EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 20602/92
Zoltán Szücs
against
Austria
REPORT OF THE COMMISSION
(adopted on 3 September 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-35) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-28). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 29-35). . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 36-68) . . . . . . . . . . . . . . . . . . . . .7
A. Complaint declared admissible
(para. 36). . . . . . . . . . . . . . . . . . . . .7
B. Point at issue
(para. 37). . . . . . . . . . . . . . . . . . . . .7
C. Article 6 of the Convention
(paras. 38-68). . . . . . . . . . . . . . . . . . .7
a. Applicability of Article 6
(paras. 38-46) . . . . . . . . . . . . . . . .7
b. Compliance with Article 6
(paras. 47-68) . . . . . . . . . . . . . . . .9
aa. The Austrian reservation to Article 6
(paras. 47-54) . . . . . . . . . . . . . . . .9
bb. The absence of a public pronouncement of the
Court of Appeal's decisions
(paras. 55-67) . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 68). . . . . . . . . . . . . . . . . . . . 14
DISSENTING OPINION OF MRS. G.H. THUNE
AND MR. H.G. SCHERMERS. . . . . . . . . . . . . . . . . . . 15
APPENDIX (I): PARTIAL DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF THE APPLICATION . . . . 16
APPENDIX (II): FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 24
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 a Hungarian citizen, born in 1971 and resident
in Halaszetelek (Hungary). He was represented before the Commission
by Mr. T. Schreiner, a lawyer practising in Eisenstadt.
3. The application is directed against Austria. The respondent
Government were represented by their Agent, Mr. F. Cede, Ambassador,
Head of the International Law Department at the Federal Ministry of
Foreign Affairs.
4. The case concerns the applicant's complaints about the failure
of the Court of Appeal to pronounce publicly its decisions taken in the
proceedings on his compensation claim for detention on remand. The
applicant invokes Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 24 August 1992 and registered
on 9 September 1992.
6. On 29 June 1994 the Commission (First Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicant's complaint under Article 6 para. 1 of the Convention
relating to the lack of a public pronouncement by the Court of Appeal
of its decisions on the applicant's application for compensation. It
declared the remainder of the application inadmissible.
7. The Government's observations were submitted on 11 October 1994.
The applicant replied on 9 December 1994.
8. On 23 October 1995 the Commission declared the applicant's
remaining complaints admissible.
9. The text of the Commission's decision on admissibility of
23 October 1995 was sent to the parties on 6 November 1995 and they
were invited to submit such further information or observations on the
merits as they wished. Neither the Government nor the applicant made
any further observations.
10. 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. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. 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:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. SCHERMERS
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
12. The text of this Report was adopted on 3 September 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. 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.
14. The Commission's decisions on the admissibility of the
application are annexed hereto as Appendices I and II.
15. 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
16. 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.
17. On 25 February 1991 the applicant was arrested upon his entry
into Austria at the Austro-Hungarian border.
18. 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.
19. On 4 April 1991 the applicant was heard again by the
investigating judge.
20. 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.
21. On 15 April 1991 the applicant requested that an ex officio
defence counsel be appointed and waived his right to a hearing in
regard 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 that samples
of the applicant's handwriting be taken.
22. 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.
23. On the same day the applicant requested compensation for his
detention.
24. On 8 May 1991 the Judges' Chamber (Ratskammer) at the Wiener
Neustadt Regional Court dismissed the applicant's claim for
compensation under Section 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.
25. On 17 May 1991 the applicant again requested that compensation
be granted pursuant to Section 2 para. 1 (b) of the Criminal
Proceedings Compensation Act.
26. 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 Section 2 para. 1 (a) of the
Criminal Proceedings Compensation Act in this respect.
27. 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.
28. On the same day, the Court of Appeal, in a separate decision,
dismissed the applicant's claim for compensation for unlawful detention
under Section 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
a. Compensation for pecuniary damage resulting from detention on
remand
29. 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 Sections 2 and 3. Section 2 para. 1 (a) concerns the case of
unlawful detention on remand. Section 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.
30. Section 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 Section 2
para. 1 (b) and Section 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 person and the Prosecutor's Office have a right
to appeal to the superior court which can take, if necessary, further
evidence. According to Section 6 para. 4 a decision on a compensation
claim under Section 2 para. 1 must be served on the person concerned
but is not to be made public.
31. If the said courts find that the conditions under Sections 2 and
3 are met, the person concerned must file a request with the Department
of Finance (Finanzprokuratur) for acknowledgment of his claim.
32. If there is no decision upon his request within six months or if
his claim is partly or fully refused, the person concerned can
institute civil court proceedings against the Republic of Austria
(Sections 7 and 8). The final decision in the proceedings under the
Compensation Act is binding on the civil courts, whose task it is to
assess the damage the person concerned has sustained on account of his
having been kept in detention.
33. 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 (Section 32
para. 1 and Section 35 para. 2 of the Code of Criminal Procedure).
b. Inspection of files under Section 82 of the Code of Criminal
Procedure
34. According to Section 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.
c. Access by the public to decisions of the highest courts in
Austria
35. It is the practice of the Constitutional Court
(Verfassungsgerichtshof) and of the Administrative Court
(Verwaltungsgerichtshof) to provide everybody upon simple request
addressed to the Court's registry with decisions given by these courts.
In addition they publish a selection of their decisions on an annual
basis. Following an amendment of the Supreme Court Act in 1991 also
the judgments of the Supreme Court (Oberster Gerichtshof) are available
to the general public upon request. The Supreme Court also publishes
a selection of its judgments on an annual basis.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
36. The Commission has declared admissible the applicant's complaint
under Article 6 para. 1 (Art. 6-1) of the Convention that in the
proceedings on his compensation claim for detention on remand the
decisions of the Court of Appeal were not pronounced publicly.
B. Points at issue
37. Accordingly, the issue to be determined is whether there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. Article 6 (Art. 6) of the Convention
a. Applicability of Article 6 (Art. 6)
38. Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, 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 but the press and public may be
excluded from all or part of the trial in the interest of morals,
public order or national security in a democratic society, where
the interests of juveniles or the protection of the private life
of the parties so require, or to the extent strictly necessary
in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice."
39. The applicant submits that a claim for compensation under Section
2 para. 1 (a) and (b) of the Criminal Proceedings Compensation Act must
be considered a civil right within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. The decision of a criminal court on the
well-foundedness of such a claim is a decisive step in the proceedings
for obtaining compensation since civil courts are bound by such a
decision of a criminal court.
40. 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 B. 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 said Act, finding that the claim is not
comparable to claims under the Law of Damages, as it does not require
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 that the
compensation claim is well-founded in principle, 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, an 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.
41. The Commission recalls that Article 6 para. 1 (Art. 6-1) extends
to disputes (contestations) over a "right" which can be said, at least
on arguable grounds, to be recognised under domestic law. The dispute
must be genuine and serious; it may relate not only to the actual
existence of a right but also to its scope and the manner of its
exercise; and, finally, the result of the proceedings must be directly
decisive for the right in question, mere tenuous connections or remote
consequences not being sufficient to bring Article 6 para. 1 (Art. 6-1)
into play (see Eur. Court HR, Zander v. Sweden judgment of
25 November 1993, Series A no. 279-B, p. 38, para. 22; Fayed v. the
United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp.
45-46, para. 56; Masson and Van Zon v. Netherlands judgment of
27 October 1995, Series A no. 327-A, p. 17, para. 44).
42. As regards the question whether a right is of a "civil"
character, the Commission recalls that the concept of "civil rights and
obligations" is not to be interpreted solely by reference to the
respondent State's domestic law and that Article 6 para. 1 (Art. 6-1)
applies irrespective of the status of the parties, as of the character
of the legislation which governs how the dispute is to be determined
and the character of the authority which is invested with jurisdiction
in the matter (Eur. Court HR, Baraona v. Portugal judgment of
8 July 1987, Series A no. 122, p. 17-18, para. 42). For a right to be
a civil right it is sufficient that the action is pecuniary in nature
and is founded on an alleged infringement of rights which are likewise
pecuniary rights (Eur. Court HR, Éditions Périscope v. France judgment
of 26 March 1992, Series A no. 234-B, p. 66, para. 40).
43. In the present case, there was a dispute over the applicant's
right to compensation for detention on remand. Under the Criminal
Proceedings Compensation Act the applicant had a right to compensation
if the conditions laid down therein had been met. The applicant
claimed that he was entitled to compensation under the relevant
provisions of Austrian law. The competent criminal courts, however,
found that the requirements laid down in the Criminal Proceedings
Compensation Act for such a claim were not met. Moreover, the
Commission notes that according to Section 6 of the Criminal
Proceedings Compensation Act, the decision taken by the criminal courts
in the proceedings at issue is binding. Irrespective of the necessity
of further procedural steps, their outcome was, therefore, directly
decisive for the applicant's right to compensation.
44. Further, the compensation claim asserted by the applicant, in
accordance with Section 1 of the Criminal Proceedings Compensation Act,
concerned financial compensation for pecuniary damage resulting from
detention on remand. Therefore, the right at issue was a "civil right"
within the meaning of Article 6 (Art. 6) of the Convention,
notwithstanding the origin of the dispute and the fact that the
criminal courts had jurisdiction (see mutatis mutandis, Éditions
Périscope v. France judgment, loc. cit.).
45. In the Commission's view the present case must be distinguished
from the Masson and Van Zon case. In that case the Court had found
that a compensation claim for detention on remand under the relevant
provisions of the Dutch Code of Criminal Procedure did not constitute
a right recognised by domestic law as the granting of such compensation
was left essentially to the discretion of the courts (Eur. Court HR,
Masson and Van Zon v. the Netherlands judgment, loc. cit. p. 19,
para. 52). In the present case, however, the applicant had a right to
compensation for detention on remand under the Criminal Proceedings
Compensation Act, provided the conditions laid down therein were met.
46. For these reasons, the Commission finds that Article 6 para. 1
(Art. 6-1) of the Convention is applicable to the proceedings at issue.
b. Compliance with Article 6 para. 1 (Art. 6-1)
aa. The Austrian reservation to Article 6 (Art. 6)
47. In the applicant's view, the Commission is not prevented by the
Austrian reservation to Article 6 (Art. 6) of the Convention from
examining his complaint. He submits that the Act of 18 August 1918 on
Compensation for Detention Pending Investigation may have regulated
issues similar to those of the Criminal Proceedings Compensation Act.
However, this in itself is not sufficient to remove the matter of
compensation for detention as a whole from the application of Article 6
(Art. 6) of the Convention.
48. The Government consider that the applicant's complaint regarding
the lack of the 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 Act."
49. 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 a
claim for compensation was in force at the time the reservation was
made. Although the Criminal Proceedings Compensation Act dates from
1969, the previous Act of 18 August 1918 on Compensation for Detention
Pending Investigation similarly provided in Section 3 para. 1 that the
State's obligation to pay compensation should be determined by a
decision which should not be made public but should 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.
50. Article 90 of the Federal Constitution provides:
"Hearings in civil and criminal cases before the trial court
shall be oral and public. Exceptions may be prescribed by law."
51. Article 64 (Art. 64) of the Convention reads as follows:
"1. Any State may, when signing this Convention or when
depositing its instrument of ratification, make a reservation in
respect of any particular provision of the Convention to the
extent that any law then in force in its territory is not in
conformity with the provision. Reservations of a general
character shall not be permitted under this Article.
2. Any reservation made under this Article shall contain a
brief statement of the law concerned."
52. The Commission recalls that the European Court of Human Rights
has considered the question of the compatibility of declarations and
reservations with Article 64 (Art. 64) of the Convention on several
occasions (see, for example, Eur. Court HR, Belilos v. Switzerland
judgment of 29 April 1988, Series A no. 132; Weber judgment of 22 May
1990, Series A no. 177; Chorherr v. Austria judgment of 25 August 1993,
Series A no. 266-B; Gradinger v. Austria judgment of 23 October 1995,
para. 51, to be published in Series A no. 328-C). The Court has held
that Article 64 para. 1 (Art. 64-1) of the Convention requires
"precision and clarity" and that the requirement set forth in
Article 64 para. 2 (Art. 64-2) that a reservation shall contain a brief
statement of the law concerned is not a "purely formal requirement but
a condition of substance" which "constitutes an evidential factor and
contributes to legal certainty" (Belilos v. Switzerland judgment,
paras. 55 and 59).
53. In the case of Stallinger and Kuso the Commission, when examining
the validity of the Austrian reservation under Article 64 (Art. 64) of
the Convention, has found as follows:
"In this respect the Commission notes that the reservation at
issue does not contain a "brief statement" of the law which is
said not to conform to Article 6 (Art. 6) of the Convention. From
the wording of the reservation it might be inferred that Austria
intended to exclude from the scope of Article 6 (Art. 6) all
proceedings in civil and criminal matters before ordinary courts
insofar as particular laws allowed for non-public hearings.
However, a reservation which merely refers to a permissive, non
exhaustive, provision of the Constitution and which does not
refer to, or mention, those specific provisions of the Austrian
legal order which exclude public hearings, does not "afford to
a sufficient degree 'a guarantee ... that [it] does not go beyond
the provision expressly excluded' by Austria" (see Gradinger
judgment, para. 51, Chorherr judgment, para. 20). Accordingly,
the reservation does not satisfy the requirements of Article 64
para. 2 (Art. 64-2) of the Convention. In such circumstances the
Commission finds that there is no need also to examine whether
the other requirements of Article 64 (Art. 64) were complied with
(Stallinger and Kuso v. Austria, Comm. Report 7.12.95,
para. 61)."
54. The Commission therefore considers that the Austrian reservation
cannot prevent it from examining the applicant's complaint.
bb. The absence of a public pronouncement of the Court of Appeal's
decisions
55. The applicant complains that, contrary to what is required by
Article 6 para. 1 (Art. 6-1) of the Convention, the Court of Appeal did
not pronounce publicly its decisions taken in the compensation
proceedings. He submits that he could have requested neither a public
hearing nor the public pronouncement of the decisions taken, since this
was not provided for in the relevant law. The possibility that third
parties inspect the file under Section 82 of the Code of Criminal
Procedure is no substitute for the public pronouncement of decisions,
since this right is too restrictive as it requires that these persons
must demonstrate a legitimate interest in the outcome of the
proceedings at issue.
56. 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.
Referring to the Sutter judgment of the Court (Eur. Court HR, Sutter
v. Switzerland judgment of 22 February 1984, Series A no. 74), the
Government also 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.
57. The Commission recalls that the public character of proceedings
before judicial bodies referred to in Article 6 para. 1 (Art. 6-1)
protects litigants against the administration of justice in secret with
no public scrutiny; it is also one of the means whereby confidence in
the courts, superior and inferior, can be maintained. By rendering the
administration of justice visible, publicity contributes to the
achievement of the aim of Article 6 para. 1, (Art. 6-1) namely a fair
trial, the guarantee of which is one of the fundamental principles of
any democratic society, within the meaning of the Convention (Eur.
Court HR, Pretto and Others v. Italy judgment of 8 December 1983,
Series A no. 71, p. 11, para. 21).
58. The Commission observes that the European Court of Human Rights
has dealt on various occasions with the requirement of public
pronouncement of judgments under Article 6 para. 1 (Art. 6-1) of the
Convention. The Court confirmed that for the purpose of Article 6
para. 1, (Art. 6-1) the qualification of a judicial act under domestic
law as a "decision" (Beschluß) as opposed to a "judgment" (Urteil) was
not decisive for the operation of the requirement of public
pronouncement of the given act (see Eur. Court HR, Axen v. Germany
judgment of 8 December 1983, Series A no. 72, p. 13, para. 29). The
Court also held that the form of publicity to be given to a judgment
under the domestic law of the respondent State must be assessed in the
light of the special features of the proceedings in question and by
reference to the object and purpose of Article 6 para. 1 (Art. 6-1)
(Eur. Court HR, Axen v. Germany judgment, loc. cit., p. 14, para. 31;
Pretto and Others v. Italy judgment, loc. cit., p. 12, para. 26).
Thus, in the Axen case the Court found that the public pronouncement
of a judgment of a court of highest instance was not necessary if the
judgments by the lower courts had been pronounced publicly (Eur. Court
HR, Axen v. Germany judgment, loc. cit., p. 14, para. 32). In the
Pretto case the Court found that, having regard to the limited
jurisdiction of the Court of Cassation, the fact that this court
deposited its judgment with the Court's registry, thus making the full
text of the judgment available to everyone, was a sufficient means to
ensure publicity of judgments under Article 6 para. 1 (Art. 6-1) of the
Convention (Eur. Court HR, Pretto and Others v. Italy judgment, loc.
cit., p. 13, para. 27). In the Sutter case the Court found that a
public pronouncement of a judgment given by the Military Court of
Cassation was not necessary as the access of the public to the judgment
was secured by other means, that is by asking for a copy of the
judgment from the Court's registry and by its subsequent publication
in an official collection of judgments (see Eur Court HR, Sutter v.
Switzerland judgment, loc. cit., p. 14, para. 33).
59. The Commission notes that two distinct proceedings on claims by
the present applicant for compensation for detention on remand took
place. The first set of proceedings concerned his compensation claim
under Section 2 para. 1 (b) of the Criminal Proceedings Compensation
Act, on the ground that the suspicion against him had been dissipated.
In this set of proceedings the Judges' Chamber at the Wiener Neustadt
Regional Court dismissed the applicant's claim and the Vienna Court of
Appeal dismissed his appeal on 9 January 1992. The second set of
proceedings concerned the compensation claim under Section 2
para. 1 (a) of the Criminal Proceedings Compensation Act, on the ground
that his detention on remand had been unlawful. In this set of
proceedings the Court of Appeal, also on 9 January 1992, dismissed the
applicant's claim and the applicant did not appeal to the Supreme
Court. The Commission is therefore confronted with two distinct
decisions given by the Court of Appeal.
60. In the Government's view, the applicant should have asked for an
oral hearing, including the public pronouncement of the decisions
taken. His failure to do so must be deemed a waiver of this right.
However, the Commission shares the applicant's opinion that, since the
relevant provisions did not provide for a public hearing or the public
pronouncement of decisions taken in proceedings on compensation for
detention on remand, he could not be deemed to have waived such a
right. In this respect the Commission recalls that the question of
whether or not an applicant has requested a public hearing becomes
irrelevant for examining compliance with Article 6 para. 1 (Art. 6-1)
of the Convention when the respective domestic law excludes the holding
of public hearings (see Eur. Court HR, Diennet v. France judgment of
26 September 1995, para. 34, to be published in Series A no. 325-A).
61. Furthermore, with regard to the applicant's compensation claim
under Section 2 para. 1 (a) of the Criminal Proceedings Compensation
Act the Government argues that the applicant should have filed an
appeal with the Supreme Court. In the Commission's view, however, the
applicant could not be expected to have filed an appeal with the
Supreme Court against the dismissal of his compensation claim under
Section 2 para. 1 (a) of the Criminal Proceedings Compensation Act.
The Government has not shown that an appeal, solely based on the
argument that the decision of the Court of Appeal had not been
pronounced publicly, would have had any prospect of success in view of
the fact that this was not provided for in the procedural rules to be
applied by the Court of Appeal. The access which interested members
of the public might have had to a decision given by the Supreme Court
on an appeal by the applicant (see para. 35 above) cannot, in the
circumstances of the present case, be considered as a substitute for
a sufficient publicity of the decision of the Court of Appeal at issue.
62. In the Government's view the public pronouncement of the
decisions taken by the Court of Appeal was not necessary in the instant
case as 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, was only necessary when a court is
concerned with establishing the facts.
63. In this respect the Commission recalls that, provided a public
hearing has been held at first instance, the absence of such a hearing
before a second or third instance court may be justified by the special
features of the proceedings at issue. Thus, leave-to-appeal proceedings
and proceedings involving only questions of law, as opposed to
questions of fact, may comply with the requirements of Article 6,
(Art. 6) although the appellant was not given the opportunity of being
heard in person by the appeal or cassation court (Eur. Court HR, Jan-
Åke Andersson v. Sweden judgment of 29 October 1991, Series A no. 212,
p. 45, para. 27).
64. The Commission observes that in the proceedings on the
applicant's compensation claim under Section 2 para. 1 (b) of the
Criminal Proceedings Compensation Act no public hearing was held before
the Judges' Chamber, nor was its decision pronounced publicly. In the
proceedings on the applicant's compensation claim under Section 2
para. 1 (a) of the Criminal Proceedings Compensation Act the Court of
Appeal, acting as court of first instance, neither held a public
hearing nor pronounced its decision in public. Furthermore, since the
issue of criminal responsibility is quite distinct from the question
of compensation for detention, the compensation proceedings cannot be
conceived as "appeal proceedings" in respect of the underlying criminal
proceedings in the course of which detention on remand had been
ordered. Moreover, the Commission observes that neither in the
criminal proceedings nor in the compensation proceedings was there a
public hearing as required by Article 6 para. 1 (Art. 6-1) of the
Convention.
65. In any event, the question of whether Article 6 para. 1
(Art. 6-1) of the Convention requires, in a given set of proceedings,
a court to hold a public hearing must be separated from the question
whether and in which form a decision so taken has to be made public.
The Commission finds that although a court may, in compliance with
Article 6 para. 1, (Art. 6-1) in some cases take a decision without
previously having held a public hearing, this does not mean that the
court is dispensed from giving its decision the publicity required by
Article 6 para. 1 (Art. 6-1) of the Convention.
66. The Government argue that the requirement of public pronouncement
of the decision was met because third parties could be given access to
the files and allowed to make copies of the judgments contained
therein. In this respect the Commission observes that in Austria only
with regard to judgments of the Supreme Court, the Administrative Court
and the Constitutional Court does the possibility exist for interested
members of the public to obtain the full text of judgments from the
court's registry, together with a select publication of judgments. No
such possibility exists with regard to judgments and decisions of the
Courts of Appeal or of courts of first instance. To these courts the
provision of Section 82 of the Code of Criminal Procedure applies (see
para. 34 above). Having regard to the contents of this provision, the
Commission considers that the mere possibility of being granted, upon
request, access to the judgments and the file cannot be considered a
substitute for public pronouncement of the decisions.
67. The Commission therefore finds that the requirement of the public
pronouncement of judgments under Article 6 para. 1 (Art. 6-1) of the
Convention has not been met in the present case, as neither of the
Court of Appeal's decisions had been pronounced publicly nor was
publicity of the decisions otherwise sufficiently secured.
CONCLUSION
68. The Commission concludes, by 27 votes to 2, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
DISSENTING OPINION OF MRS. G.H. THUNE AND MR. H.G. SCHERMERS
Unfortunately we have been unable to find that there had been a
violation of Article 6 para. 1 in the present case.
We agree with the majority that Article 6 applies to the
proceedings at issue (para. 42) and that the Commission is not
prevented by the Austrian reservation from examining the applicant's
complaints (para. 50). We do not, however, consider that Article 6
para. 1 is to be interpreted in such a way s to require a particular
form of public pronouncement of the decisions taken on the applicant's
compensation claim.
While access by the general public to judgments given by a court
by means of inspection of the case file upon request (see para. 34)
might not be sufficient to comply with Article 6 para. 1 in normal
civil cases, we find that it can be considered acceptable in the
circumstances of the present case in order to provide the necessary
public scrutiny which is the main purpose of the requirement as to
publicity under Article 6 para. 1.
We recall in this context the Court's judgment in the Schuler-
Zgraggen case, where it suggested that the nature of the issue involved
may be considered decisive with regard to the publicity requirement
under Article 6 para. 1 (see Eur. Court HR, Schuler-Zgraggen v.
Switzerland judgment of 24 June 1993, Series A no. 263, p. 20,
para. 58, subpara. 2 and 3). The Court considered that the dispute in
the said case did not raise issues of particular public importance.
On the contrary, it involved matters of a highly personal nature which
better could be dealt with without the public being present during an
oral hearing. We have found these considerations to be valid also in
the present case, and find support in the concurring opinion of Judge
Martens to the Court's judgment in the Masson and Van Zon case (para.
5 of the Concurring Opinion) which also concerned proceedings relating
to a claim for compensation after acquittal (Eur. Court HR, Masson and
Van Zon v. the Netherlands judgment of 28 September 1995, Series A
no. 327-A). Since Judge Martens was the only member of the Court who
considered Article 6 para. 1 to be applicable, he accordingly was also
the only Judge to take a stand on whether or not the requirements of
Article 6 para. 1 had been complied with.
We find that the requirement of public pronouncement of judgments
under Article 6 para. 1 had been met in the present case as publicity
of the decisions given had sufficiently been secured by the possibility
of inspection of the file under Section 82 of the Austrian Code of
Criminal Procedure. Therefore, we find conclude that there had been
no violation of Article 6 para. 1.
Full & Egal Universal Law Academy