Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27629/95

by C. H.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 March 1995 by

C. H. against Austria and registered on 14 June 1995 under file

No. 27629/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1972 and residing

Vienna. He is a student. Before the Commission he is represented by

Mr. G. Liedermann, a lawyer practising in Vienna.

A. Particular circumstances of the case

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

On 12 September 1992 police officers of the Vienna Federal Police

Authority (Bundespolizeidirektion) arrested the applicant in the course

of a demonstration on suspicion of having attempted to resist acts of

public authority (versuchter Widerstand gegen die Staatsgewalt) and of

having caused bodily harm to a police officer.

On 14 September 1992 the Investigating Judge, after having

interrogated the applicant as suspect, ordered that he be taken into

detention on remand on the ground of danger of collusion. On

17 September 1992 the applicant was released from detention on remand.

On 23 December 1992 the Vienna Public Prosecutor's Office filed

a bill of indictment against he applicant charging him with attempting

to resist an act of a public authority and causing aggravated bodily

harm.

On 15 July 1993 and 7 October 1993 the trial against the

applicant took place before the Vienna Regional Court (Landesgericht).

On 7 October 1993 the applicant was acquitted of the charges against

him. The Regional Court gave its decision in summary form (gekürzte

Urteilsausfertigung).

On 21 October 1993 the applicant requested compensation for

detention on remand under Section 2 para. 1 (b) of the Criminal

Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz),

on the ground that the suspicion against him had been dissipated, and

under Section 2 para. 1 (a) of the said Act, on the ground that his

detention on remand had been unlawful.

On 11 February 1994 the Vienna Regional Court dismissed the

applicant's claim for compensation under Section 2 para. 1 (b) of the

Criminal Proceedings Compensation Act. It found that, notwithstanding

the applicant's acquittal, the suspicion that he had committed criminal

offences had not been dissipated. The Court noted that at the trial

police officer R.F. had stated that he had been kicked by the applicant

and police officer M.H. that he had seen police officer R.F. on the

ground and the applicant kicking him. Police officer P.S. had stated

that he had seen two police officers trying to arrest the applicant

while the applicant had lashed out. Other witnesses heard by the court

did not make any statements on the incident. Because of several

contradictions between the statements of the police officers R.F. and

M.H. as to the location and the specific conduct of the applicant,

their statements were not sufficient to establish with the necessary

degree of certainty the applicant's guilt. However, since their

statements had been credible on the whole and police officer R.F.'s

injuries had been proved, a suspicion against the applicant that he had

committed the offences charged continued to exist. Thus, the condition

for granting compensation under Section 2 para. 1 (b) of the Criminal

Proceedings Compensation Act, namely that the suspicion against the

person concerned had been dissipated, had not been met.

On 10 March 1994 the applicant appealed.

On 31 May 1994 the Vienna Court of Appeal (Oberlandesgericht),

when dealing with the applicant's appeal, instructed the Regional Court

to supplement its summary judgment of 7 October 1993. The Court of

Appeal referred to the case-law of the European Court of Human Rights,

according to which it was incompatible with the presumption of

innocence under Article 6 para. 2 of the Convention to rely in a

decision refusing compensation for detention on remand on a continuing

state of suspicion against the person concerned, which was not

supported by the reasons given in the judgment itself. Since the

summary judgment did not contain any findings on the situation of

evidence which had led to the acquittal, there was no sufficient

factual basis for deciding on the applicant's appeal.

At an unspecified date the Regional Court supplemented its

summary judgment of 7 October 1993. It stated that even if the

evidence had not been sufficient to convict the applicant, the

suspicion against him had not been dissipated. The continuing state

of suspicion was based on the statements of two witnesses, police

officers R.F. and M..H. who had stated in a convincing way that the

applicant had attacked R.F. in the course of his arrest. Furthermore,

R.F. had suffered injuries which corresponded to the version of events

given by him. The statements of the other witnesses heard by the Court

neither confirmed nor dissipated the suspicion against the applicant.

On 30 August 1994 the Vienna Court of Appeal dismissed the

applicant's appeal of 10 March 1994. The Court of Appeal found that

in its decision refusing compensation for detention on remand the

Regional Court had sufficiently explained why the suspicion against the

applicant had not been dissipated. The applicant's argument that an

acquittal as such dissipated all remaining suspicion could not be

followed. In its judgment in the Sekanina case the European Court of

Human Rights had only found that it was an infringement of the

presumption of innocence if a court in a decision on compensation of

detention on remand adduced arguments against a dissipation of

suspicion which had not been contained in a previous judgment

acquitting the person concerned. In the present case, however, the

Regional Court had relied on arguments already contained in the

acquitting judgment.

On the same day, in a separate decision, the Court of Appeal

dismissed the applicant's compensation claim under Section 2 para. 1

(a) of the Criminal Procedure Compensation Act. The Court found that

the lawfulness of the applicant's detention on remand had to be

assessed in the light of the situation at the time of his detention.

At that time a serious suspicion against the applicant and the risk of

collusion existed. When the risk of collusion had ceased to exist the

applicant had been released immediately.

The applicant did not appeal against the Court of Appeal's

decision refusing his compensation claim under Section 2 para. 1 (a)

of the Criminal Procedure Compensation Act.

B. Relevant domestic law

1. Detention on remand

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 further offences.

2. Compensation regarding pecuniary damages resulting from detention

on remand

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 SS. 2 and 3. S. 2 para. 1 (a) relates to the case of unlawful

detention on remand. S. 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.

S. 6 para. 1 stipulates that when a court orders or prolongs

detention on remand, the superior court is competent to decide whether

the conditions of S. 2 para. 1 (a) and S. 3 are met. S. 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 S. 2 para. 1 (b) and S. 3 are met.

In these proceedings the detained person has to be heard and, if

necessary, evidence has to be taken. According to S. 6 para. 4 a

decision on a compensation claim under S. 2 para. 1 has to be served

on the person concerned but not to be made public. 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 on the civil courts.

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

met, the person concerned 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).

COMPLAINTS

The applicant complains under Article 5 para. 1 (c) of the

Convention that his detention on remand had been unlawful because there

had been no serious suspicion against him of having committed criminal

offences. He submits that the Court of Appeal should not have found

that there had existed a serious suspicion against him at the time of

his detention on remand, as the existence of such a suspicion

justifying detention on remand had to be assessed in the light of his

subsequent acquittal by the Regional Court.

The applicant further complains under Article 6 para. 2 of the

Convention that the Austrian courts disregarded the presumption of

innocence when refusing his claim for compensation under Section 2

para. 1 (b) of the Criminal Proceedings Compensation Act, in that,

despite his acquittal by the Regional Court, they found that a

suspicion against him continued to exist.

THE LAW

1. The applicant complains under Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention that his detention on remand had been

unlawful.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 5 para. 1 (Art. 5-1) of the Convention, as under

Article 26 (Art. 26) of the Convention, it may only deal with a matter

after all domestic remedies have been exhausted, according to the

generally recognised rules international law.

The Commission observes that two distinct proceedings on the

applicant's claim for compensation for detention on remand took place.

The first set of proceedings concerned the applicant's claim for

compensation on the ground that he had been acquitted (Section 2

para. 1 (b) of the Criminal Proceedings compensation Act). The second

set of proceedings concerned his claim for compensation on the ground

that his detention was allegedly unlawful (Section 2 para. 1 (a) of the

Criminal Proceedings Compensation Act). With regard to the latter set

of proceedings the Commission recalls that such proceedings, as their

subject matter is the examination of the lawfulness of detention on

remand suffered by a person, may constitute an effective domestic

remedy to be exhausted for the purpose of Article 26 (Art. 26) of the

Convention by a person complaining about an alleged breach of Article

5 (Art. 5) of the Convention (No. 7950/77, Dec. 4.3.80, D.R. 19

p. 213).

In the proceedings under Section 2 para. 1 (a) of the Criminal

Proceedings Compensation Act the applicant, however, failed to lodge

an appeal with the Supreme Court against the Court of Appeal's decision

of 30 August 1994.

It follows that the applicant has not satisfied the requirements

as to the exhaustion of domestic remedies under Article 26 (Art. 26)

of the Convention and that this part of the application, therefore, is

inadmissible by virtue of Article 27 para. 3 (Art. 27-3) of the

Convention.

2. The applicant complains under Article 6 para. 2 (Art. 6-2) of the

Convention that the Austrian courts disregarded the presumption of

innocence when refusing his claim for compensation, in that, despite

his acquittal by the Regional Court, they found that a suspicion

against him continued to exist.

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."

The Commission considers it cannot, on the basis of the file,

determine the admissibility of this complaint and that it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Rules of

Procedure, to give notice of this complaint to the respondent

Government.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaint

that the Austrian courts disregarded the presumption of innocence

when refusing his claim for compensation, in that they found that

a suspicion against him continued to exist after his acquittal;

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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C.H. v. AUSTRIA

C.H. v. AUSTRIA

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