Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20365/92

Ismail Alkin

against

Austria

REPORT OF THE COMMISSION

(adopted on 28 June 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-34) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-30). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 31-34). . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 35-52) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 35). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 36). . . . . . . . . . . . . . . . . . . . .6

C. Article 6 para. 1 of the Convention

(paras. 37-51). . . . . . . . . . . . . . . . . . .6

1. The applicability of Article 6 para.1

of the Convention

(paras. 38-44) . . . . . . . . . . . . . . . .6

2. Compliance with Article 6 para. 1

of the Convention

(paras. 45-51) . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 52). . . . . . . . . . . . . . . . . . . . .9

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Turkish citizen, born in 1943 and resident in

Gelsenkirchen (Germany). He was represented before the Commission by

Mr. W. Weh, a lawyer practising in Bregenz (Austria).

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Ambassador Mr. F. Cede,

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

4. The case concerns the applicant's complaint that the proceedings

relating to his compensation claim for detention on remand were unfair

in that, at the appeal stage, the Senior Public Prosecutor's Office

submitted written observations, of which he was not informed and had

no possibility to comment upon. The applicant invokes Article 6

para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 15 July 1992 and registered on

24 July 1992.

6. On 1 December 1993 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 its admissibility and

merits.

7. The Government's observations were submitted on 22 February 1994.

The applicant replied on 18 April 1994.

8. On 30 November 1994 the Commission (First Chamber) declared

admissible the applicant's complaint under Article 6 para. 1 of the

Convention. It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 14 December 1994 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 submissions.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

12. The text of this Report was adopted on 28 June 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto as Appendix I.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 19 May 1989 the investigating judge at the Feldkirch Regional

Court (Landesgericht) heard the applicant as a suspect. He had been

accused by B. of having, together with an accomplice A., threatened him

with a knife, taken SF 1,200 and his Swiss asylum papers from him and

having attempted by way of threat to make him pay another SF 5,800. The

applicant submitted that he was innocent. He had not been present at

the incident at issue. B. had told him that he owed money to A. and

that A. had threatened him with a knife and had taken money and his

papers from him. However, when they went to see A., the latter, who did

not have a knife, said that he would return the papers as soon as B.

had paid his debts.

17. On 22 May 1989 the investigating judge at the Feldkirch Regional

Court ordered the applicant's detention on remand. Referring to S. 180

para. 2 subparas. 1 and 2 of the Code of Criminal Procedure (Straf-

prozeßordnung), he found that there was a reasonable suspicion that the

applicant, together with an accomplice, had committed aggravated

robbery (schwerer Raub), attempted aggravated extortion (versuchte

schwere Erpressung) and suppression of documents (Urkundenunter-

drückung). Furthermore, there was a danger of collusion and a danger

of the applicant's absconding.

18. On 22 June 1989 the Feldkirch Public Prosecutor's Office (Staats-

anwaltschaft) preferred the indictment against the applicant charging

him with partly completed, partly attempted aggravated intimidation

(Nötigung) and suppression of documents.

19. On 4 July 1989, at the trial before the Feldkirch Regional Court,

B., the only witness against the applicant did not appear. The trial

was adjourned. The applicant was released from detention on remand.

20. On 5 January 1990 the Public Prosecutor's Office withdrew the

indictment against the applicant on the ground that the said witness

had moved and his actual whereabouts could not be established. The same

day he also requested that a decision be taken that the applicant had

no claim for compensation under S. 2 para. 1 (b) of the Criminal

Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz).

21. On 11 January 1990 the Feldkirch Regional Court decided to

discontinue the criminal proceedings against the applicant. This

decision was served on the applicant on 18 January 1990, together with

the request to comment, within one week, on the Public Prosecutor's

above request to deny him compensation for his detention on remand.

22. On 24 January 1990, before the end of the one-week deadline the

Judges' Chamber (Ratskammer) at the Feldkirch Regional Court decided

that the applicant had no claim for compensation in respect of his

detention.

23. On 6 March 1990 the Innsbruck Court of Appeal (Oberlandes-

gericht), upon the applicant's appeal, quashed this decision on the

ground that he had not been given the possibility to comment on

submissions by the Public Prosecutor's Office. The matter was sent back

to the Regional Court.

24. On 9 September and 17 October 1991 the applicant made submissions

as regards his compensation claim. He pointed out that he had been

taken in detention on remand on the suspicion of aggravated robbery.

However, this initially existing suspicion had already been dissipated

at the time when the Public Prosecutor had preferred the indictment

against him, as he was only indicted for aggravated intimidation.

Therefore, he had a right to compensation under S. 2 para. 1 (b) of the

Criminal Proceedings Compensation Act. As regards the charge of

aggravated intimidation, the applicant argued that, as he did not have

any previous convictions, he would not have been sentenced to

imprisonment and, therefore, his detention on remand was unlawful.

25. On 22 November 1991 the Judges' Chamber at the Feldkirch Regional

Court again dismissed the applicant's claim. The Judges' Chamber found

that the conditions for compensation under S. 2 para. 1 (b) of the

Criminal Proceedings Compensation Act were not met. The Judges' Chamber

considered in particular that the Public Prosecutor's Office had

withdrawn the indictment because the only witness, B., could not be

heard. The suspicion against the applicant had not been dissipated.

Moreover, the applicant's detention on remand had been justified

because at that time a reasonable suspicion of his having committed the

offences in question existed. Furthermore, there had been a danger of

collusion and a danger of the applicant's absconding.

26. On 11 December 1991 the applicant filed an appeal with the

Innsbruck Court of Appeal. He complained inter alia that the Judges'

Chamber had not dealt with his argument that the suspicion of

aggravated intimidation, which remained after the original suspicion

of aggravated robbery had been dissipated, did not justify his

detention on remand. The Innsbruck Court of Appeal subsequently

referred the file to the Innsbruck Senior Public Prosecutor's Office

(Oberstaatsanwaltschaft) for comments.

27. On 20 December 1991 the Senior Public Prosecutor's Office

submitted its comments. It stated that the applicant's appeal should

be dismissed. Aside from the fact that the applicant was suspected of

robbery when he was arrested, detention on remand was also justified

by the reasonable suspicion, as stated in the indictment, that he had

committed partly completed, partly attempted aggravated intimidation

and suppression of documents, if there was a risk of absconding. This

suspicion too, was not dissipated. The only reason why the indictment

was withdrawn was that the prosecutor's witness could not be found. The

submissions were not served on the applicant.

28. On 30 December 1991 the Innsbruck Court of Appeal, sitting in

camera, dismissed the applicant's appeal. There was no representative

of the Senior Public Prosecutor's Office present at the deliberations.

29. The Innsbruck Court of Appeal confirmed the reasoning by the

Judges' Chamber that the question of whether the applicant had

committed the offences at issue was still open. At the time of the

applicant's arrest there were reasonable grounds to suspect him of

having committed aggravated robbery as well as attempted aggravated

extortion and suppression of documents. Only after the applicant's

hearing before the investigating judge it turned out that it would

hardly be possible to furnish proof that he and his accomplice

obtained, or intended to obtain, property unlawfully, which prompted

the Public Prosecutor to prefer an indictment for partly completed and

partly attempted aggravated intimidation and for suppression of

documents.

30. Further the Court dismissed the applicant's argument that these

offences, triable by a single judge of the court of first instance,

could not justify detention on remand. Referring, inter alia, to S. 180

paras. 1 and 2 of the Code of Criminal Procedure, the Court found that

the conditions for detention on remand were that there was a reasonable

suspicion that the accused had committed a certain crime or

misdemeanour, and that one of the grounds for detention was

established. In respect of the partly completed and partly attempted

aggravated intimidation, the reasonable suspicion which led to the

applicant's detention had not been dissipated subsequently. The Public

Prosecutor only withdrew the indictment as it proved impossible to find

the whereabouts of B., who had been the only witness of the offence.

The decision was served on 15 January 1992.

B. Relevant domestic law

1. Detention on remand

31. Under S. 180 paras. 1 and 2 of the Code of Criminal Procedure

(Strafprozeßordnung), a person may be held in detention on remand -

where there are serious grounds for suspecting him of having committed

a criminal offence - if there is a risk of his absconding, of collusion

or of committing offences.

2. Compensation regarding pecuniary damages resulting from detention

on remand

32. The Criminal Proceedings Compensation Act (Strafrechtliches

Entschädigungsgesetz), according to S. 1, provides for financial

compensation regarding pecuniary damages resulting from detention on

remand. The conditions to be met are laid down in SS. 2 and 3. S. 2

para. 1 (a) concerns the case of unlawful detention on remand. S. 2

para. 1 (b) mentions as conditions that the accused was acquitted, or

that the proceedings against him were otherwise discontinued and the

suspicion that he had committed the offence in question did not

subsist, or that there was a bar to prosecution which had already

existed at the time of his detention.

33. As regards the proceedings, S. 6 stipulates in particular that

the court of second instance regarding the order or prolongation of the

detention on remand is competent to decide upon whether the conditions

under SS. 2 and 3 are met, the detained person has to be heard and, if

necessary, evidence has to be taken. The detained and the Prosecutor's

Office have a right to appeal to the superior court which can take, if

necessary, further evidence. The final decision in these proceedings

is binding.

34. If the said courts find that the conditions under S. 2 and 3 are

met, the injured person has to file a request with the Department of

Finance (Finanzprokuratur) for acknowledgment of his claim. If there

is no decision upon his request within six months or if his claim is

partly or fully refused, the person concerned has to institute civil

court proceedings against the Republic of Austria (SS. 7 and 8).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

35. The Commission has declared admissible the applicant's complaint

that he did not have a fair hearing relating to his compensation claim

for detention on remand, as he did not obtain, and had no possibility

to comment upon, the submissions filed by the Senior Public

Prosecutor's Office with the Innsbruck Court of Appeal.

B. Point at issue

36. Accordingly, the issue to be determined is whether there has been

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

37. Article 6 para. 1 (Art. 6-1) of the Convention, so far as

relevant, provides as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing ... ."

1. The applicability of Article 6 para. 1 (Art. 6-1) of the

Convention

38. 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 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).

39. 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 is 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, 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.

40. 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 (see Eur. Court H.R., Zander

judgment of 25 November 1993, Series A no. 279-B, p. 38, para. 22).

41. 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 H.R., Baraona 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 H.R., Éditions Périscope judgment of 26 March 1992,

Series A no. 234-B, p. 66, para. 40).

42. In the present case, there was a dispute over the applicant's

right to compensation for detention on remand. The applicant claimed

that he was entitled to compensation under the relevant provisions of

Austrian law, partly because the original suspicion against him had

been dissipated before the indictment was preferred, and partly because

his further detention was unlawful. 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 S. 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.

43. Further, the compensation claim asserted by the applicant, in

accordance with S. 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 judgment, loc. cit.; A.M. and J.v.Z. v. the Netherlands,

Comm. Report 4.7.94, para. 53).

44. For these reasons, the Commission finds that the Article 6

para. 1 (Art. 6-1) of the Convention is applicable to the proceedings

at issue.

2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

45. The applicant complains that the compensation proceedings before

the Innsbruck Court of Appeal were unfair in that the Senior Public

Prosecutor's Office submitted a written statement on his appeal of

which he was not informed and which he could not reply to. Contrary to

the Government, he finds that the Senior Public Prosecutor's statement

contained new arguments, namely that the charge of aggravated

intimidation justified his detention on remand. Had he been given the

possibility, he would have contested this view and would have shown

that according to court practice nobody was sentenced to imprisonment

on the said charge.

46. The Government submit that the principle of equality of arms was

not violated by giving the Senior Public Prosecutor's Office the

possibility to comment on the applicant's appeal. In particular, it was

not necessary to let the applicant again comment on the Senior Public

Prosecutor's statement as it contained no new arguments.

47. The Commission recalls the Court's findings in the context of

criminal proceedings, namely that the principle of equality of arms is

only one feature of the wider concept of a fair trial, which also

includes the fundamental right that such proceedings should be

adversarial. The right to an adversarial trial means, in a criminal

case, that both prosecution and defence must be given the opportunity

to have knowledge of and comment on the observations filed by the other

party (see Eur. Court H.R., Brandstetter judgment of 28 August 1991,

Series A no. 211, p. 27-28, paras. 66-67). Accordingly, there is a

breach of Article 6 para. 1 (Art. 6-1), if the prosecution files

submissions with the appeal court, of which the defence is unaware or

is prevented from replying to (Brandstetter judgment loc. cit. paras.

67-69; Eur. Court H.R., Borgers judgment of 30 October 1991, Series A

no. 214-B, p. 31-32, paras. 26-29).

48. The principles set out above are not confined to criminal

proceedings. The Commission recalls that, also in the context of civil

proceedings, the concept of a fair trial should be regarded as

including an equal opportunity of both parties to have knowledge of and

comment upon the observations made by the other party (see

Eur. Court H.R., Ruiz-Mateos judgment of 23 June 1993, Series A

no. 262, p. 25, para. 63, with reference mutatis mutandis to the

Brandstetter judgment).

49. In the present case the Judge's Chamber at the Feldkirch Regional

Court, in its decision of 22 November 1991, dismissed the applicant's

compensation claim for his detention on remand. However, it did not

explicitly deal with the applicant's argument that his detention on the

suspicion of aggravated intimidation was unlawful, as he, having no

previous convictions, would not have been sentenced to imprisonment in

respect of this offence. The Senior Public Prosecutor's Office, in its

submission to the Innsbruck Court of Appeal, contested this view. These

submissions were not served on the applicant. Finally, the Innsbruck

Court of Appeal, sitting in camera, dismissed the applicant's

compensation claim, adducing similar arguments as the Public

Prosecutor's Office.

50. The Commission notes that the applicant was not aware of and did

not have a possibility to comment upon, the observations filed with the

Innsbruck Court of Appeal by the Senior Public Prosecutor's Office. The

latter appeared in the proceedings at issue as the representative of

the State as a defendant. The Senior Public Prosecutor's Office, in the

submissions at issue, stated that the applicant's appeal would have to

be dismissed and adduced arguments for finding his claim ill-founded.

51. In these circumstances, the Commission considers that the

requirements of a fair trial within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention were not met.

CONCLUSION

52. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

ALKIN v. AUSTRIA

ALKIN v. AUSTRIA

LEXI