Lexploria

THE FACTS

The facts presented by the parties and apparently not in dispute

between them may be summarised as follows:

1. On 26 October 1950 the applicant was convicted of murder by the

Regional Court (Kreisgericht) of Korneuburg and sentenced to life

imprisonment. His plea of nullity (Nichtigkeitsbeschwerde) from this

decision was dismissed by the Supreme Court (Oberster Gerichtshof) on

31 March 1951.

2. On 30 October 1959 the applicant made his first application (No.

624/59) to the Commission. This application was rejected on 3 June 1960

on the ground that, with the exception of the allegation that the

Central Murder Commission had refused to make a fresh investigation of

his case, all the facts alleged related to a period before 3 September

1958, the date of the entry into force of the Convention with respect

to Austria. Moreover, the refusal of a fresh investigation did not

violate any of the rights and freedoms guaranteed by the Convention.

3. On 23 December 1960 the applicant made an application for retrial

which led to new extensive investigations. On 6 May 1966 the Regional

Court set aside the applicant's conviction on the ground that there was

new evidence available.

The prosecution appealed against this decision but it was confirmed by

the Court of Appeal (Oberlandesgericht) in Vienna on 8 July 1966.

The applicant was thereupon transferred to detention on remand and the

prosecution commenced investigations with a view to retrial. On 13

October 1966 the prosecution applied for the proceedings against the

applicant to be terminated and on 14 October 1966 the applicant was

finally released, having been imprisoned for a total period of 17

years, 4 months and 10 days.

4. On 19 October 1966 the Regional Court in Korneuburg rejected the

applicant's claim for compensation during the two periods of detention

on remand from 4 June 1949 to 31 March 1951 and from 8 July 1966 to 14

October 1966 and also the applicant's claim for compensation on account

of his conviction and sentence. The court considered that the applicant

had not succeeded in invalidating (entkräften) the suspicion which lay

upon him.

The applicant's appeal (Beschwerde) against this decision was rejected

by the Court of Appeal on 30 December 1966.

5. The applicant alleged violations of Articles 4, 5 and 6 of the

Convention.

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* The partial decision of 3-4 February 1969 has been published in

Collection of Decisions, Vol. 30, pp. 31-52.

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PROCEEDINGS

1. By its partial decision of 3 and 4 February 1969, the Commission

declared inadmissible the applicant's complaints under:

- Articles 4 and 5 of the Convention concerning his detention as

a convicted person and pending the retrial proceedings;

- Article 6 of the Convention concerning the proceedings on his

application for retrial;

- Article 6 (2) and (3) of the Convention concerning the

proceedings on his application for compensation.

The Commission further decided to adjourn its examination of the

applicant's remaining complaint that Article 6 (1) of the Convention

was violated in the proceedings on his application for compensation.

In this connection, the Commission had regard to the submission of the

applicant that his claim for compensation must be classified as a

"civil right" within the meaning of Article 6 (1) of the Convention and

that, in the determination of this right, the principle of "equality

of arms" had been violated by the Austrian courts.

2. When taking the above decision, the Commission noted that reform

legislation concerning compensation for unjustified detention was

pending before the Austrian Parliament which might also affect the

situation of the applicant.

3. Some months after the Commission's decision the Federal Act of 8

July 1969 on Compensation for Detention, under Criminal Law and

Conviction (Bundesgesetz vom 8. Juli 1969 über die Entschädigung für

strafgerichtliche Anhaltung und Verurteilung) was promulgated.

It appears from Article 2 (1) (c) of this Act that compensation for

detention following a final conviction which has later been set aside

can no longer be refused on the ground that the suspicion against the

claimant has not been invalidated. Further, under Article 12 (2) (b)

in fine, compensation for such detention may be claimed by persons

convicted after 27 April 1945 and detained for a period of 10 years or

longer. This clause covers the applicant's case.

4. Immediately after the promulgation of the above Federal Act, counsel

for the applicant filed a new application for compensation with the

Regional Court and on 25 May 1970 the Court decided that:

- the applicant was not entitled to compensation for his detention

pending trial at first instance and appeal (4 June 1949 to 31 March

1951) and for his detention pending retrial (8 July to 14 October

1966);

- The applicant was entitled to compensation for the damage

suffered as a result of his conviction in 1950-51, i.e. in connection

with his detention as a convicted person from 1 April 1951 until 7 July

1966.The amount of compensation to be paid to the applicant was to be fixed

in subsequent proceedings.

5. On 22 July 1970 the Commission took note of the new Federal Act and

of the proceedings mentioned under 4 above. It decided to adjourn its

examination of the admissibility of the applicant's remaining complaint

under Article 6 of the Convention until the new domestic proceedings

concerning his claim for compensation have been concluded by a final

decision on the amount.

6. By letters of 10 and 13 March, the applicant informed the Commission

that he had on 9 March 1971 concluded a compromise (Vergleich) with the

Republic of Austria, represented by the Federal Minister of Justice.

Under the terms of this agreement, a copy of which has been submitted:

- the applicant is to receive 1,000,000 Austrian Schillings

compensation for the damage suffered as a result of his conviction in

1950;

- the Government undertakes to pay retroactively the applicant's social

security contributions (Sozialversicherungsbeiträge) for the period

between 1 April 1951 and 7 July 1966 in the amount of 5,656.10

Schillings;

- the applicant states that any claims which he may have against the

Republic will be satisfied by the payment of the above sums;

- the applicant has accordingly informed the Commission that he wishes

to withdraw his application.

FINDINGS OF THE COMMISSION

The Commission notes the applicant's statement that any claims which

he may have against the Republic of Austria will be satisfied by the

payment of the sum agreed upon and also considers that the compromise

concluded between the applicant and the Republic of Austria on 9 March

1971 is in harmony with human rights as defined in the Convention. It

finds that consequently there are no reasons of a general character

affecting the observance of the Convention which, in spite of the

applicant's declaration of withdrawal of 10 March 1971, would

necessitate a further examination of the remainder of the application.

For these reasons, the Commission decides TO STRIKE THIS APPLICATION

OFF ITS LIST OF CASES

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E.R. v. AUSTRIA

E.R. v. AUSTRIA

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