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, HÃ¥kansson 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-

Ã…ke 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, HÃ¥kansson 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.