AS TO THE ADMISSIBILITY OF
Application No. 20111/92
by Bernhard KLEINLERCHER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 January 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
G.B. REFFI
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 14 April 1992 by
Bernhard KLEINLERCHER against Austria and registered on 11 June 1992
under file No. 20111/92;
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 facts of the case as they have been submitted by the
applicant may be summarised as follows:
A. The particular circumstances of the case
The applicant is an Austrian national born in 1965 and residing
in Vienna. Before the Commission he is represented by Mr. Pochieser,
a lawyer practising in Vienna.
On 11 August 1988, in the course of the evacuation of a building
in Vienna, which was to be demolished, various persons tried to prevent
the demolition and resisted the police enforcing the evacuation. Nine
police officers were injured. The offenders escaped to a nearby
building which was then cordoned off. This building was the applicant's
place of residence.
On the following morning, on the basis of an oral arrest warrant
issued by the Investigating Judge at the Vienna Regional Court (Landes-
gericht), the applicant and numerous other persons were arrested and
detained. Mr. Pochieser was the applicant's counsel in the ensuing
criminal proceedings.
On 14 August 1988 the Investigating Judge opened preliminary
investigations (Voruntersuchung) against the applicant. Furthermore,
he ordered the applicant's detention on remand. Referring to S. 180
para. 2 of the Code of Criminal Procedure (Strafprozeßordnung), the
Investigating Judge found that there was a reasonable suspicion that
the applicant, together with accomplices, had committed the offence of
resisting a public official in the exercise of official authority
(Widerstand gegen die Staatsgewalt), of having caused bodily harm to
police officers and of having participated in a riot on 11 August 1988.
There was also reasonable suspicion that he again committed the offence
of resisting a public official in the exercise of official authority
on 12 August 1988. He also considered that there was a danger of
collusion, danger of repetition of the offences and a danger of the
applicant's absconding.
On 25 August 1988 the applicant was released from detention on
remand on the ground that, following the subsequent police
investigations, no reasonable suspicion persisted.
On 4 November 1988 the Investigating Judge at the Vienna Regional
Court discontinued the criminal proceedings against the applicant.
On 30 November 1988 the applicant filed two requests for
compensation regarding his detention, referring to S. 2 para. 1 (a)
of the Criminal Proceedings (Compensation) Act (Strafrechtliches
Entschädigungsgesetz), which concerns cases of unlawful arrest and
detention, and to S. 2 para. 1 (b) of this Act, which concerns cases
of acquittal or otherwise discontinuation of criminal proceedings.
These requests were dealt with by different courts in two sets of
proceedings.
On 7 February 1990, in the first set of proceedings, the Judges
Chamber (Ratskammer) of the Vienna Regional Court, referring to S. 2
para. 1 (b) of the Criminal Proceedings (Compensation) Act, dismissed
the applicant's claim for compensation regarding the discontinuation
of the investigations against him.
On 28 June 1990 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal against the decision of
7 February 1990. The Court of Appeal confirmed that the conditions for
compensation under S. 2 para. 1 (b) of the Criminal Proceedings
(Compensation) Act were not met. In particular, the suspicion against
the applicant had not been dissipated.
On 12 December 1990, in the second set of proceedings, the Vienna
Court of Appeal, sitting as court of first instance, dismissed the
applicant's claim for compensation under S. 2 para. 1 (a) of the
Criminal Proceedings (Compensation) Act. The Court of Appeal considered
that the applicant's arrest had been lawful and the detention on remand
had been justified.
On 26 September 1991 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's appeal against the Court of Appeal's decision
of 12 December 1990. The Supreme Court confirmed that at the time of
the applicant's arrest there had been a strong suspicion that he had
taken part in supplying Molotov cocktails, weapons, and other objects
to be used in resisting the police officers, and that he had thus, by
aiding and abetting the resistance, been directly involved in the
criminal offences committed on the occasion of the evacuation. This
decision was served on 14 October 1991.
B. Relevant domestic law
1. Detention on remand
Under S. 180 paras. 1 and 2 of the Code of Criminal Procedure
(Strafprozeßordnung), a person may be held in detention on remand -
where there are serious grounds for suspecting him of having committed
a criminal offence - if there is a risk of his absconding, of collusion
or of repetition of the offences.
2. Compensation regarding pecuniary damages resulting from detention
on remand
The Criminal Proceedings (Compensation) Act (Strafrechtliches
Entschädigungsgesetz) provides for compensation regarding pecuniary
damages resulting from detention on remand. The conditions to be met
are laid down in SS. 2 and 3.
S. 2 para. 1 (a) concerns the case of unlawful detention on
remand. S. 2 para. 1 (b) mentions as conditions that the accused was
acquitted, or that the proceedings against him were otherwise
discontinued and the suspicion that he had committed the offence in
question did not subsist, or that there was a bar to prosecution which
had already existed at the time of his detention.
COMPLAINTS
1. The applicant complains under Article 5 paras. 1 and 5 of the
Convention about his allegedly unlawful arrest and detention on remand
and the refusal of compensation in this respect.
2. He complains under Article 6 para. 2 of the Convention about a
violation of the presumption of innocence in that, despite the
discontinuation of the proceedings against him, the Austrian courts,
in particular the Supreme Court, assumed a continuing suspicion against
him when rejecting his compensation claims. He also invokes Article 6
paras. 1 and 3 in this respect.
3. The applicant further complains under Article 8 of the Convention
about identification measures (erkennungsdienstliche Maßnahmen)
allegedly taken by the police upon his arrest.
THE LAW
1. The applicant complains under Article 5 para. 1 (Art. 5-1) of the
Convention about his arrest and detention on remand. He further invokes
Article 5 para. 5 (Art. 5-5) of the Convention regarding the refusal
of compensation for his allegedly unlawful arrest and detention in the
proceedings before the Vienna Court of Appeal and the Supreme Court.
The Commission notes that the applicant was arrested on the basis
of an arrest warrant issued by the Investigating Judge at the Vienna
Regional Court, and taken into detention on remand under S. 180 of the
Austrian Code of Criminal Proceedings. The Investigating Judge
suspected the applicant of having committed various offences in the
course of the events on 11 and 12 August 1988. There is no indication
that the applicant's deprivation of liberty was not "lawful" and "in
accordance with a procedure prescribed by law" within the meaning of
Article 5 para. 1 (Art. 5-1).
The remaining issue is whether there existed a reasonable
suspicion, as required under Article 5 para. 1 (c) (Art. 5-1-c). A
"reasonable suspicion" presupposes the existence of facts or
information which would satisfy an objective observer that the persons
concerned may have committed the offence (Eur. Court H.R., Fox,
Campbell and Hartley judgment of 30 August 1990, Series A no. 182, p.
16, para. 32).
The Commission notes that the Investigating Judge, in his
decision of 14 August 1988, referred in some detail to the applicant's
role in the events on 11 and 12 August 1989. His reasoning as to the
suspicion against the applicant was confirmed by the Vienna Court of
Appeal and the Supreme Court in the ensuing compensation proceedings
under S. 2 para. 1 (a) of the Criminal Proceedings (Compensation) Act.
In the circumstances of the present case, the Commission is
satisfied that, on the basis of the investigation results at the early
stage of the proceedings, there had been sufficient ground to suspect
that the applicant had committed various criminal offences in the
course of the above-mentioned events. Consequently, there had been a
"reasonable suspicion' against him within the meaning of Article 5
para. 1 (c) (Art. 5-1-c) of the Convention.
Accordingly, there is no appearance of a violation of the
applicant's right to liberty under Article 5 para. 1 (Art. 5-1) of the
Convention.
The question of compensation under Article 5 para. 5 (Art. 5-5)
of the Convention does not, therefore, arise.
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.
2. The applicant further complains under Article 6 para. 2
(Art. 6-2) of the Convention that, despite the discontinuation of the
criminal proceedings against him, the Vienna Court of Appeal, in its
decision of 12 December 1990, and the Supreme Court, in its decision
of 26 September 1991, rejected his compensation claims on the ground
of a continuing suspicion against him.
The Commission, even assuming compliance with the six-months'
time-limit under Article 26 (Art. 26) of the Convention, notes that on
4 November 1988 the criminal proceedings against the applicant were
discontinued, and that the applicant filed his request for compensation
regarding his detention on remand on 30 November 1988. The decisions
of the Vienna Court of Appeal and the Supreme Court 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.
The applicant's submissions in this respect do not, therefore,
disclose any appearance of a violation of the further rights 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.
3. The applicant finally complains under Article 8 (Art. 8) of the
Convention about identification measures taken by the Austrian police
authorities upon his arrest. The applicant failed to substantiate this
matter. The Commission, even assuming compliance with Article 26
(Art. 26) of the Convention, finds no indication that any interference
with the applicant's right to respect for his private life in this
respect, could not be regarded as justified under Article 8 para.
2 (Art. 8-2). Consequently, there is no appearance of a violation of
the right invoked by the applicant. Accordingly, this complaint is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy