AS TO THE ADMISSIBILITY OF
Application No. 21835/93
by Manfred and Herlinde HAUSER
and Johannes WERNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 2 September 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 16 March 1993 by
Mr. Manfred Hauser, Mrs. Herlinde Hauser and Mr. Johannes Werner
against Austria and registered on 12 May 1993 under file No. 21835/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizen, living in Vienna and born
in 1957, 1959 and 1963, respectively. Before the Commission, they are
represented by Mr. T. Prader, a lawyer practising in Vienna.
The facts of the case, as they have been submitted by the
applicants, may be summarised as follows.
A. Particular circumstances of the case
On 15 May 1991 the first and the second applicant were arrested
on the suspicion of having fraudulently used the credit card of a third
person for purchases in several shops in Vienna and were taken in
detention on remand. On 3 July 1991 the third applicant, suspected of
having forged the signature on the credit card and on the purchase
receipts, was also taken in detention on remand.
On 8 July 1991 the first and the second applicant, and on 19 July
1991 the third applicant, were released from detention.
On 24 February 1992, by decision of the Investigating Judge of
the Vienna Regional Court (Landesgericht), criminal proceedings were
discontinued against all applicants, as a graphological expert found
that the third applicant was not likely to be the author of the
signatures on the purchase receipts and as the Public Prosecutor's
witnesses did not have sufficient recollection.
On 3 June 1992 the Judges' Chamber (Ratskammer) of the Vienna
Regional Court dismissed the applicants' request for compensation for
the pecuniary damage sustained on account of their having been kept in
detention on remand, based on S. 2 para. 1 (b) of the Criminal
Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz).
It found that there still remained a suspicion against all three
applicants.
On 29 October 1992 the Vienna Court of Appeal (Oberlandes-
gericht), in private session, after having heard the Senior Public
Prosecutor's Office (Oberstaatsanwaltschaft), dismissed the applicants'
appeal (Beschwerde). It considered that the criminal proceedings had
been discontinued as no sufficient evidence could be produced, but
that, nevertheless, a suspicion persisted. Such a discontinuation did
not suffice to give rise to a claim for compensation under the relevant
provision of the Compensation Act, as, according to the constant
jurisprudence of the Austrian courts, it had to be established that the
person concerned was not punishable. However, in the present case, the
applicants had not refuted the suspicion existing against them, nor was
this suspicion otherwise dissipated.
The Court of Appeal further considered that the applicants'
requests for the taking of further evidence and for the questioning of
the witnesses on which the Public Prosecutor had based his information
could not have helped to elucidate the facts. The Court noted that the
criminal proceedings had been discontinued due to the insufficient
recollection of these witnesses. Their statements could, therefore, not
have proven the applicants' innocence.
The decision was served on 3 November 1992.
It appears that criminal proceedings against the third applicant
have been resumed.
B. Relevant domestic law
The Criminal Proceedings Compensation Act (Strafrechtliches
Entschädigungsgesetz) provides for compensation for pecuniary loss
resulting from detention on remand. The conditions to be met are laid
down in SS. 2 and 3. S. 2 para. 1 (b) specifies as conditions that the
accused has been acquitted, or that the proceedings against him have
been otherwise discontinued and that the suspicion that he has
committed the offence in question no longer subsists, or that there is
a bar to prosecution which already existed at the time of his
detention.
S. 6 para. 2 stipulates that where a person is acquitted or
criminal proceedings against him are discontinued by a court, the same
court is competent to decide whether the conditions of S. 2 para. 1 (b)
and S. 3 are met. If criminal proceedings are discontinued by decision
of the investigating judge, the judges' chamber decides on a request
for compensation. In these proceedings the detained person has to be
heard and, if necessary, evidence has to be taken. The detained and the
Prosecutor's Office have a right to appeal to the superior court which
can take, if necessary, further evidence.
If the said courts find that the conditions under S. 2 and 3 are
met, the person concerned has to file a request with the Department of
Finance (Finanzprokuratur) for acknowledgment of his claim.
If there is no decision upon his request within six months or if
his claim is partly or fully refused, the person concerned has to
institute civil court proceedings against the Republic of Austria
(SS. 7 and 8). The final decision in the proceedings under the
Compensation Act is binding on the civil courts, which task is to
assess the damage the person concerned has sustained on account of his
having been kept in detention.
