EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 13126/87
Karl SEKANINA
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 20 May 1992)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 14) . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5 - 9) . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 10 - 14) . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 30). . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 15 - 29) . . . . . . . . . . . . . . .3
B. Relevant domestic law
(para. 30) . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 31 - 51). . . . . . . . . . . . . . . . . .6
A. Complaint declared admissible
(para. 31) . . . . . . . . . . . . . . . . . .6
B. Point at issue
(para. 32) . . . . . . . . . . . . . . . . . .6
C. As to the alleged violation of the
presumption of innocence
(paras. 33 - 50) . . . . . . . . . . . . . . .6
Conclusion
(para. 51) . . . . . . . . . . . . . . . . . .9
Dissenting opinion of Sir Basil HALL. . . . . . . . . . . . 10
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 11
APPENDIX II : DECISION AS TO THE ADMISSIBILITY . . . . . 12
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is an Austrian citizen born in 1937, who resides
in Vienna. He is represented before the Commission by
Mr. Wolfgang Moringer, a lawyer practising in Linz.
3. The application is directed against Austria whose Government are
represented by their Agent, Ambassador Helmut Türk, Deputy Secretary
General and Legal Counsel of the Federal Ministry of Foreign Affairs.
4. The case concerns a judicial decision by which the applicant was
refused compensation for unjustified detention following his acquittal
of a charge of murder. The court considered that even after the
acquittal a suspicion continued to exist against the applicant. The
applicant complains that this finding violates the presumption of
innocence under Article 6 para. 2 of the Convention.
B. The proceedings
5. The application was introduced on 21 April and registered on
10 August 1987.
6. On 4 September 1989 the Commission decided to give notice of the
application to the respondent Government and to invite them to submit
observations in writing on the admissibility and merits of the
application.
7. On 1 December 1989 the Government submitted their observations
to which the applicant replied on 9 January 1990.
8. On 3 September 1991 the Commission declared the application
admissible.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. Consultations with the parties took
place between 23 October 1991 and 5 February 1992. The Commission now
finds that there is no basis on which such a settlement can be
effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C. L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M. P. PELLONPÄÄ
B. MARXER
11. The text of this Report was adopted on 20 May 1992 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 of the
Convention is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
13. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. The applicant was detained on remand for about one year, from
1 August 1985 to 30 July 1986, in connection with criminal proceedings
in which he was suspected of having murdered his wife. She died
following a fall out of a window of the matrimonial home on the fifth
floor of an apartment house in Linz.
16. Various remedies by which the applicant sought to challenge the
murder suspicion during his detention were rejected. Eventually he was
tried on a charge of murder and on a further charge of illegal coercion
against a fellow prisoner whom he had allegedly threatened to kill if
he disclosed certain admissions concerning the murder charge which the
applicant had allegedly made during his detention.
17. On 30 July 1986 a Court of Assizes (Geschworenengericht) at the
Regional Court (Landesgericht) of Linz acquitted the applicant of both
charges. The jury rejected the murder charge by a verdict of seven to
one, the coercion charge by a unanimous verdict.
18. The jury stated in its memorandum (Niederschrift der
Geschworenen) concerning the question of murder:
(German)
"Keine stichhaltigen Beweise, um Herrn Sekanina als Mörder zu
verurteilen. Laut medizinischem Gutachten von Prof. Kaiser hätte
die Frau Sekanina ihren Mann noch als Mörder bezeichnen können.
Die Aussagen einiger Zeugen erscheinen uns unglaubwürdig."
(Translation)
"No conclusive evidence justifying Mr. Sekanina's conviction of
murder. According to Prof. Kaiser's medical expert opinion
Mrs. Sekanina would still have been able to call her husband a
murderer. The statements of some witnesses appear incredible to
us."
19. Concerning the question of coercion they stated:
(German)
"Die anderen drei Mithäftlinge haben nichts von einer schweren
Drohung mit dem Tod gehört (laut ihrer Zeugenaussagen)."
(Translation)
"(According to their testimony) the other three fellow prisoners
have not heard anything of a serious threat of killing."
20. The applicant was released immediately after the reading of the
verdict. The public prosecution did not appeal against the applicant's
acquittal.
21. Subsequently, the applicant requested a State contribution to the
necessary costs of his defence (in accordance with Section 393 a of the
Code of Criminal Procedure) and compensation for pecuniary damage
suffered as a result of the fact that he had been kept in detention.
22. The public prosecutor's office raised objections as to the
quantum of the first claim. As regards the second claim, it requested
the court to find that the conditions of Section 2 para. 1 b of the Act
on Compensation in Criminal Matters (strafrechtliches Entschädigungs-
gesetz) were not met as the suspicion raised in the criminal
proceedings against the applicant had not been entirely dissipated.
23. The Regional Court of Linz, sitting without a jury, dealt with
the matter in two separate decisions.
24. On 12 December 1986 it ordered the State to pay a contribution
of 22,546.50 AS towards the necessary costs of the applicant's defence.
The applicant's appeal against this decision, by which he demanded the
award of a higher amount, was rejected by the Linz Court of Appeal
(Oberlandesgericht) on 15 January 1987.
25. On 10 December 1986 the applicant's claim to be awarded
compensation for pecuniary damage was rejected by the Regional Court.
The court stated, noting the applicant's acquittal:
(German)
"Der Verdacht ist erst dann entkräftet, wenn alle gegen den
Verhafteten sprechenden Verdachtsmomente widerlegt worden sind,
so dass sie aufgehört haben, ein Argument für die Schuld des
Verdächtigen zu bilden."
(Translation)
"The suspicion is only dissipated if all elements of suspicion
against the detained have been disproved with the consequence
that they have ceased to provide any argument for the guilt of
the suspect."
26. The court found further that there were still important elements
of suspicion: repeated threats, attacks and aggressions, satisfaction
at his wife's death, admissions made to a fellow prisoner, financial
difficulties, and unsuccessful attempts to be given the custody of the
children. The vote of the jury also showed that it had acquitted the
applicant only because it gave him the benefit of the doubt.
27. On 25 February 1987 the Linz Court of Appeal confirmed this
decision. It rejected the applicant's argument that the relevant
provision of the Act on Compensation in Criminal Matters (Section 2
para. 1 b) was unconstitutional and infringed Article 6 para. 2 of the
Convention because it required, beyond an acquittal, dissipation of
suspicion. The presumption of innocence was to be observed in the
proceedings prior to the judgment, but did not give a right to
compensation to every detained person in case of his acquittal. The
exclusion of compensation in the challenged provision was not based on
guilt, but on continued existence of suspicion. The finding by a court
that such a suspicion still existed did not infringe the presumption
of innocence.
28. In the present case it could not be concluded merely from the
vote of the jury that the suspicion had been dissipated. More
important was the memorandum of the jury which implied doubts in this
respect. In any event the court competent to decide on the
compensation issue was not bound by the acquittal as regards the
question of suspicion. This suspicion had repeatedly been confirmed
in the investigation, in particular by the decisions prolonging the
applicant's detention on remand.
29. The Regional Court had rightly described the elements justifying
the assumption of continued suspicion. In addition there was further
evidence to support this assumption in the light of the trial.
Therefore the applicant's claim to be awarded compensation for
pecuniary damage had to be rejected.
B. Relevant domestic law
30. The relevant parts of Section 2 para. 1 b of the Act on
Compensation in Criminal Matters (Fed. Law Gazette No. 270/1969) read
as follows:
(German)
"Der Ersatzanspruch besteht, wenn
....
b) der Geschädigte wegen des Verdachtes einer im Inland zu
verfolgenden strafbaren Handlung vom einem inländischen Gericht
in vorläufige Verwahrung oder in Untersuchungshaft ... genommen
und in der Folge in Ansehung dieser Handlung freigesprochen ...
worden ist und der Verdacht, daß der Geschädigte diese Handlung
begangen habe, entkräftet ... ist, ... ."
(Translation)
"The right to compensation arises if
...
b) the injured person has been placed in provisional custody or
detention on remand by a domestic court on suspicion of a
criminal offence liable to domestic prosecution ... and if
subsequently he has been acquitted of the charge in question ...
and if the suspicion that the injured person has committed the
offence in question has been dissipated... ."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
31. The Commission has declared admissible the applicant's complaint
that in the decision to refuse him compensation for unjustified
detention on remand the Austrian courts disregarded the presumption of
innocence.
B. Point at issue
32. The Commission must accordingly determine whether there has been
a violation of Article 6 para. 2 (Art. 6-2) of the Convention.
C. As to the alleged violation of the presumption of innocence
33. Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
34. The applicant alleges a violation of this provision in that,
despite his acquittal, the courts assumed a continuing suspicion
against him when rejecting his claim to be compensated for his
detention on remand.
35. The Government submit that the European Court of Human Rights
repeatedly found it compatible with the presumption of innocence, as
laid down in Article 6 para. 2 (Art. 6-2), to refer to a continued
state of suspicion where this did not amount to a determination of the
accused person's guilt (cf. Adolf judgment of 26 March 1982, Minelli
judgment of 25 March 1983, and the Lutz, Englert and Nölkenbockhoff
judgments of 25 August 1987, Eur. Court H.R., Series A nos. 49, 62 and
123). The Government contend that the principles developed in those
judgments also apply in the present case. The statements contained in
the Austrian court decisions complained of in the present case did not
amount to a finding of guilt, but were merely based on a state of
suspicion, and thus compatible with the presumption of innocence as
laid down in Article 6 para. 2 (Art. 6-2).
36. The Commission recalls that despite the wording of Article 6
para. 2 (Art. 6-2), which secures the presumption of innocence to
"everyone charged with a criminal offence" ("toute personne accusée
d'une infraction"), this provision has been consistently interpreted
as also applying to situations where the person concerned is not or no
longer formally charged with a criminal offence (cf. inter alia the
above cases referred to by the Government). Furthermore the
presumption of innocence is to be observed not only by the criminal
court trying a case, but also by other authorities (cf. No. 7986/77,
Petra Krause v. Switzerland, Dec. 13.10.78, D.R. 13 p. 73; No. 9077/80,
X. v. Austria, Dec. 6.10.81, D.R. 26 p. 211; and No. 10847/84, R.F. and
S.F. v. Austria, Dec. 7.10.85, D.R. 44 p. 238) including courts other
than those which are competent to determine a criminal charge (in this
respect, cf. in particular No. 9295/81, X. v. Austria, Dec. 6.10.82,
D.R. 30 p. 227).
37. In the latter case the Commission stated inter alia (loc. cit.
p. 228):
"No authority may treat a person as guilty of a criminal offence
unless he has been convicted by the competent court and in the
case of an acquittal the authorities may not continue to rely on
the charges which have been raised before that court but which
have been proved to be unfounded. This rule also applies to
courts which have to deal with non-criminal consequences of
behaviour which has been subject to criminal proceedings. They
must be bound by the criminal court's finding according to which
there is no criminal responsibility for the acts in question
although this naturally does not prevent them to establish e.g.
a civil responsibility arising out of the same facts."
38. An acquittal does not necessarily exclude the making of official
statements as to the suspicion against or the guilt of the accused in
the course of later stages of the proceedings in the same case. In
particular no problem under Article 6 para. 2 (Art. 6-2) arises where
such statements are made in the context of an appeal against an
acquittal (cf. No. 15871/89, X. v. Federal Republic of Germany, and
No. 17664/91, Y. v. Federal Republic of Germany, Dec. 9.10.91, to be
published in D.R.).
39. Problems may, however, arise where the criminal proceedings are
still pending or where they have resulted in an acquittal or a
discontinuation without a determination of the criminal charges. In
this respect the Convention organs distinguish between statements which
reflect the opinion that the person concerned is guilty, and statements
which merely describe a state of suspicion. The former infringe the
presumption of innocence (cf. in particular Eur. Court H.R., Minelli
judgment, loc. cit., p. 18, para. 37; No. 10107/82, I. and C. v.
Switzerland, Comm. Report 4.12.85, D.R. 48, p. 35; cf. also
No. 12748/87, Grabemann v. Federal Republic of Germany, Dec. 14.3.89,
to be published in D.R.), whereas the latter have been regarded as
unobjectionable in various situations examined by the Convention
organs.
40. Such situations have included statements made by a politician
(cf. No. 7986/77, loc. cit.), the police (Nos. 9077/80 and 10847/84,
loc. cit.) or a court (No. 11170/84, Brandstetter v. Austria,
Dec. 14.7.87, Appendix II to Comm. Report 8.5.90) prior to the
institution of criminal proceedings, and also statements made by courts
in connection with (cf. Eur. Court H.R., Adolf judgment, loc. cit.) or
after the discontinuation of criminal proceedings without the previous
conduct or completion of a procedure satisfying all the requirements
of Article 6 (Art. 6) (cf. Eur. Court H.R., Lutz, Englert and
Nölkenbockhoff judgments, loc. cit.). In those cases the Court found
that Article 6 para. 2 (Art. 6-2) is not violated if the relevant
judicial decisions only describe a state of suspicion and do not
contain a finding of guilt nor impose a penalty or other measure which
can be equated with a penalty.
41. However, the Convention organs have not so far been called upon
to decide the question whether remarks referring to a state of
suspicion are also permitted following a final acquittal of the person
concerned, as in the present case.
42. The Commission recalls that the applicant was refused
compensation for unjustified detention on remand on the ground that
despite his acquittal there continued to exist a suspicion of murder
against him.
43. The relevant decisions were taken under Section 2 para. 1 b of
the Act on Compensation in Criminal Matters which provides for
compensation, inter alia, if the person concerned has been acquitted
and the suspicion against him has been dissipated. The Austrian courts
interpret this provision in the sense that the acquittal must also have
removed any suspicion against the accused.
44. It is not the function of the Convention organs to rule in
abstracto on the compatibility of legal rules with the Convention
Eur. Court H.R., Golder judgment of 21 February 1975, Series A no. 18,
p. 19, para. 39). In the present case the Commission is not called
upon to examine whether the above legal provision is compatible with
the Convention. It only has to review the manner in which it was
applied (cf. Eur. Court H.R., Adolf judgment, loc. cit., p. 18,
para. 39; Nölkenbockhoff judgment, loc. cit., p. 87, para. 41).
45. The Commission has held that no right to compensation for lawful
detention on remand is guaranteed by the Convention in a case where the
accused is eventually acquitted or the proceedings are discontinued
(cf. No. 9108/80, Dec. 14.5.81, D.R. 24 p. 232; No. 9912/82, Lutz v.
Federal Republic of Germany, Comm. Report 18.10.85, para. 43;
No. 10282/83, Englert v. Federal Republic of Germany, Comm. Report
9.10.85, para. 41; and No. 10300/83, Nölkenbockhoff v. Federal Republic
of Germany, Comm. Report 9.10.85, para. 42).
46. However, like any other judicial decisions taken after an
acquittal those concerning compensation claims must not violate the
presumption of innocence enshrined in Article 6 para. 2 (Art. 6-2).
They are required to "presume" that the person concerned is "innocent"
as he has not been "proved guilty according to law".
47. The references to "suspicion" against the applicant made by the
Austrian courts did not relate to the issue of the justification of the
pre-trial suspicion. The impugned remarks of the courts referred to
a suspicion which they believed continued to exist against the
applicant even after his acquittal by the Court of Assizes because in
their view that court's judgment had not dissipated the said suspicion.
48. In the Commission's view the criminal courts' judicial authority
would be severely undermined if after an acquittal a suspicion could
be maintained that the accused had committed the offences dealt with
at the trial. The role of the courts, as conceived in Article 6
(Art. 6) in general and which also finds its expression in the
principle of the presumption of innocence laid down in Article 6
para. 2 (Art. 6-2) excludes such a suspicion in the case of a person
whose record has been cleared by a final acquittal.
49. In the present case the Austrian courts moreover did not limit
their findings to the assumption of a suspicion continuing after the
applicant's acquittal. In the decision of 10 December 1986 the
Regional Court also suggested that such a suspicion could continue to
provide an argument for the "guilt" of the suspect. The Regional
Court's decision further relied on facts in respect of which the
applicant had been acquitted (admissions made to a fellow prisoner).
The Court of Appeal expressly stated that it did not consider itself
bound by the applicant's acquittal.
50. It follows that the statements made by the Austrian courts in the
decisions to refuse the applicant compensation for unjustified
detention were incompatible with the presumption of innocence.
Conclusion
51. The Commission concludes, by 18 votes to 1, that there has been
a violation of Article 6 para. 2 (Art. 6-2) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Dissenting Opinion of Sir Basil HALL
In my opinion there has been no violation of Article 6 para. 2
in this case. The paragraph reads:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law".
Mr. Sekanina had been acquitted after a trial by jury. He
claimed compensation for damage suffered as a result of his having been
kept in provisional detention pending trial. That matter was not dealt
with by the trial court, but by the Regional Court of Linz and, on
appeal, by the Linz Court of Appeal.
The issue before those courts was not whether he was guilty of
the offence with which he had been charged. Their jurisdiction indeed
only arose after an acquittal. They had to determine whether "the
suspicion that the injured person has committed the offence in question
has been dissipated". In these circumstances I do not consider that
Mr. Sekanina can be regarded as having been, at the time at which the
Linz courts dealt with his claim, a person charged with a criminal
offence.
Even if that were not the case I do not find that the remarks
made by the courts amounted to a statement of guilt which offended
against the principle of the presumption of innocence.
I do not read the judgment of the Court of Appeal as questioning
the decision of the jury. The legislation made it plain that acquittal
was not conclusive as to entitlement to compensation. It had also to
be shown that suspicion had been dissipated. The court was therefore
justified in saying that the acquittal was not binding on them. The
courts' statements do not in the circumstances offend against
Article 6 para. 2. They merely reflect the view that all elements of
suspicion had not been disproved, a view which they were required to
formulate under national legislation, which was not of itself
incompatible with Article 6 para. 2 of the Convention.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
21 April 1987 Introduction of the application
10 August 1987 Registration of the application
A. Examination of Admissibility
4 September 1989 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
2 December 1989 Government's observations
9 January 1990 Applicant's observations in reply
3 September 1991 Commission's decision to declare the
application admissible
B. Examination of the merits
5 September 1991 Decision on admissibility transmitted
to the parties
11 January 1992 Commission's consideration of the
state of proceedings
14 May 1992 Commission's deliberations on the
merits and final votes
20 May 1992 Adoption of the Report
Full & Egal Universal Law Academy