AS TO THE ADMISSIBILITY OF
Application No. 12070/86
by Manfred BACH
against Austria
The European Commission of Human Rights sitting in private on
4 May 1987, the following members being present:
MM. C.A. NØRGAARD, President
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 February 1986
by Manfred BACH against Austria and registered on 1 April 1986 under
file No. 12070/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1953, and living in
Kaiserslautern. He is represented by Mr G. Schantl, a lawyer
practising in Ettlingen.
1. The applicant has lodged a previous application (No. 9661/82)
based on the following facts: From 30 January 1974 until
3 February 1975 he had been detained on remand in Austria on the
suspicion of being a drug pedlar and of having committed theft and
smuggling. An indictment against the applicant and some co-accused
was filed in January 1975. A trial started in May 1975 but, as the
applicant did not attend, the proceedings against him had to be
severed from the proceedings against his co-accused.
In February 1976 the Austrian proceedings against the
applicant were stayed in view of the fact that the charges levelled
against him had become the object of criminal proceedings instituted
against him in the Federal Republic of Germany. On 27 November 1980
the applicant was acquitted by the Kaiserslautern Regional Court
(Landgericht) on the ground that for factual reasons it could not be
established that the applicant had dealt with drugs. That judgment
became final.
In consequence of the above acquittal the Public Prosecutor in
Graz decided on 8 April 1981 that no further action would be taken
against the applicant.
On 8 July 1981 the competent chamber (Ratskammer) in criminal
matters of the Regional Court (Landesgericht) in Graz refused the
applicant's request for compensation under Section 2 (1)(b) of the
Austrian Act on Compensation in Criminal Matters (Strafentschädigungs-
gesetz). The Court held that the conditions for such a claim were not
fulfilled because the suspicion which had given rise to the
applicant's arrest and subsequent detention on remand had not been
invalidated by the judgment of the Kaiserslautern Court.
The applicant's appeal (Beschwerde) was rejected by the Court
of Appeal in Graz on 20 August 1981. The Court stated that it had not
been possible to hear the applicant personally in accordance with
Section 6 (3) of the Act on Compensation in Criminal Matters because
the applicant had not complied with several summonses issued by the
Austrian police. In view of the fact that the record
(Verhandlungsprotokoll) concerning the Kaiserslautern trial did not
contain the complete statements of the witnesses heard by the
Kaiserslautern trial court the Austrian appellate court pointed out
that it had to determine the applicant's claim mainly on the basis of
the evidence obtained in the Austrian investigation proceedings. The
appellate court inferred from these statements that the suspicion
against the applicant had not been invalidated by his acquittal.
A further appeal was rejected by the Supreme Court (Oberster
Gerichtshof) on 8 October 1981 as being inadmissible.
Another request for compensation under Section 2 (1)(a) of the
Act on Compensation in Criminal Matters was likewise rejected.
Before the Commission the applicant complained in his previous
application that his requests to acknowledge his compensation claim
were wrongly rejected without a public oral hearing, without a hearing
of witnesses, without communication to him of the comments submitted
by the Attorney General, and without public pronouncement of the
decisions. He invoked, in particular, Article 6 of the Convention.
The previous application was declared inadmissible by the
Commission on 14 July 1983. The Commission considered, inter alia,
that Article 6 of the Convention was not applicable to the proceedings
in question. It noted that claims under the Act on Compensation in
Criminal Matters did not require that a public official acted in a
guilty manner. Compensation could even be obtained where the law had
not been violated. Claims under the Act on Compensation in Criminal
Matters were therefore in no way assimilated or comparable to private
law claims for damages relating to tort liability. Furthermore it was
pointed out that the right to liberty, interferences with which can be
compensated according to the Act on Compensation in Criminal Matters,
was not a civil right within the meaning of Article 6 of the
Convention.
2. The present application is based on the following facts:
After the decision of the Austrian criminal court refusing
compensation for detention had become final, the applicant brought a
civil action before the Innsbruck Regional Court again claiming such
compensation. He argued that only the trial court which acquits a
defendant is competent to decide whether or not this defendant has a
compensation claim under Section 6 (2) of the Act on Compensation in
Criminal Matters. As he had been acquitted by a German court the
Austrian criminal court at Graz had not been competent to decide
whether or not he qualified for compensation. His claim, which was to
be considered as a civil right within the meaning of Article 6 para. 1
of the Convention, therefore had to be determined by a civil court.
