Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 13126/87

Karl SEKANINA

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 20 May 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 14) . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5 - 9) . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 10 - 14) . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 30). . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 15 - 29) . . . . . . . . . . . . . . .3

B. Relevant domestic law

(para. 30) . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 31 - 51). . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 31) . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 32) . . . . . . . . . . . . . . . . . .6

C. As to the alleged violation of the

presumption of innocence

(paras. 33 - 50) . . . . . . . . . . . . . . .6

Conclusion

(para. 51) . . . . . . . . . . . . . . . . . .9

Dissenting opinion of Sir Basil HALL. . . . . . . . . . . . 10

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 11

APPENDIX II : DECISION AS TO THE ADMISSIBILITY . . . . . 12

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 1937, who resides

in Vienna. He is represented before the Commission by

Mr. Wolfgang Moringer, a lawyer practising in Linz.

3. The application is directed against Austria whose Government are

represented by their Agent, Ambassador Helmut Türk, Deputy Secretary

General and Legal Counsel of the Federal Ministry of Foreign Affairs.

4. The case concerns a judicial decision by which the applicant was

refused compensation for unjustified detention following his acquittal

of a charge of murder. The court considered that even after the

acquittal a suspicion continued to exist against the applicant. The

applicant complains that this finding violates the presumption of

innocence under Article 6 para. 2 of the Convention.

B. The proceedings

5. The application was introduced on 21 April and registered on

10 August 1987.

6. On 4 September 1989 the Commission decided to give notice of the

application to the respondent Government and to invite them to submit

observations in writing on the admissibility and merits of the

application.

7. On 1 December 1989 the Government submitted their observations

to which the applicant replied on 9 January 1990.

8. On 3 September 1991 the Commission declared the application

admissible.

9. 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 of the case. Consultations with the parties took

place between 23 October 1991 and 5 February 1992. The Commission now

finds that there is no basis on which such a settlement can be

effected.

C. The present Report

10. 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:

MM. C. A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C. L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M. P. PELLONPÄÄ

B. MARXER

11. The text of this Report was adopted on 20 May 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

12. 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.

13. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

14. 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

15. The applicant was detained on remand for about one year, from

1 August 1985 to 30 July 1986, in connection with criminal proceedings

in which he was suspected of having murdered his wife. She died

following a fall out of a window of the matrimonial home on the fifth

floor of an apartment house in Linz.

16. Various remedies by which the applicant sought to challenge the

murder suspicion during his detention were rejected. Eventually he was

tried on a charge of murder and on a further charge of illegal coercion

against a fellow prisoner whom he had allegedly threatened to kill if

he disclosed certain admissions concerning the murder charge which the

applicant had allegedly made during his detention.

17. On 30 July 1986 a Court of Assizes (Geschworenengericht) at the

Regional Court (Landesgericht) of Linz acquitted the applicant of both

charges. The jury rejected the murder charge by a verdict of seven to

one, the coercion charge by a unanimous verdict.

18. The jury stated in its memorandum (Niederschrift der

Geschworenen) concerning the question of murder:

(German)

"Keine stichhaltigen Beweise, um Herrn Sekanina als Mörder zu

verurteilen. Laut medizinischem Gutachten von Prof. Kaiser hätte

die Frau Sekanina ihren Mann noch als Mörder bezeichnen können.

Die Aussagen einiger Zeugen erscheinen uns unglaubwürdig."

(Translation)

"No conclusive evidence justifying Mr. Sekanina's conviction of

murder. According to Prof. Kaiser's medical expert opinion

Mrs. Sekanina would still have been able to call her husband a

murderer. The statements of some witnesses appear incredible to

us."

19. Concerning the question of coercion they stated:

(German)

"Die anderen drei Mithäftlinge haben nichts von einer schweren

Drohung mit dem Tod gehört (laut ihrer Zeugenaussagen)."

(Translation)

"(According to their testimony) the other three fellow prisoners

have not heard anything of a serious threat of killing."

20. The applicant was released immediately after the reading of the

verdict. The public prosecution did not appeal against the applicant's

acquittal.

21. Subsequently, the applicant requested a State contribution to the

necessary costs of his defence (in accordance with Section 393 a of the

Code of Criminal Procedure) and compensation for pecuniary damage

suffered as a result of the fact that he had been kept in detention.

22. The public prosecutor's office raised objections as to the

quantum of the first claim. As regards the second claim, it requested

the court to find that the conditions of Section 2 para. 1 b of the Act

on Compensation in Criminal Matters (strafrechtliches Entschädigungs-

gesetz) were not met as the suspicion raised in the criminal

proceedings against the applicant had not been entirely dissipated.

23. The Regional Court of Linz, sitting without a jury, dealt with

the matter in two separate decisions.