Generally, no public hearings are conducted before the Judges'
Chambers and before the Courts of Appeal (in proceedings upon appeals
(Beschwerden) against decisions of the Judges' Chambers). Both decide
in private session, after having heard the Public Prosecutor's Office
or the Senior Public Prosecutor's Office, respectively (S. 32 para. 1
and S. 35 para. 2 of the Code of Criminal Procedure).
COMPLAINTS
1. The applicants complain under Article 6 paras. 1 and 3 (d) of the
Convention that they were refused compensation for their detention on
remand and also about the proceedings concerned. They complain in
particular that they did not have a public hearing before the Judges'
Chamber and the Court of Appeal and that the Courts' decisions were not
pronounced in public. Moreover, they complain that the Court of Appeal
decided after having heard an official of the Senior Public
Prosecutor's Office. They also complain that their requests for the
taking of evidence had not been complied with.
2. Under Article 6 para. 2 of the Convention the applicants complain
about a breach of the presumption of innocence, as the Vienna Court of
Appeal considered that they had to prove their innocence in order to
be awarded compensation, although the criminal proceedings against them
had already been discontinued.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 March 1993 and registered
on 12 May 1993.
By letter of 7 March 1994, the applicants' lawyer informed the
Commission that the first and the second applicant wished to withdraw
their application.
THE LAW
1. As regards the first and the second applicant, the Commission
notes that, by letter of 7 March 1994, their lawyer submitted that they
did not wish to pursue their petition. Consequently, the Commission
only remains confronted with the complaints brought by the third
applicant.
2. The third applicant complains under Article 6 para. 1
(Art. 6-1) of the Convention that he did not have a public hearing in
the compensation proceedings before the Judges' Chamber of the Vienna
Regional Court and the Vienna Court of Appeal. He also complains that,
in the compensation proceedings, the Courts' decisions were not
pronounced publicly as required by this provision. Moreover, he claims
that the principle of equality of arms was infringed in the proceedings
before the Court of Appeal.
The Commission considers it cannot, on the basis of the file,
determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of these complaints to the
respondent Government.
3. The third applicant further complains under Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention that the Vienna Court of Appeal refused
to hear the proposed witnesses and to take the proposed evidence. The
Commission has examined this complaint under Article 6 para. 1
(Art. 6-1) of the Convention.
The Commission, even assuming that Article 6 (Art. 6) applies to
the proceedings in question, recalls that this provision does not give
an absolute right to the examination of every witness proposed by the
defence (Eur. Court H.R., Engel and others judgment of 6 June 1976,
Series A no. 22, p. 38, para. 91; Bricmont judgment of 7 July 1989,
Series A no. 158, p. 31, para. 89).
In the present case, the applicant proposed to take evidence and
to examine witnesses on their statements upon which the Public
Prosecutor's Office had originally based its information. The Court of
Appeal, considering that the insufficient recollection of these
witnesses had inter alia led to the discontinuation of the proceedings,
dismissed these motions, on the ground that they could not provide any
clarification.
In these circumstances, the Commission finds no indication that
the Vienna Court of Appeal, by rejecting the applicant's requests to
take evidence, failed to consider relevant evidence or acted in an
arbitrary and unfair manner.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The third applicant further complains under Article 6 para. 2
(Art. 6-2) of the Convention that the Vienna Court of Appeal
disregarded the presumption of innocence when refusing his claim for
compensation in that, despite the discontinuation of proceedings, they
found that a suspicion against him continued to exist.
The Commission notes that on 24 February 1992 the criminal
proceedings against the third applicant were discontinued and that the
applicant subsequently filed his requests for compensation regarding
his detention on remand. The decisions of the Judges' Chamber of the
Vienna Regional Court and the Vienna Court of Appeal refusing this
request were a direct sequel to the discontinuation of the criminal
proceedings against the applicant. Consequently, Article 6 para. 2
(Art. 6-2) may in principle be invoked with regard to the impugned
decisions (cf. Eur. Court H.R., Englert judgment of 25 August 1985,
Series A no. 123, p. 54, para. 35; Nölkenbockhoff judgment of 25 August
1985, Series A no. 123, p. 79, para. 35).
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,
paras. 24-30, to be published in Series A no. 266).
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. The applicant failed to show that the reasoning of the
Austrian courts amounted to any finding of criminal guilt.
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
DECIDES TO ADJOURN its examination of the application as regards
the third applicant's complaints relating to the lack of a public
hearing and of a public pronouncement of the decisions and about
a breach of the principle of equality of arms in the proceedings
before the Judges' Chamber of the Vienna Regional Court and the
Vienna Court of Appeal;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy