AS TO THE ADMISSIBILITY OF
Application No. 20602/92
by Zoltan SZÜCS
against Austria
The European Commission of Human Rights sitting in private on
23 October 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 24 August 1992 by
Zoltan SZÜCS against Austria and registered on 9 September 1992 under
file No. 20602/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the Commission's decision of 29 June 1994 to
declare the application partly inadmissible and to communicate the
remainder of the application to the respondent Government for
observations on its admissibility and merits;
Having regard to the observations submitted by the respondent
Government on 11 October 1994 and the observations in reply submitted
by the applicant on 9 December 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant is a Hungarian national, born in 1971 and residing
in Halaszetelek (Hungary). Before the Commission he is represented by
Mr. T. Schreiner, a lawyer practising in Eisenstadt (Austria).
A. The particular circumstances of the case
On 8 October 1990 the investigating judge of the Wiener Neustadt
Regional Court (Kreisgericht) opened preliminary investigations and
issued a warrant of arrest (Haftbefehl) against the applicant and three
others for suspicion of aggravated professional fraud committed between
9 and 31 May 1990 in Austria. The investigating judge found that there
existed a danger of absconding as the suspects had no fixed abode in
Austria and had left Austria after having committed the offences they
were suspected of. He further found that there existed a danger of
collusion as it was unclear how the suspects had come into possession
of the credit card of Mrs. S.K. which was used in committing the
offences.
On 25 February 1991 the applicant was arrested upon his entry
into Austria at the Austrian-Hungarian border.
On 26 February 1991 an investigating judge at the Eisenstadt
Regional Court questioned the applicant, who stated that he had only
accompanied the other suspects on a trip to Italy as their driver and
had never been present when they went shopping. The investigating
judge ordered the applicant's detention on remand. Referring to the
warrant of arrest of 8 October 1990, he found that there was a
reasonable suspicion that the applicant together with other suspects
had committed aggravated fraud by buying goods of a value of some
200.000 AS in different shops in Austria with a stolen credit card
(issued to Mrs. S.K.). According to information received from
Interpol, the applicant together with three other suspects had been
arrested on 31 May 1990 in Italy and had then been found in possession
of the stolen credit card. After an interrogation by the Italian
police the applicant had been expelled from Italy. The investigating
judge also considered that there was a danger of collusion, a danger
of the applicant absconding and a danger of commission of new offences.
On 4 April 1991 the applicant was heard again by the
investigating judge.
On 12 April 1991 the public prosecutor requested that the expert
opinion of a graphologist be taken for ascertaining whether the
applicant had signed the credit card purchase receipts.
On 15 April 1991 the applicant requested that an ex officio
defence counsel be appointed and waived his right to a hearing with a
view to the examination of the lawfulness of his detention on remand
(Haftprüfungsverhandlung). On the same day the investigating judge
ordered that a defence counsel be appointed for the applicant, that a
graphologist prepare an expert report within 10 days and had samples
of the applicant's handwriting taken.
On 6 May 1991 the graphological expert stated that the signatures
on the purchase receipts were unlikely to have been made by the
applicant. On the same day, upon a request by the public prosecutor,
the investigating judge decided to discontinue the criminal proceedings
and ordered the applicant's release from detention on remand.
On the same day the applicant requested compensation for his
detention.
On 8 May 1991 the Judges' Chamber (Ratskammer) at the Wiener
Neustadt Regional Court dismissed the applicant's claim for
compensation under S. 2 para. 1 (b) of the Criminal Proceedings
Compensation Act (Strafrechtliches Entschädigungsgesetz). The Judges'
Chamber found that at the time of the applicant's arrest a serious
suspicion against him had existed. Criminal proceedings had been
discontinued against him because clear evidence could not be produced.
Nevertheless a serious suspicion against him continued to exist.
On 17 May 1991 the applicant again requested that compensation
be granted pursuant to S. 2 para. 1 (b) of the Criminal Proceedings
Compensation Act.
On 27 May 1991 the applicant appealed against the decision of
8 May 1991 to the Vienna Court of Appeal (Oberlandesgericht). He
submitted, inter alia, that the Judges' Chamber's finding according to
which a serious suspicion against him continued to exist violated the
principle of presumption of innocence. He also submitted that the
length of his detention had been unreasonable and requested
compensation for unlawful detention under S. 2 para. 1 (a) of the
Criminal Proceedings Compensation Act in this respect.
On 9 January 1992 the Court of Appeal dismissed the applicant's
appeal. It found that, as the other suspects could not be traced in
Austria, it had been necessary to establish whether the signatures on
the purchase receipts with the credit card had been made by the
applicant, who could have disguised himself as a woman on the occasion
of the purchases. The graphological expert had only indicated that
the signatures were unlikely to have been made by the applicant.
Furthermore, there was still the suspicion that he had aided and
abetted the other suspects. Therefore, the suspicion against the
applicant had not been dissipated.
On the same day, the Court of Appeal, in a separate decision,
dismissed the applicant's claim for compensation for unlawful detention
under S. 2 para. 1 (a) of the Criminal Proceedings Compensation Act.
The applicant did not appeal to the Supreme Court (Oberster
Gerichtshof) against this decision.
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 for pecuniary damage resulting from detention on
remand
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 (a) relates to the case of unlawful
detention on remand. 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. 1 stipulates that when a court orders or prolongs
detention on remand, the superior court is competent to decide whether
the conditions of S. 2 para. 1 (a) and S. 3 are met. 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.
In these proceedings the detained person has to be heard and, if
necessary, evidence has to be taken. According to S. 6 para. 4 a
decision on a compensation claim under S. 2 para. 1 has to be served
on the person concerned but not to be made public. The detained and
the Prosecutor's Office have a right to appeal to the superior court
which can take, if necessary, further evidence. The final decision in
these proceedings is binding on the civil courts.
If the said courts find that the conditions under SS. 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).
3. Inspection of files under S. 82 of the Code of Criminal
Procedure
According to S. 82 of the Code of Criminal Procedure it is left
to the discretion of the courts, in other cases than those mentioned
specifically in the Code of Criminal Procedure, to grant leave to third
parties for inspection of a file if they show that the inspection is
necessary for raising a claim for compensation or for other reasons.
COMPLAINTS
The applicant's remaining complaint under Article 6 para. 1 of
the Convention concerns the fact that in the respective compensation
proceedings, the Court of Appeal's decisions were not pronounced
publicly as required by this provision.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 August 1992 and registered
on 9 September 1992.
On 29 June 1994 the Commission decided to communicate the
applicant's complaint under Article 6 para. 1 of the Convention as
regards the lack of a public pronouncement of the Court of Appeal's
decision and declared inadmissible the remainder of the application.
The Government's written observations were submitted on 11
October 1994. The applicant replied on 9 December 1994.
THE LAW
1. The applicant complains that in the respective compensation
proceedings, the Court of Appeal's decision was not pronounced publicly
as required by Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, reads as follows:
"(1) In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly ..."
2. The Government submit that with regard to the claim for
compensation under S. 2 para. 1 (a) of the Criminal Proceedings
Compensation Act the applicant failed to exhaust domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention as he did
not appeal against the decision of the Court of Appeal of 9 January
1992 to the Supreme Court. As regards the applicant's claim under S.
2 para. 1 (b) of the Criminal Proceedings Compensation Act the
applicant also did not exhaust domestic remedies. Although he appealed
against the Judges' Chamber's decision of 8 May 1991, he neither
requested an oral hearing nor submitted that the lack of an oral
hearing would violate Article 6 para. 1 (Art. 6-1) of the Convention.
The applicant acknowledges that with regard to his claim under
S. 2 para. 1 (a) of the Criminal Proceedings Compensation Act he failed
to appeal to the Supreme Court. As regards the claim under S. 2 para.
1 (b) of the Criminal Proceedings Compensation Act he submits that a
request for holding a public hearing was not possible since the
relevant law does not provide for a hearing.
The Commission finds that the question whether the applicant
could and should have asked for an oral hearing and public
pronouncement of the courts' decisions in the compensation proceedings
and whether he could have raised this issue at all in an appeal to the
Supreme Court are matters related to the merits of the complaint and
cannot be determined at this stage of the proceedings.
The Commission therefore considers that the complaint cannot be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention for
non-exhaustion of domestic remedies.
3. As regards the applicability of Article 6 para. 1 (Art. 6-1), the
Government submit that the proceedings under the Criminal Proceedings
Compensation Act concern a public law claim. They point out that the
Commission, in the case of Bach v. Austria (No. 9661/82, Dec. 14.7.83,
D.R. 34 p. 127) did not apply Article 6 (Art. 6) to proceedings under
the Criminal Proceedings Compensation Act, finding that the claim is
not comparable to claims under the Law on Damages, as is does not
require a punishable conduct by a civil servant or a violation of the
law at all. Moreover, the proceedings under the Criminal Proceedings
Compensation Act, as far as they are conducted by the criminal courts,
are only of a preparatory nature. Once the criminal courts have decided
on the validity of a compensation claim, compensation has to be
requested from the Federal Government, represented by the Department
of Finance. If the Department does not decide within six months or if
it refuses the claim, action must be brought before the civil courts.
Therefore, the outcome of the contested proceedings was not directly
decisive for the applicant's civil rights. The applicant contests this
view.
The Government further consider that the applicant's complaint
regarding the lack of a public pronouncement of the courts' decisions
in the compensation proceedings is covered by the Austrian reservation
to Article 6 (Art. 6) of the Convention which provides as follows:
"The provision of Article 6 (Art. 6) of the Convention
shall be so applied that there shall be no prejudice to the
principles governing public court hearings laid down in
Article 90 of the 1929 version of the Federal
Constitutional Law."
The Government submit that the Austrian reservation is in
accordance with Article 64 (Art. 64) of the Convention. The relevant
provision excluding public pronouncement of the court's decision on the
claim for compensation was in force at the time the reservation was
made. Although the Criminal Proceedings Compensation Act dates from
1969, also the previous Act of 19 August 1918 on Compensation for
Detention Pending Investigation provided in S. 3 para. 1 that the
State's obligation to pay compensation should be determined by a
decision which shall not be made public but shall be served on the
person affected. Furthermore the reservation is sufficiently specific
for the purpose of Article 64 (Art. 64) of the Convention. As regards
the requirement of the "brief statement of the law" the reservation
reproduces almost literally the contents of Article 90 of the Federal
Constitution. From these words it can be deduced that the reservation
refers to procedural laws in the judicial sphere which contain
regulations concerning the publicity of proceedings deviating from
Article 6 (Art. 6) of the Convention. The applicant contests this
view.
As regards the compliance with Article 6 para. 1
(Art. 6-1) of the Convention, the Government submit that the Vienna
Court of Appeal when deciding on the applicant's appeal could take its
decision on the basis of the file. According to the Convention organs'
case-law a public hearing, including the public pronouncement of a
decision, is only necessary when a court is concerned with establishing
the facts.
The Government, referring to the Sutter judgment of the Court,
(Eur. Court H.R., Sutter judgment of 22 February 1984, Series A no. 74)
finds that the requirement of public pronouncement of the decision was
met because third parties could be given access to the files and be
allowed to make copies, if they proved a legitimate interest.
The applicant submits that the possibility that third parties
inspect the file cannot replace the public pronouncement of decisions,
since it requires that these persons must demonstrate a legitimate
interest in the outcome of the proceedings at issue.
After an examination of this issue in the light of the parties'
submissions, the Commission considers that it raises questions of fact
and law, including questions concerning the Austrian reservation to
Article 6 (Art. 6) of the Convention, which can only be determined by
an examination of the merits. It follows that this complaint cannot be
declared inadmissible as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
grounds for inadmissibility have been established.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE the remainder of the application, without
prejudging the merits.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy