AS TO THE ADMISSIBILITY OF
Application No. 24429/94
by Saso REBRICA
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 January 1996, 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. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 9 June 1994 by
Saso REBRICA against Austria and registered on 17 June 1994 under file
No. 24429/94;
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, born in 1970, is a Slovenian national and resident
in Gorna Radgona, Slovenia. In the proceedings before the Commission
he is represented by MM. W. Thurner, P. Schaden and W. Vacarescu,
lawyers practising in Graz.
On 24 September 1992 the applicant and a second person entered
Austria by car at the Slovenian/Austrian border. Upon the customs
inspection, the Austrian customs authorities discovered that their car
had been stolen in Germany and that firearms were hidden underneath the
back seat. Both the applicant and the second person were arrested and
criminal proceedings were instituted against them on the suspicion of
grave theft and of offences under the War Equipment Act
(Kriegsmaterialiengesetz). On 26 September 1992 they were taken into
detention on remand.
On 23 October 1992 the applicant requested that he be released
from detention on remand. He repeated his earlier statements that he
had only been co-driver in the car and not been involved in the
offences concerned. On 11 November 1992 the Graz Regional Court
(Landesgericht) ordered the applicant's release. The Public
Prosecutor's Office (Staatsanwaltschaft) lodged an appeal. However,
on 13 November 1992, following information by the German prosecution
authorities that no request for the applicant's extradition would be
lodged, the appeal was withdrawn and the applicant released. The
proceedings were discontinued on 20 January 1993.
Subsequently, the applicant filed a request for compensation
regarding his detention, referring to S. 2 para. 1 (b) of the Criminal
Proceedings (Compensation) Act (Strafrechtliches Entschädigungsgesetz),
which concerns cases of acquittal or otherwise discontinuation of
criminal proceedings.
On 7 April 1993 the Judges Chamber (Ratskammer) of the Vienna
Regional Court dismissed the applicant's claim for compensation
regarding the discontinuation of the investigations against him.
In its decision, the Judges Chamber noted the background and the
course of the criminal proceedings against the applicant. Referring
to S. 2 para. 1 (b) of the Criminal Proceedings (Compensation) Act, it
observed that, following discontinuation of criminal proceedings, a
suspect could only request compensation for his detention on remand if
the suspicion of his having committed the offence in question had been
dissipated. The Judges Chamber considered that, in the circumstances
of the applicant's arrest in a stolen car with firearms hidden inside,
there had been a strong suspicion (erheblicher Tatverdacht) that the
two suspects had collaborated. This suspicion had subsequently not
been confirmed with the certainty necessary for the applicant's
conviction, but had however not been dissipated. There were no other
circumstances justifying his compensation claim.
On 30 December 1993 the Graz Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal against the decision of 7 April 1993.
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. The Court of Appeal noted that the applicant had been
co-driver in a stolen car on the occasion of transport of firearms.
The applicant's defence that he had merely been invited to a drive to
Germany had not been confirmed by the second suspect who had indicated
a destination in Austria. Moreover, firearms had been found underneath
the applicant's seat and in the side partition of the door on his side.
Finally, in the course of a search of his house in Slovenia, blank
school diplomas had been found. Having regard to all circumstances,
there was nothing to show that the applicant had been acting in good
faith. His release from detention on remand had been ordered on the
ground that the strong suspicion of his having committed the offences
concerned had ceased to exist. The Court of Appeal, referring to the
above statements, further observed that the applicant's detention on
remand had not been unlawful. The decision was served on
10 January 1994.
B. Relevant domestic law
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) lays down 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
The applicant 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
assumed a continuing suspicion against him when rejecting his
compensation claims.
THE LAW
The applicant complains under Article 6 para. 2 (Art. 6-2) of the
Convention that, despite the discontinuation of the criminal
proceedings against him, his compensation claims in respect of his
detention on remand were dismissed on the ground of a continuing
suspicion against him.
The Commission notes that on 20 January 1993 the criminal
proceedings against the applicant were discontinued, and that he only
subsequently filed his request for compensation regarding his detention
on remand. However, the Austrian court decisions 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, Series
A no. 266, 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. 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 presumption of innocence
within the meaning of Article 6 para. 2 (Art. 6-2) of the Convention.
It follows that the application is 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)
Full & Egal Universal Law Academy