The action was dismissed on 5 November 1983 on the ground that,
according to Section 6 (7) of the Act on Compensation in Criminal
Matters, the decision given in the preceding proceedings by the Court
of Appeal in Graz on 20 August 1981 was binding. The judgment of
5 November 1983 was confirmed by the Supreme Court on 16 September 1985.
This Court rejected the applicant's argument that the Austrian
criminal court could only give a binding decision under Section 6 (2)
of the Act on Compensation in Criminal Matters in relation to
circumstances established in the course of the investigation
proceedings in Austria while it was not competent to take evidence
with regard to circumstances leading to his acquittal by a German
court. The Supreme Court pointed out that under Article 3 of the
Treaty on Mutual Assistance in Legal Matters (Rechtshilfeüberein-
kommen) the Austrian criminal courts could have requested the
Kaiserslautern Regional Court to submit files or other documents as
evidence in the applicant's case. The Supreme Court further stated
that Section 6 (7) of the Act on Compensation in Criminal Matters was
compatible with constitutional provisions, in particular with Article
6 of the Convention. It considered the latter provision to be
applicable to the proceedings in question, stating that a claim by a
private person against the State for compensation for detention
on remand was a civil right as it had eventually to be determined by
the courts. It then stated that the binding effect of the decisions
given by the criminal courts would be incompatible with Article 6 of
the Convention only if the proceedings before the criminal courts
violated that provision. Referring to the Austrian reservation with
regard to Article 6 the Supreme Court considered, however, that the
proceedings in question did not violate any of the provisions of this
Article.
COMPLAINTS
The applicant complains that his civil action was rejected
without taking of evidence simply on account of the binding effect of
the decisions given by the Austrian criminal courts in proceedings
which in his opinion had not been in conformity with Article 6 of the
Convention. The proceedings before the criminal courts relating to his
claim for compensation under the Act on Compensation in Criminal
Matters violated Article 6 because:
- there had been no public oral hearing and no public pronouncement
of the decision;
- there had been no taking of evidence;
- he was not informed about the comments submitted by the Attorney
General.
Since the civil courts, being bound by the decisions of the
criminal court, could not correct the result obtained in the
proceedings before the criminal courts, he was again deprived of a
fair trial.
The applicant requests the Commission to reconsider, in the
light of the Austrian Supreme Court's case-law, its decision according
to which Article 6 is not applicable to proceedings concerning a claim
for compensation of a person who was acquitted of an accusation in
relation to which he had been detained on remand. He considers that
his present application is based on relevant new facts, mainly the
civil proceedings which he instituted subsequent to his previous
application.
THE LAW
The applicant has complained that, in view of the binding
effect of the decision given by an Austrian criminal court denying his
entitlement under Section 2 (1)(b) of the Act on Compensation in
Criminal Matters to compensation for his detention on remand, his
subsequent action for damages was likewise dismissed by the competent
Austrian civil courts without a fair hearing.
It is true that Article 6 para. 1 (Art. 6-1) of the Convention
secures to everyone the right to a fair and public hearing in the
determination of his civil rights and obligations. However, the
Commission, in its decision of 14 July 1983 rejecting the applicant's
previous application No. 9661/82, has held that Article 6 (Art. 6) of
the Convention does not apply to proceedings relating to compensation
claims under the Act on Compensation in Criminal Matters because
claims under this Act are "in no way assimilated or comparable to
private law claims for damages relating to tort liability" and can
therefore not be considered to constitute "civil rights" within the
meaning of Article 6 para. 1 (Art. 6-1). The Commission sees no
reason to depart from this jurisprudence. The fact that, as the
Austrian Supreme Court pointed out, a claim under the Act on
Compensation in Criminal Matters has to be determined by the courts,
is not in itself decisive for the qualification of the right in
question to be of private or public law character.
Moreover, the Commission considers that the binding effect
under Section 6 (7) of the Act on Compensation in Criminal Matters of
a decision given by a criminal court, finding no basis for
compensation under the Act in question, is compatible with Article 6
(Art. 6) of the Convention.
It follows that, the present application must, in any case, be
rejected as being manifestly ill-founded in the sense of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)