EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 21835/93
Johannes Werner
against
Austria
REPORT OF THE COMMISSION
(adopted on 3 September 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-31) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 17-24). . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law
(paras. 25-31). . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 32-74) . . . . . . . . . . . . . . . . . . . . .7
A. Complaints declared admissible
(para. 32). . . . . . . . . . . . . . . . . . . . .7
B. Points at issue
(para. 33). . . . . . . . . . . . . . . . . . . . .7
C. Article 6 of the Convention
(paras. 34-74). . . . . . . . . . . . . . . . . . .7
a. Applicability of Article 6
(paras. 34-42) . . . . . . . . . . . . . . . .7
b. The absence of a public hearing before the
Judges' Chamber and the Court of Appeal and
the absence of a public pronouncement of the
decisions given
(paras. 43-68) . . . . . . . . . . . . . . . .9
aa. The Austrian reservation to Article 6
(paras. 43-50) . . . . . . . . . . . . . . . .9
bb. The absence of a public hearing
(paras. 51-58) . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 59). . . . . . . . . . . . . . . . . . . . 12
cc. The absence of a public pronouncement of the
courts' decisions
(paras. 60-67) . . . . . . . . . . . . . . . 13
CONCLUSION
(para. 68). . . . . . . . . . . . . . . . . . . . 14
d. Fair hearing before a tribunal
(paras. 69-73) . . . . . . . . . . . . . . . 14
CONCLUSION
(para. 74). . . . . . . . . . . . . . . . . . . . 15
D. Recapitulation
(paras. 75-77). . . . . . . . . . . . . . . . . . 16
CONCURRING OPINION OF MR. M. PELLONPÄÄ. . . . . . . . . . . 17
DISSENTING OPINION OF MRS. G.H. THUNE
AND MR. H.G. SCHERMERS . . . . . . . . . . . . . . . . . . 18
DISSENTING OPINION OF MR. I. CABRAL BARRETO
JOINED BY MM. S. TRECHSEL AND I. BÉKÉS . . . . . . . . . . 19
DISSENTING OPINION OF MR. K. HERNDL
JOINED BY MR. F. MARTINEZ . . . . . . . . . . . . . . . . 20
APPENDIX (I): PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 21
APPENDIX (II): FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 27
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 1963 and resident
in Vienna. He was represented before the Commission by Mr. T. Prader,
a lawyer practising in Vienna.
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 that the proceedings
regarding his compensation claim for detention on remand were unfair
and that in these proceedings the Austrian courts neither held a public
hearing nor pronounced their decisions publicly. The applicant invokes
Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced by the applicant and Mr. and Mrs.
Hauser on 16 March 1993 and was registered on 12 May 1993.
6. By letter of 7 March 1994, the lawyer of the applicant and Mr.
and Mrs. Hauser informed the Commission that Mr. and Mrs. Hauser wished
to withdraw their application.
7. On 2 September 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 complaints under Article 6 para. 1 of the
Convention relating to the lack of a public hearing and of a public
pronouncement of the decisions and about a breach of the principle of
equality of arms in the proceedings before the Judges' Chamber of the
Vienna Regional Court and the Vienna Court of Appeal. It declared the
remainder of the application inadmissible.
8. The Government's observations were submitted on 18 November 1994.
The applicant replied on 22 December 1994.
9. On 23 October 1995 the Commission declared the applicant's
remaining complaints admissible.
10. The text of the Commission's decision on admissibility of 23
October 1995 was sent to the parties on 3 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.
11. 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
12. 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
13. 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.
14. 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.
15. The Commission's decisions on the admissibility of the
application are annexed hereto as Appendices I and II.
16. 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
17. On 15 May 1991 M.H. and H.H. were arrested on the suspicion of
having fraudulently used the credit card of a third person for
purchases in several shops in Vienna and were taken into detention on
remand. On 3 July 1991 the applicant, suspected of having forged the
signature on the credit card and on the purchase receipts, was also
taken into detention on remand. On 8 July 1991 M.H. and H.H., and on
19 July 1991 the applicant, were released from detention.
18. On 24 February 1992, by decision of the Investigating Judge of
the Vienna Regional Court (Landesgericht), criminal proceedings were
discontinued against M.H., H.H. and the applicant, as a graphological
expert had found that the applicant was not likely to be the author of
the signatures on the purchase receipts and as the Public Prosecutor's
witnesses did not have a sufficient recollection.
19. Meanwhile, on 4 February 1992 the Public Prosecutor's Office
(Staatsanwaltschaft) had requested the Regional Court to decide that
M.H., H.H. and the applicant were not entitled to compensation for
detention on remand, pursuant to Section 2 para. 1 (b) of the Criminal
Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz),
as the suspicion against M.H., H.H. and the applicant had not been
dissipated.
20. On 21 April 1992 the Investigating Judge heard M.H., H.H. and the
applicant and informed them about the Public Prosecutor's Office's
request of 4 February 1992. They filed a claim for compensation for
detention on remand.
21. On 3 June 1992 the Judges' Chamber (Ratskammer) of the Vienna
Regional Court, sitting in camera, dismissed the claim for compensation
under Section 2 para. 1 (b) of the Criminal Proceedings Compensation
Act. No representative of the Public Prosecutor's Office was present
at the deliberations. The Judges' Chamber found that there still
remained a suspicion against M.H., H.H. and the applicant.
22. On 15 June 1992 M.H., H.H. and the applicant appealed against the
Judges' Chamber's decision. In their appeal they requested the taking
of further evidence, in particular the hearing of witnesses.
23. On 2 September 1992 the Senior Public Prosecutor's Office
(Oberstaatsanwaltschaft) submitted written observations on the appeal.
It found that the appeal would have to be dismissed. The Senior Public
Prosecutor's Office also submitted that it was not necessary to take
further evidence as the statements of the witnesses requested could not
lead to the dissipation of the suspicion. These observations were not
served on M.H., H.H. and the applicant.
24. On 29 October 1992 the Vienna Court of Appeal (Oberlandes-
gericht), sitting in camera, dismissed the appeal. No representative
of the Senior Public Prosecutor's Office was present at the
deliberations.
The Court of Appeal considered that the criminal proceedings had
been discontinued as no sufficient evidence could be produced, but
that, nevertheless, a suspicion persisted. Such a discontinuation did
not suffice to give rise to a claim for compensation under the relevant
provision of the Compensation Act, as, according to the constant
jurisprudence of the Austrian courts, it had to be established that the
person concerned was not punishable. However, in the present case,
M.H., H.H. and the applicant had not refuted the suspicion existing
against them, nor was this suspicion otherwise dissipated.
The Court of Appeal further considered that the requests for the
taking of further evidence and for the questioning of the witnesses on
which the Public Prosecutor had based his information could not have
helped to elucidate the facts. The Court noted that the criminal
proceedings had been discontinued due to the insufficient recollection
of these witnesses. Their statements could, therefore, not have proved
the innocence of M.H., H.H. and the applicant.
B. Relevant domestic law
a. Compensation regarding pecuniary damages resulting from detention
on remand
25. 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 (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.
26. 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.
27. 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.
28. 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.
29. 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
30. 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
31. 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
32. The Commission has declared admissible the applicant's complaints
under Article 6 para. 1 (Art. 6-1) of the Convention concerning the
lack of a public hearing in the compensation proceedings before the
Judges' Chamber of the Vienna Regional Court and the Vienna Court of
Appeal, the failure of these courts to pronounce publicly their
decisions and an alleged infringement of the principle of equality of
arms in the proceedings before the Court of Appeal.
B. Points at issue
33. The issues to be determined are:
- whether there has been a violation of the applicant's right under
Article 6 para. 1 (Art. 6-1) of the Convention to a public hearing in
the proceedings regarding his compensation claim for detention on
remand;
- whether there has been a violation of the applicant's right under
Article 6 para. 1 (Art. 6-1) of the Convention to a public
pronouncement of the decisions taken by the Austrian courts in the
proceedings regarding his compensation claim for detention on remand;
- whether there has been a violation of the applicant's right to
a fair hearing by a tribunal within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention in the proceedings before the Court of
Appeal.
C. Article 6 (Art. 6) of the Convention
a. Applicability of Article 6 (Art. 6)
34. Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:
"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."
35. The applicant submits that the proceedings at issue concerned the
determination of his civil rights. He wished to assert a claim for
pecuniary damages resulting from his detention on remand and there was
a serious dispute as regards his right to compensation. Further, the
applicant submits that Article 6 (Art. 6) of the Convention applies to
the area of public-liability law. He argues that the proceedings under
the Austrian Criminal Proceedings Compensation Act, though the claim
does not in all cases depend on a violation of the law, follow the same
procedural rules as public-liability suits, once the claim has been
accepted in principle by the criminal courts. As the later stage of the
proceedings is undoubtedly civil in nature, it would be
incomprehensible to exclude the first but indispensable stage before
the criminal courts from the applicability of Article 6 (Art. 6).
36. 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.
37. 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. the Netherlands judgment of 27 October 1995,
Series A no. 327-A, p. 17, para. 44).
38. 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).
39. 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, because the original suspicion against him
had been dissipated. 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.
40. Further, the compensation claim asserted by the applicant, in
accordance with Section 1 of the Criminal Proceedings Compensation Act,
concerned financial compensation for pecuniary damages 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.).
41. 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 an
enforceable right to compensation for detention on remand under the
Criminal Proceedings Compensation Act, provided the conditions laid
down therein were met.
42. 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. The absence of a public hearing before the Judges' Chamber and
the Court of Appeal and the absence of a public pronouncement of the
decisions given
aa. The Austrian reservation to Article 6 (Art. 6)
43. The applicant complains that in the proceedings regarding his
compensation claim for detention on remand neither the Judges' Chamber
of the Vienna Regional Court nor the Vienna Court of Appeal held a
public hearing. In addition these courts have failed to pronounce
their decisions publicly. In his view, the Commission is not prevented
from examining these issues by the Austrian reservation to Article 6
(Art. 6) of the Convention.
44. The Government consider that the applicant's complaint regarding
the lack of a public hearing, including 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."
45. 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.
46. 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."
47. 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."
48. 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).
49. 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)."
50. The Commission therefore considers that the Austrian reservation
cannot prevent it from examining the complaints concerning the lack of
a public hearing and public pronouncement of the decisions given.
bb. The absence of a public hearing
51. The applicant submits that in the proceedings regarding his
compensation claim for detention on remand the Austrian courts should
have held public hearings. In proceedings under the Criminal
Proceedings Compensation Act not merely legal questions have to be
resolved, in which case a court may exceptionally decide without a
public hearing, but facts also have to be established. Moreover, no
public hearing was held in the criminal proceedings because they had
been discontinued. His failure to request a public hearing cannot be
considered as a waiver of this right because the relevant provisions
do not provide for an oral hearing.
52. The Government submit that according to the Convention organs'
case-law a public hearing is only necessary when a court is concerned
with establishing the facts, which is primarily the task of a first
instance court, while no hearing is necessary before a second instance
court deciding merely on issues of law. For the purpose of the
compensation claim the underlying criminal proceedings must be
considered as first instance proceedings, while the compensation
proceedings themselves must be conceived as second instance proceedings
in which only questions of law are determined. Moreover, since the
applicant in the compensation proceedings did not explicitly ask for
a public hearing he must be deemed to have waived his right to such a
hearing.
53. The Commission observes that the Judges' Chamber and the Court
of Appeal took their decisions in camera, in accordance with the
relevant domestic provisions of procedural law. It must therefore
examine whether the lack of a public hearing before these courts was
compatible with Article 6 para. 1 (Art. 6-1) of the Convention in the
present case.
54. The applicant was in principle entitled to a public hearing on
his compensation claim, as none of the exceptions laid down in the
second sentence of Article 6 para. 1 (Art. 6-1) applied (cf. Eur. Court
HR, Håkansson and Sturesson v. Sweden judgment of 21 February 1990,
Series A no. 171, p. 20, para. 64).
55. The Commission observes that the applicant did not expressly
request a public hearing on his compensation claim. In the
Government's view he must therefore be deemed to have waived his right
to such a hearing. However, the Commission shares the applicant's
opinion that, since the relevant provisions did not provide for a
public hearing, he could not be deemed to have waived this 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).
Moreover, although the applicant did not expressly request a public
hearing in the proceedings before the Court of Appeal, he,
nevertheless, asked to be heard and to be confronted with witnesses.
56. The Government also argue that a public hearing was not necessary
as for the purpose of the compensation claim the underlying criminal
proceedings must be considered as first instance proceedings, while the
compensation proceedings themselves must be conceived as second
instance proceedings in which only questions of law are determined.
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).
57. The Commission considers, however, that the issue of criminal
responsibility is quite distinct from the question of compensation for
detention, so that 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.
58. The Commission concludes that there were no exceptional
circumstances which could justify the absence of a public hearing. The
failure of the Austrian courts to hold such hearings in the applicants'
cases therefore amounted to a violation of Article 6 para. 1 (Art. 6-1)
of the Convention.
CONCLUSION
59. The Commission concludes, by 25 votes to 4, that there has been
a violation of the applicant's right under Article 6 para. 1 (Art. 6-1)
of the Convention to a public hearing in the proceedings regarding his
compensation claim for detention on remand.
cc. The absence of a public pronouncement of the courts' decisions
60. The applicant also complains that, contrary to what is required
by Article 6 para. 1 (Art. 6-1) of the Convention, the Judges' Chamber
and the Court of Appeal did not pronounce publicly their decisions
taken in the compensation proceedings.
61. The Government, referring to the Sutter judgment of the Court
(Eur. Court HR, Sutter v. Switzerland judgment of 22 February 1984,
Series A no. 74), find 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 prove a legitimate
interest. Moreover, the lack of a public pronouncement of decisions
on compensation claims under the Criminal Proceedings Compensation Act
would be justified since such a decision could contain the statement
that a suspicion against a person continued to exist, which, in the
light of the presumption of innocence, is inappropriate.
62. 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).
63. 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 "decision" (Beschluß) as opposed to "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).
64. The Commission observes that in Austria there is a possibility
to obtain the full text of judgments from the court registry only with
regard to judgments of the Supreme Court, the Administrative Court and
the Constitutional Court. No such possibility exists with regard to
judgments and decisions of the Courts of Appeal or of courts of first
instance.
65. 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. However, the Commission, having regard to the provision of
Section 82 of the Code of Criminal Procedure, which regulates this
right, finds 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.
66. The Government also argue that the lack of a public pronouncement
of decisions on compensation claims under the Criminal Proceedings
Compensation Act is justified since such decisions could contain the
statement that a suspicion against a person continued to exist, which,
in the light of the presumption of innocence, is inappropriate.
However, the Commission cannot see that it is necessary in proceedings
under the Criminal Proceedings Compensation Act to make statements
which would infringe the presumption of innocence as guaranteed by
Article 6 para. 2 (Art. 6-2) of the Convention.
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 none of the courts'
decisions had been pronounced publicly nor had publicity of the
judgments rendered otherwise been sufficiently secured.
CONCLUSION
68. The Commission concludes, by 27 votes to 2, that there has been
a violation of the applicant's right under Article 6 para. 1 (Art. 6-1)
of the Convention to a public pronouncement of the decisions taken by
the Austrian courts in the proceedings regarding his compensation claim
for detention on remand.
d. Fair hearing before a tribunal
69. The applicant submits that in the proceedings before the Court
of Appeal he could not reply to the submissions of the Senior Public
Prosecutor because he was not aware of them. The principle of equality
of arms required that he could see for himself whether the submissions
of the Senior Public Prosecutor did not contain any new arguments and
whether it was necessary for him to reply thereto.
70. The Government submit that this principle has not been infringed
in the proceedings before the Court of Appeal as no representative of
the Senior Public Prosecutor's Office attended the deliberations of the
court. The written observations of the Senior Public Prosecutor were
not served on the applicant. However, it was not necessary to let the
applicant comment on the Senior Public Prosecutor's statement as it
contained no new arguments.
71. The Commission recalls that the requirement of "equality of
arms", in the sense of a fair balance between the parties, applies in
principle to proceedings concerning civil rights and obligations (see
Eur. Court HR, Dombo Beheer B.V. v. the Netherlands judgment of
27 October 1993, Series A no. 274, p. 19, para. 33; Stran Greek
Refineries S.A. and Stratis Andreadis v. Greece judgment of
9 December 1994, Series A no. 301-B, p. 81, para. 46). In the context
of civil proceedings, the concept of a fair trial should be regarded
as including an equal opportunity of each party to have knowledge of
and comment upon the observations made by the other party (see Eur.
Court HR, Ruiz-Mateos v. Spain judgment of 23 June 1993, Series A
no. 262, p. 25, para. 63). In the context of criminal proceedings, the
principle of equality of arms does not depend on further, quantifiable
unfairness flowing from procedural inequality. It is therefore unfair
for the prosecution to make submissions to a court without knowledge
of the defence (Eur. Court HR, Bulut v. Austria judgment of
22 February 1996, para. 49, to be published in Judgments and Decisions
for 1996).
72. In the proceedings before the Court of Appeal the applicant was
not aware of and did not have a possibility to comment on the
observations which the Senior Public Prosecutor's Office, appearing as
the representative of the State as defendant, submitted to the Court
of Appeal.
73. The Commission is not persuaded by the Government's argument that
the Senior Public Prosecutor's submissions did not contain any new
argument. It notes in particular that the Senior Public Prosecutor's
Office in its submissions had for the first time reacted to the
applicant's request for the taking of further evidence. In any event,
it was a matter for the applicant to assess whether the submissions
deserved a reaction (see mutatis mutandis Bulut v. Austria judgment,
loc. cit., para. 49). The Commission therefore finds that in the
proceedings before the Court of Appeal the principle of equality of
arms has not been respected.
CONCLUSION
74. The Commission concludes, by 26 votes to 3, that there has been
a violation of the applicant's right to a fair hearing by a tribunal
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention
in the proceedings before the Court of Appeal.
D. Recapitulation
75. The Commission concludes, by 25 votes to 4, that there has been
a violation of the applicant's right under Article 6 para. 1 (Art. 6-1)
of the Convention to a public hearing in the proceedings regarding his
compensation claim for detention on remand (cf. para. 59).
76. The Commission concludes, by 27 votes to 2, that there has been
a violation of the applicant's right under Article 6 para. 1 (Art. 6-1)
of the Convention to a public pronouncement of the decisions taken by
the Austrian courts in the proceedings regarding his compensation claim
for detention on remand (cf. para. 68).
77. The Commission concludes, by 26 votes to 3, that there has been
a violation of the applicant's right to a fair hearing by a tribunal
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention
in the proceedings before the Court of Appeal (cf. para. 74).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
CONCURRING OPINION OF MR. M. PELLONPÄÄ
I have voted for the finding of a violation on all the three
points at issue. Insofar as the question of "a fair hearing before a
tribunal" is concerned my reasons for this finding, however, differ
from those adopted in paras. 69-73 of the Report.
The opinion of the Commission appears to proceed from the view
that the relevant requirements of Article 6 para. 1 apply in the same
way regardless of whether one is concerned with a "criminal charge" or
with the "determination of civil rights and obligations".
The principle of "equality of arms" is certainly not confined to
criminal proceedings. There may, however, be differences between
"criminal" and "civil" cases as to the concrete application of the
principle. As the Court has stated, "[t]he requirements inherent in
the concept of 'fair hearing' are not necessarily the same in cases
concerning the determination of civil rights and obligations as they
are in cases concerning the determination of a criminal charge" (Dombo
Beheer B.V. v. the Netherlands judgment, loc. cit., p. 19, para. 32).
It is possible, for example, that in a civil case the submission by the
Senior Public Prosecutor to the Court of a statement comparable to the
one at issue in the Bulut case (see paras. 71 and 73 of the present
Report), without the other party being able to comment on it, would not
be sufficient for the finding of a violation of Article 6, although in
a criminal case such a conduct would be regarded as inherently unjust.
It is recalled that in the Bulut case the Procurator General's Office
in its brief note merely stated that the applicant's plea of nullity
should be rejected according to the relevant provisions of the Code of
Criminal Procedure (see Bulut v. Austria judgment, loc. cit.,
para. 14).
However, in the present case, which concerns the determination
of civil rights, the observations by the Senior Public Prosecutor's
Office were much more lengthy and also more substantive than those at
issue in the Bulut case. The principle of equality of arms, in the
sense of a fair balance between the parties, would have required an
opportunity for the applicant to comment thereon. Therefore I concur
with the conclusion that Article 6 para. 1 had been violated also in
this respect.
(Or. English)
DISSENTING OPINION OF MRS. G.H. THUNE AND MR. H.G. SCHERMERS
Unfortunately we have been unable to find any violation of
Article 6 para. 1 as regards the applicant's complaints about the lack
of an oral hearing and public pronouncement of the decisions given.
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).
As regards the applicant's complaint concerning the lack of an
oral hearing, we would point to the approach taken by the Court in the
Schuler-Zgraggen case, where it accepted that Article 6 para. 1 must
be interpreted with some flexibility, having regard to the type of
proceedings one is faced with (see Eur. Court HR, Schuler-Zgraggen v.
Switzerland judgment of 24 June 1993, Series A no. 263, p. 20,
para. 58). The Court considered that the dispute in the said case did
not raise issues of particular public importance, but on the contrary,
involved matters of a highly personal nature which better could be
dealt with by the domestic court without a public hearing during an
oral hearing. We submit that similar considerations can be applied to
the present case.
This approach is supported by the concurring opinion of Judge
Martens to the Court's judgment in the Masson and Van Zon case which
concerned proceedings identical to those in the present case (Eur.
Court HR, Masson and Van Zon v. the Netherlands judgment of
28 September 1995, Series A no. 327-A). As the only member of the
Court who considered Article 6 para. 1 to be applicable, Judge Martens
took the view that Article 6 para. 1 did not require an oral hearing
having regard to the particular nature of the proceedings. This seems
to be a logical and reasonable interpretation of the principles laid
down in the Schuler-Zgraggen case.
As regards the applicant's complaint about the lack of public
pronouncement of the decisions given, we find that, having regard to
the particular nature of these proceedings, public access to judgment
by means of access to the file of the case upon request must be
considered sufficient in order to provide the necessary public scrutiny
which is the main purpose of the publicity requirement under Article
6 para. 1. We here refer to our dissenting opinion in the Report of
the Commission in the case of Szücs v. Austria.
(Or. français)
OPINION DISSIDENTE DE M. I. CABRAL BARRETO
A LAQUELLE DECLARENT SE RALLIER MM. S. TRECHSEL ET I. BÉKÉS
A mon très grand regret, je ne puis partager l'avis de la
majorité de la Commission pour ce qui est de l'équité de la procédure.
La procédure en cause était, comme l'établit le Rapport, par. 37
à 40, une procédure déterminant un droit de caractère civil du
requérant, soit une demande d'indemnisation pour détention provisoire
illégale.
Dans une procédure civile, le droit au contradictoire constitue
un élément de la notion plus large de procès équitable, ce qui
implique, pour une partie, la faculté de prendre connaissance des
observations ou pièces produites par l'autre, ainsi que de les
discuter.
Mais, sous peine de laisser la procédure s'éterniser, il faut
choisir la partie qui aura la "parole", en dernier lieu. Dans la
procédure pénale, le dernier mot appartient à l'accusé. Dans une
procédure civile, ou il y a un demandeur et un défendeur, il me semble
que le dernier mot doit appartenir au défendeur. Et, si une partie a
interjeté appel, ce sera la partie intimée (le défendeur en appel) qui
doit être entendu le dernier.
Le requérant et une autre personne ont interjeté appel devant la
cour d'appel de Vienne contre la décision des juges qui ont refusé la
demande d'indemnisation. Le ministère public a répondu au mémoire du
requérant en sa qualité de représentant du défenseur, l'Etat.
Effectivement, si la procédure civile en cause exige une partie
demanderesse et une partie défenderesse, je considère que, le ministère
public, en tant partie défenderesse, a rempli son rôle en répondant au
demandeur. La représentation au civil de l'Etat par le ministère
public, système qui existe dans certains pays, notamment au Portugal,
peut paraître quelque peu étrange, et d'autres formes sont
envisageables. Mais je ne vois aucune raison de censurer ce système,
dès lors que, après la réponse écrite du ministère public, la cour
d'appel à tranché toute seule l'appel du requérant.
(Or. English)
DISSENTING OPINION OF MR. K. HERNDL
JOINED BY MR.F. MARTINEZ
While I agree with the majority that Article 6 para. 1 of the
Convention is applicable to the proceedings at issue (para. 42) and
that the Commission is not prevented by the Austrian reservation from
examining the complaint concerning the lack of a public hearing and a
public pronouncement of the decisions given (para. 50), I voted against
the finding of a violation of Article 6 para. 1 as regards the lack of
a public hearing.
As stated in para. 29 of the Report no public hearings are
normally conducted before the Judges' Chamber and before the Court of
Appeal in proceedings concerning appeals against decisions of the
Judges' Chamber. The Code of Criminal Procedure neither explicitly
requires a public hearing in such proceedings nor does it explicitly
prohibit such hearings. It may very well be that it is not the usual
practice before Austrian criminal courts to hold hearings on claims
like the one asserted by the applicant or that the parties request such
hearings. However, since the applicant attached such importance to a
public hearing and taking into account that the holding of public
hearings is not explicitly ruled out by the Code of Criminal Procedure,
he would have been well advised to ask for a public hearing. On the
basis of the Austrian law as it stands the Austrian courts might have
considered such a request by the applicant as somewhat unusual, but to
my mind there is nothing to show that it would have stood no chances
of success.
In fact, as the relevant Austrian law is silent on this issue the
applicant could (and should) in any formal request for a public hearing
have invoked Article 6 para. 1 of the Convention (which is part of the
Austrian legal order at the level of the Constitution), either alone
or in conjunction with Article 90 of the Federal Constitution which
unequivocally establishes the principle of public hearings to be held
in civil and criminal cases. A formal request for a public hearing by
the applicant based on such grounds would have resulted in an
appropriate evaluation of this pertinent argument by the Court. The
Court, however, was apparently never confronted with the argument and,
therefore, followed the usual practice of not holding a public hearing
in such a case.
Accordingly, following the constant case-law of the Court on this
matter (see, e.g., Eur. Court HR, Håkansson and Sturesson v. Sweden
judgment of 21 February 1990, Series A no. 171-A, p. 20, para. 67;
Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A,
p. 14, para. 34) I find that the applicant must be deemed to have
waived his right to a public hearing and that accordingly there was no
violation of his right under Article 6 para. 1 of the Convention to
such a hearing.
Full & Egal Universal Law Academy