Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24429/94

by Saso REBRICA

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 1996, 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. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 9 June 1994 by

Saso REBRICA against Austria and registered on 17 June 1994 under file

No. 24429/94;

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 facts of the case as they have been submitted by the

applicant may be summarised as follows:

A. The particular circumstances of the case

The applicant, born in 1970, is a Slovenian national and resident

in Gorna Radgona, Slovenia. In the proceedings before the Commission

he is represented by MM. W. Thurner, P. Schaden and W. Vacarescu,

lawyers practising in Graz.

On 24 September 1992 the applicant and a second person entered

Austria by car at the Slovenian/Austrian border. Upon the customs

inspection, the Austrian customs authorities discovered that their car

had been stolen in Germany and that firearms were hidden underneath the

back seat. Both the applicant and the second person were arrested and

criminal proceedings were instituted against them on the suspicion of

grave theft and of offences under the War Equipment Act

(Kriegsmaterialiengesetz). On 26 September 1992 they were taken into

detention on remand.

On 23 October 1992 the applicant requested that he be released

from detention on remand. He repeated his earlier statements that he

had only been co-driver in the car and not been involved in the

offences concerned. On 11 November 1992 the Graz Regional Court

(Landesgericht) ordered the applicant's release. The Public

Prosecutor's Office (Staatsanwaltschaft) lodged an appeal. However,

on 13 November 1992, following information by the German prosecution

authorities that no request for the applicant's extradition would be

lodged, the appeal was withdrawn and the applicant released. The

proceedings were discontinued on 20 January 1993.

Subsequently, the applicant filed a request for compensation

regarding his detention, referring to S. 2 para. 1 (b) of the Criminal

Proceedings (Compensation) Act (Strafrechtliches Entschädigungsgesetz),

which concerns cases of acquittal or otherwise discontinuation of

criminal proceedings.

On 7 April 1993 the Judges Chamber (Ratskammer) of the Vienna

Regional Court dismissed the applicant's claim for compensation

regarding the discontinuation of the investigations against him.

In its decision, the Judges Chamber noted the background and the

course of the criminal proceedings against the applicant. Referring

to S. 2 para. 1 (b) of the Criminal Proceedings (Compensation) Act, it

observed that, following discontinuation of criminal proceedings, a

suspect could only request compensation for his detention on remand if

the suspicion of his having committed the offence in question had been

dissipated. The Judges Chamber considered that, in the circumstances

of the applicant's arrest in a stolen car with firearms hidden inside,

there had been a strong suspicion (erheblicher Tatverdacht) that the

two suspects had collaborated. This suspicion had subsequently not

been confirmed with the certainty necessary for the applicant's

conviction, but had however not been dissipated. There were no other

circumstances justifying his compensation claim.

On 30 December 1993 the Graz Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal against the decision of 7 April 1993.

The Court of Appeal confirmed that the conditions for compensation

under S. 2 para. 1 (b) of the Criminal Proceedings (Compensation) Act

were not met. The Court of Appeal noted that the applicant had been

co-driver in a stolen car on the occasion of transport of firearms.

The applicant's defence that he had merely been invited to a drive to

Germany had not been confirmed by the second suspect who had indicated

a destination in Austria. Moreover, firearms had been found underneath

the applicant's seat and in the side partition of the door on his side.

Finally, in the course of a search of his house in Slovenia, blank

school diplomas had been found. Having regard to all circumstances,

there was nothing to show that the applicant had been acting in good

faith. His release from detention on remand had been ordered on the

ground that the strong suspicion of his having committed the offences

concerned had ceased to exist. The Court of Appeal, referring to the

above statements, further observed that the applicant's detention on

remand had not been unlawful. The decision was served on

10 January 1994.

B. Relevant domestic law

The Criminal Proceedings (Compensation) Act (Strafrechtliches

Entschädigungsgesetz) provides for 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) lays down 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.

COMPLAINTS

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

about a violation of the presumption of innocence in that, despite the

discontinuation of the proceedings against him, the Austrian courts

assumed a continuing suspicion against him when rejecting his

compensation claims.

THE LAW

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

Convention that, despite the discontinuation of the criminal

proceedings against him, his compensation claims in respect of his

detention on remand were dismissed on the ground of a continuing

suspicion against him.

The Commission notes that on 20 January 1993 the criminal

proceedings against the applicant were discontinued, and that he only

subsequently filed his request for compensation regarding his detention

on remand. However, the Austrian court decisions refusing this request

were a direct sequel to the discontinuation of the criminal proceedings

against the applicant. Consequently, Article 6 para. 2 (Art. 6-2) may

in principle be invoked with regard to the impugned decisions (cf. Eur.

Court H.R., Englert judgment of 25 August 1985, Series A no. 123, p.

54, para. 35; Nölkenbockhoff judgment of 25 August 1985, Series A no.

123, p. 79, para. 35).

The Commission recalls that, following the discontinuation of

criminal proceedings, only statements which reflect the opinion that

the person concerned is guilty, and not statements which merely

describe a state of suspicion, infringe the presumption of innocence

(cf. Eur. Court H.R., Minelli judgment of 25 March 1983, Series A no.

62, p. 18, para. 37; Lutz judgment of 25 August 1987, Series A no. 123,

pp. 24-26, paras. 58-64; Sekanina judgment of 25 August 1993, Series

A no. 266, pp. 13-16, paras. 24-30).

In the present case, the Austrian courts concerned dismissed the

applicant's compensation claim on the ground that, though the

investigations against him had been discontinued, a suspicion

persisted. The applicant failed to show that the reasoning of the

Austrian courts amounted to any finding of criminal guilt.

The applicant's submissions in this respect do not, therefore,

disclose any appearance of a violation of the presumption of innocence

within the meaning of Article 6 para. 2 (Art. 6-2) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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REBRICA v. AUSTRIA

REBRICA v. AUSTRIA

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