24. On 12 December 1986 it ordered the State to pay a contribution

of 22,546.50 AS towards the necessary costs of the applicant's defence.

The applicant's appeal against this decision, by which he demanded the

award of a higher amount, was rejected by the Linz Court of Appeal

(Oberlandesgericht) on 15 January 1987.

25. On 10 December 1986 the applicant's claim to be awarded

compensation for pecuniary damage was rejected by the Regional Court.

The court stated, noting the applicant's acquittal:

(German)

"Der Verdacht ist erst dann entkräftet, wenn alle gegen den

Verhafteten sprechenden Verdachtsmomente widerlegt worden sind,

so dass sie aufgehört haben, ein Argument für die Schuld des

Verdächtigen zu bilden."

(Translation)

"The suspicion is only dissipated if all elements of suspicion

against the detained have been disproved with the consequence

that they have ceased to provide any argument for the guilt of

the suspect."

26. The court found further that there were still important elements

of suspicion: repeated threats, attacks and aggressions, satisfaction

at his wife's death, admissions made to a fellow prisoner, financial

difficulties, and unsuccessful attempts to be given the custody of the

children. The vote of the jury also showed that it had acquitted the

applicant only because it gave him the benefit of the doubt.

27. On 25 February 1987 the Linz Court of Appeal confirmed this

decision. It rejected the applicant's argument that the relevant

provision of the Act on Compensation in Criminal Matters (Section 2

para. 1 b) was unconstitutional and infringed Article 6 para. 2 of the

Convention because it required, beyond an acquittal, dissipation of

suspicion. The presumption of innocence was to be observed in the

proceedings prior to the judgment, but did not give a right to

compensation to every detained person in case of his acquittal. The

exclusion of compensation in the challenged provision was not based on

guilt, but on continued existence of suspicion. The finding by a court

that such a suspicion still existed did not infringe the presumption

of innocence.

28. In the present case it could not be concluded merely from the

vote of the jury that the suspicion had been dissipated. More

important was the memorandum of the jury which implied doubts in this

respect. In any event the court competent to decide on the

compensation issue was not bound by the acquittal as regards the

question of suspicion. This suspicion had repeatedly been confirmed

in the investigation, in particular by the decisions prolonging the

applicant's detention on remand.

29. The Regional Court had rightly described the elements justifying

the assumption of continued suspicion. In addition there was further

evidence to support this assumption in the light of the trial.

Therefore the applicant's claim to be awarded compensation for

pecuniary damage had to be rejected.

B. Relevant domestic law

30. The relevant parts of Section 2 para. 1 b of the Act on

Compensation in Criminal Matters (Fed. Law Gazette No. 270/1969) read

as follows:

(German)

"Der Ersatzanspruch besteht, wenn

....

b) der Geschädigte wegen des Verdachtes einer im Inland zu

verfolgenden strafbaren Handlung vom einem inländischen Gericht

in vorläufige Verwahrung oder in Untersuchungshaft ... genommen

und in der Folge in Ansehung dieser Handlung freigesprochen ...

worden ist und der Verdacht, daß der Geschädigte diese Handlung

begangen habe, entkräftet ... ist, ... ."

(Translation)

"The right to compensation arises if

...

b) the injured person has been placed in provisional custody or

detention on remand by a domestic court on suspicion of a

criminal offence liable to domestic prosecution ... and if

subsequently he has been acquitted of the charge in question ...

and if the suspicion that the injured person has committed the

offence in question has been dissipated... ."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that in the decision to refuse him compensation for unjustified

detention on remand the Austrian courts disregarded the presumption of

innocence.

B. Point at issue

32. The Commission must accordingly determine whether there has been

a violation of Article 6 para. 2 (Art. 6-2) of the Convention.

C. As to the alleged violation of the presumption of innocence

33. Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

34. The applicant alleges a violation of this provision in that,

despite his acquittal, the courts assumed a continuing suspicion

against him when rejecting his claim to be compensated for his

detention on remand.

35. The Government submit that the European Court of Human Rights

repeatedly found it compatible with the presumption of innocence, as

laid down in Article 6 para. 2 (Art. 6-2), to refer to a continued

state of suspicion where this did not amount to a determination of the

accused person's guilt (cf. Adolf judgment of 26 March 1982, Minelli

judgment of 25 March 1983, and the Lutz, Englert and Nölkenbockhoff

judgments of 25 August 1987, Eur. Court H.R., Series A nos. 49, 62 and

123). The Government contend that the principles developed in those

judgments also apply in the present case. The statements contained in

the Austrian court decisions complained of in the present case did not

amount to a finding of guilt, but were merely based on a state of

suspicion, and thus compatible with the presumption of innocence as

laid down in Article 6 para. 2 (Art. 6-2).

36. The Commission recalls that despite the wording of Article 6

para. 2 (Art. 6-2), which secures the presumption of innocence to

"everyone charged with a criminal offence" ("toute personne accusée

d'une infraction"), this provision has been consistently interpreted

as also applying to situations where the person concerned is not or no

longer formally charged with a criminal offence (cf. inter alia the

above cases referred to by the Government). Furthermore the

presumption of innocence is to be observed not only by the criminal

court trying a case, but also by other authorities (cf. No. 7986/77,

Petra Krause v. Switzerland, Dec. 13.10.78, D.R. 13 p. 73; No. 9077/80,

X. v. Austria, Dec. 6.10.81, D.R. 26 p. 211; and No. 10847/84, R.F. and

S.F. v. Austria, Dec. 7.10.85, D.R. 44 p. 238) including courts other

than those which are competent to determine a criminal charge (in this

respect, cf. in particular No. 9295/81, X. v. Austria, Dec. 6.10.82,

D.R. 30 p. 227).

37. In the latter case the Commission stated inter alia (loc. cit.

p. 228):

"No authority may treat a person as guilty of a criminal offence

unless he has been convicted by the competent court and in the

case of an acquittal the authorities may not continue to rely on

the charges which have been raised before that court but which

have been proved to be unfounded. This rule also applies to

courts which have to deal with non-criminal consequences of

behaviour which has been subject to criminal proceedings. They

must be bound by the criminal court's finding according to which

there is no criminal responsibility for the acts in question

although this naturally does not prevent them to establish e.g.

a civil responsibility arising out of the same facts."

38. An acquittal does not necessarily exclude the making of official

statements as to the suspicion against or the guilt of the accused in

the course of later stages of the proceedings in the same case. In

particular no problem under Article 6 para. 2 (Art. 6-2) arises where

such statements are made in the context of an appeal against an

acquittal (cf. No. 15871/89, X. v. Federal Republic of Germany, and

No. 17664/91, Y. v. Federal Republic of Germany, Dec. 9.10.91, to be

published in D.R.).

39. Problems may, however, arise where the criminal proceedings are

still pending or where they have resulted in an acquittal or a

discontinuation without a determination of the criminal charges. In

this respect the Convention organs distinguish between statements which

reflect the opinion that the person concerned is guilty, and statements

which merely describe a state of suspicion. The former infringe the

presumption of innocence (cf. in particular Eur. Court H.R., Minelli

judgment, loc. cit., p. 18, para. 37; No. 10107/82, I. and C. v.

Switzerland, Comm. Report 4.12.85, D.R. 48, p. 35; cf. also

No. 12748/87, Grabemann v. Federal Republic of Germany, Dec. 14.3.89,

to be published in D.R.), whereas the latter have been regarded as

unobjectionable in various situations examined by the Convention

organs.

40. Such situations have included statements made by a politician

(cf. No. 7986/77, loc. cit.), the police (Nos. 9077/80 and 10847/84,

loc. cit.) or a court (No. 11170/84, Brandstetter v. Austria,

Dec. 14.7.87, Appendix II to Comm. Report 8.5.90) prior to the

institution of criminal proceedings, and also statements made by courts

in connection with (cf. Eur. Court H.R., Adolf judgment, loc. cit.) or

after the discontinuation of criminal proceedings without the previous

conduct or completion of a procedure satisfying all the requirements

of Article 6 (Art. 6) (cf. Eur. Court H.R., Lutz, Englert and

Nölkenbockhoff judgments, loc. cit.). In those cases the Court found

that Article 6 para. 2 (Art. 6-2) is not violated if the relevant

judicial decisions only describe a state of suspicion and do not

contain a finding of guilt nor impose a penalty or other measure which

can be equated with a penalty.

41. However, the Convention organs have not so far been called upon

to decide the question whether remarks referring to a state of

suspicion are also permitted following a final acquittal of the person

concerned, as in the present case.

42. The Commission recalls that the applicant was refused

compensation for unjustified detention on remand on the ground that

despite his acquittal there continued to exist a suspicion of murder

against him.

43. The relevant decisions were taken under Section 2 para. 1 b of

the Act on Compensation in Criminal Matters which provides for

compensation, inter alia, if the person concerned has been acquitted

and the suspicion against him has been dissipated. The Austrian courts

interpret this provision in the sense that the acquittal must also have

removed any suspicion against the accused.

44. It is not the function of the Convention organs to rule in

abstracto on the compatibility of legal rules with the Convention

Eur. Court H.R., Golder judgment of 21 February 1975, Series A no. 18,

p. 19, para. 39). In the present case the Commission is not called

upon to examine whether the above legal provision is compatible with

the Convention. It only has to review the manner in which it was

applied (cf. Eur. Court H.R., Adolf judgment, loc. cit., p. 18,

para. 39; Nölkenbockhoff judgment, loc. cit., p. 87, para. 41).

