of Human Rights and is still pending, it

considered that Article 6 (Art. 6) does apply to the proceedings in

question (see Commission Report of 4 July 1994, Application No.

15346/89, A.M. and J.v.Z. v. the Netherlands).

      The Commission notes that Article 6 (Art. 6) does not guarantee

an unlimited and absolute right to obtain the examination of witnesses.

The assessment of the relevance of available evidence and evidence

offered by a party is in principle a matter for the domestic judge

(Eur. Court H.R., Barbera, Messegué and Jabardo judgment of

6 December 1988, Series A no. 146, p. 31, para. 68).

      In the present case, in the domestic proceedings for

compensation, the applicant did not adduce fresh evidence in first

instance but on appeal only requested that all those who had already

been heard in the course of the criminal investigation relating to the

attempted killing, be heard again.  The appellate court found however,

on the basis of the existing evidence, that at the relevant time there

had been reason to suspect the applicant of being a participant in the

murder plot and that the suspicion had not ceased to exist.  The

appellate court thus did not consider it to be justified to hear again

all persons involved in the matter.  The Commission cannot find that

in so proceeding the appellate court denied the applicant a fair

hearing.  There is consequently no appearance of a violation of Article

6 (Art. 6) of the Convention and this part of the applicant therefore

has to be rejected in accordance with Article 27 para. 2 (Art. 27-2)

of the Convention as being manifestly ill-founded.

2.    The applicant further complains under Article 6 para. 2

(Art. 6-2) of the Convention that his request for compensation was

wrongly dismissed.

      However, with regard to the judicial decision of which the

applicant complains, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention.  In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set out

in the Convention.  The Commission refers, on this point, to its

constant case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp.

222, 236 ; No. 5258/71, Dec. 8.2.73, Collection 43 Pp. 71, 77 ;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

      There is nothing to show that in the present case the domestic

courts applied the relevant substantive law in an arbitrary manner.

      The Commission concludes that this part of the application has

to be rejected as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

3.    The applicant lastly complains under Article 6 para. 2

(Art. 6-2) of the Convention that, despite the discontinuation of the

criminal proceedings against him, the Vienna Regional Court, in its

decision of 9 October 1991, and the Vienna Court of Appeal, in its

decision of 13 November 1991, rejected his compensation claim on the

ground of a continuing suspicion against him.

      The respondent Government consider that the decision in question

does not contain any finding of guilt but only of continuing existence

of reasons to suspect the applicant.

      The applicant finds this unacceptable and argues that he has a

right to be cleared of all suspicion and to obtain compensation for his

detention on remand.

      The Commission recalls that, following the discontinuation of

criminal proceedings, only statements which reflect the opinion that

the person concerned is guilty, and not statements which merely

describe a state of suspicion, infringe the presumption of innocence

(cf. Eur. Court H.R., Minelli judgment of 25 March 1983, Series A

no. 62, p. 18, para. 37; Lutz judgment of 25 August 1987, Series A

no. 123, pp. 24-26, paras. 58-64; Sekanina judgment of 25 August 1993,

Series A no. 266-A, pp. 13-16, paras. 24-30).

      In the present case, the Austrian courts concerned dismissed the

applicant's compensation claim on the ground that, though the

investigations against him had been discontinued, a suspicion

persisted.  It cannot be found that the reasoning of the Austrian

courts amounted to any finding of criminal guilt.

      The applicant's submissions in this respect do not, therefore,

disclose any appearance of a violation of the principle of presumption

of innocence invoked by him.

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

        (M. F. BUQUICCHIO)                   (C.L. ROZAKIS)

 

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