Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 17090/90

H.

against

Austria

REPORT OF THE COMMISSION

(adopted on 8 December 1993)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I: STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . 3

PART II: SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . . 4

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by Franz Hell against Austria on

16 January 1990. It was registered on 19 August 1990 under file

No. 17090/90.

The applicant was represented by Mr. Richard Soyer, a lawyer

practising in Vienna.

The Government of Austria were represented by their Agent,

Ambassador F. Cede, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

2. The application relates to the lawfulness of the applicant's

detention in prison from 5 to 9 January 1990 and from 5 to 15 May 1990.

On 31 March 1993 the Commission (First Chamber) declared the

application partly admissible and partly inadmissible.

3. The Commission then proceeded to carry out its task under

Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an

examination of the petition and, if need be, an

investigation, for the effective conduct of which the

States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human

Rights as defined in this Convention."

4. The Commission (First Chamber) found that the parties had reached

a friendly settlement of the case and on 8 December 1993 it adopted

this Report which, in accordance with Article 28 para. 2 of the

Convention, is confined to a brief statement of the facts and of the

solution reached.

-------------

(1) This decision is public and may be obtained from the Commission's

Secretariat on request.

The following members were present when the Report was adopted:

MM. A. WEITZEL, President

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

PART I

STATEMENT OF THE FACTS

5. On 5 January 1989 the Innsbruck Regional Court (Landesgericht)

ordered the applicant's detention on remand. He had been arrested on

3 January 1989. After an initial extension of the time permitted for

detention, to 5 November 1989, the Innsbruck Court of Appeal

(Oberlandesgericht) on 31 October 1989 extended the permitted period

of detention to one year, that is, to 5 January 1990. An application

for release which the applicant had made was unsuccessful, and an

appeal was also unsuccessful, the Innsbruck Court of Appeal giving its

decision on 21 December 1989.

6. According to the Government, on 29 December 1989 the Innsbruck

Regional Court forwarded the case file to the Innsbruck Court of Appeal

with a request for the detention on remand to be reasonably extended.

The applicant submits that the copy of the prosecuting authority's

request which he received was dated 8 January 1990. The request was

granted on 9 January 1990. The period of permitted detention was

extended to 16 months, that is, to 5 May 1990.

On 2 May 1990 the prosecuting authority applied for a further

extension of the permitted period of detention, this time to twenty

months. The Regional Court forwarded the application to the Court of

Appeal on the same day. On 15 May 1990 the Innsbruck Court of Appeal

granted the extension, that is, detention was now permitted to

5 September 1990.

7. On 28 June 1990 the Supreme Court (Oberster Gerichtshof) rejected

the applicant's request for compensation made under Section 2 sub-

section 1 (a) Criminal Compensation Act 1969 (Strafrechtliches

Entschädigungsgesetz).

8. On 14 November 1990 the applicant was convicted by the Innsbruck

Regional Court and sentenced to 4 years' imprisonment. The period

spent in remand was deducted from the period he would actually serve.

The applicant did not appeal.

9. The application concerns the lawfulness of the applicant's

detention from 5 to 9 January 1990 and from 5 to 15 May 1990. He

alleges a violation of Article 5 para. 1 in this respect.

PART II

SOLUTION REACHED

10. Following the decision on the admissibility of the application,

the Commission placed itself at the disposal of the parties with a view

to securing a friendly settlement in accordance with

Article 28 para. 1 (b) of the Convention and invited the parties to

submit any proposals they wished to make.

11. In accordance with the usual practice, the Chamber Secretary,

acting on the Commission's instructions, contacted the parties to

explore the possibilities of reaching a friendly settlement. On

7 September 1993 the Commission made specific proposals for settlement

of the case.

12. By letters of 5 and 8 November 1993 the Agent of the Government

and the applicant's representative respectively submitted the following

identical declarations on the terms of the settlement.

[Translation]

"Declaration by the parties with a view to a friendly settlement

In connection with Application No. 17090/90 by Mr. Franz HELL,

the parties, with reference to Article 28 para. 1 (b) of the European

Convention on Human Rights and to the assistance of the European

Commission of Human Rights, declare as follows:

1. The Government of the Republic of Austria will pay to the

applicant a sum amounting to altogether AS 30,000 as compensation

in respect of any possible claims relating to the present

application. This sum includes AS 12,000 in respect of costs and

expenses incurred before the Commission.

This amount will be paid to the applicant's representative,

Dr. R. Soyer (Creditanstalt-Bankverein 0955-40555/00) in Vienna.

2. The applicant waives any further claims against the

Republic of Austria relating to the present application."

[German]

"Erklärung der Parteien zur gütlichen Regelung

In der Individualbeschwerde Nr. 17090/90 des Herrn Franz HELL

verständigen sich die Parteien unter Bezugnahme auf Artikel 28 Abs. 1 b

der Europäischen Konvention zum Schutze der Menschenrechte und

Grundfreiheiten und unter Mitwirkung der Europäischen Kommission für

Menschenrechte auf die nachstehende gütliche Regelung:

1. Die österreichische Regierung zahlt dem Beschwerdeführer

als Ausgleich für sämtliche etwaigen Ansprüche im Zusammenhang

mit der vorliegenden Individualbeschwerde einen Gesamtbetrag von

AS 30 000. Dieser Betrag umfasst AS 12 000 hinsichtlich der

Gebühren und Auslagen, die im Rahmen des Verfahrens vor der

Kommission entstanden sind.

Dieser Betrag wird an den Verfahrensbevollmächtigten des

Beschwerdeführers Herrn Dr. R. Soyer in Wien

Creditanstalt-Bankverein 0955-40555/00 überwiesen.

2. Der Beschwerdeführer verzichtet auf die Geltendmachung

allfälliger weiterer Forderungen gegen die Republik Österreich

im Zusammenhang mit dem der Beschwerde zugrundeliegenden

Sachverhalt."

At its session on 8 December 1993, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

13. For these reasons, the Commission adopted this Report.

Secretary to the First Chamber President of the First Chamber

(M. F. BUQUICCHIO) (A. WEITZEL)

Menu

H. v. AUSTRIA

H. v. AUSTRIA

LEXI