45. The Commission has held that no right to compensation for lawful

detention on remand is guaranteed by the Convention in a case where the

accused is eventually acquitted or the proceedings are discontinued

(cf. No. 9108/80, Dec. 14.5.81, D.R. 24 p. 232; No. 9912/82, Lutz v.

Federal Republic of Germany, Comm. Report 18.10.85, para. 43;

No. 10282/83, Englert v. Federal Republic of Germany, Comm. Report

9.10.85, para. 41; and No. 10300/83, Nölkenbockhoff v. Federal Republic

of Germany, Comm. Report 9.10.85, para. 42).

46. However, like any other judicial decisions taken after an

acquittal those concerning compensation claims must not violate the

presumption of innocence enshrined in Article 6 para. 2 (Art. 6-2).

They are required to "presume" that the person concerned is "innocent"

as he has not been "proved guilty according to law".

47. The references to "suspicion" against the applicant made by the

Austrian courts did not relate to the issue of the justification of the

pre-trial suspicion. The impugned remarks of the courts referred to

a suspicion which they believed continued to exist against the

applicant even after his acquittal by the Court of Assizes because in

their view that court's judgment had not dissipated the said suspicion.

48. In the Commission's view the criminal courts' judicial authority

would be severely undermined if after an acquittal a suspicion could

be maintained that the accused had committed the offences dealt with

at the trial. The role of the courts, as conceived in Article 6

(Art. 6) in general and which also finds its expression in the

principle of the presumption of innocence laid down in Article 6

para. 2 (Art. 6-2) excludes such a suspicion in the case of a person

whose record has been cleared by a final acquittal.

49. In the present case the Austrian courts moreover did not limit

their findings to the assumption of a suspicion continuing after the

applicant's acquittal. In the decision of 10 December 1986 the

Regional Court also suggested that such a suspicion could continue to

provide an argument for the "guilt" of the suspect. The Regional

Court's decision further relied on facts in respect of which the

applicant had been acquitted (admissions made to a fellow prisoner).

The Court of Appeal expressly stated that it did not consider itself

bound by the applicant's acquittal.

50. It follows that the statements made by the Austrian courts in the

decisions to refuse the applicant compensation for unjustified

detention were incompatible with the presumption of innocence.

Conclusion

51. The Commission concludes, by 18 votes to 1, that there has been

a violation of Article 6 para. 2 (Art. 6-2) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Dissenting Opinion of Sir Basil HALL

In my opinion there has been no violation of Article 6 para. 2

in this case. The paragraph reads:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law".

Mr. Sekanina had been acquitted after a trial by jury. He

claimed compensation for damage suffered as a result of his having been

kept in provisional detention pending trial. That matter was not dealt

with by the trial court, but by the Regional Court of Linz and, on

appeal, by the Linz Court of Appeal.

The issue before those courts was not whether he was guilty of

the offence with which he had been charged. Their jurisdiction indeed

only arose after an acquittal. They had to determine whether "the

suspicion that the injured person has committed the offence in question

has been dissipated". In these circumstances I do not consider that

Mr. Sekanina can be regarded as having been, at the time at which the

Linz courts dealt with his claim, a person charged with a criminal

offence.

Even if that were not the case I do not find that the remarks

made by the courts amounted to a statement of guilt which offended

against the principle of the presumption of innocence.

I do not read the judgment of the Court of Appeal as questioning

the decision of the jury. The legislation made it plain that acquittal

was not conclusive as to entitlement to compensation. It had also to

be shown that suspicion had been dissipated. The court was therefore

justified in saying that the acquittal was not binding on them. The

courts' statements do not in the circumstances offend against

Article 6 para. 2. They merely reflect the view that all elements of

suspicion had not been disproved, a view which they were required to

formulate under national legislation, which was not of itself

incompatible with Article 6 para. 2 of the Convention.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

21 April 1987 Introduction of the application

10 August 1987 Registration of the application

A. Examination of Admissibility

4 September 1989 Commission's decision to invite the

Government to submit observations on

the admissibility and merits of the

application

2 December 1989 Government's observations

9 January 1990 Applicant's observations in reply

3 September 1991 Commission's decision to declare the

application admissible

B. Examination of the merits

5 September 1991 Decision on admissibility transmitted

to the parties

11 January 1992 Commission's consideration of the

state of proceedings

14 May 1992 Commission's deliberations on the

merits and final votes

20 May 1992 Adoption of the Report

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SEKANINA v. AUSTRIA

SEKANINA v. AUSTRIA

LEXI