Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20602/92

by Zoltan SZÜCS

against Austria

The European Commission of Human Rights sitting in private on

23 October 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 August 1992 by

Zoltan SZÃœCS against Austria and registered on 9 September 1992 under

file No. 20602/92;

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

of Procedure of the Commission;

Having regard to the Commission's decision of 29 June 1994 to

declare the application partly inadmissible and to communicate the

remainder of the application to the respondent Government for

observations on its admissibility and merits;

Having regard to the observations submitted by the respondent

Government on 11 October 1994 and the observations in reply submitted

by the applicant on 9 December 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

parties, may be summarised as follows.

The applicant is a Hungarian national, born in 1971 and residing

in Halaszetelek (Hungary). Before the Commission he is represented by

Mr. T. Schreiner, a lawyer practising in Eisenstadt (Austria).

A. The particular circumstances of the case

On 8 October 1990 the investigating judge of the Wiener Neustadt

Regional Court (Kreisgericht) opened preliminary investigations and

issued a warrant of arrest (Haftbefehl) against the applicant and three

others for suspicion of aggravated professional fraud committed between

9 and 31 May 1990 in Austria. The investigating judge found that there

existed a danger of absconding as the suspects had no fixed abode in

Austria and had left Austria after having committed the offences they

were suspected of. He further found that there existed a danger of

collusion as it was unclear how the suspects had come into possession

of the credit card of Mrs. S.K. which was used in committing the

offences.

On 25 February 1991 the applicant was arrested upon his entry

into Austria at the Austrian-Hungarian border.

On 26 February 1991 an investigating judge at the Eisenstadt

Regional Court questioned the applicant, who stated that he had only

accompanied the other suspects on a trip to Italy as their driver and

had never been present when they went shopping. The investigating

judge ordered the applicant's detention on remand. Referring to the

warrant of arrest of 8 October 1990, he found that there was a

reasonable suspicion that the applicant together with other suspects

had committed aggravated fraud by buying goods of a value of some

200.000 AS in different shops in Austria with a stolen credit card

(issued to Mrs. S.K.). According to information received from

Interpol, the applicant together with three other suspects had been

arrested on 31 May 1990 in Italy and had then been found in possession

of the stolen credit card. After an interrogation by the Italian

police the applicant had been expelled from Italy. The investigating

judge also considered that there was a danger of collusion, a danger

of the applicant absconding and a danger of commission of new offences.

On 4 April 1991 the applicant was heard again by the

investigating judge.

On 12 April 1991 the public prosecutor requested that the expert

opinion of a graphologist be taken for ascertaining whether the

applicant had signed the credit card purchase receipts.

On 15 April 1991 the applicant requested that an ex officio

defence counsel be appointed and waived his right to a hearing with a

view to the examination of the lawfulness of his detention on remand

(Haftprüfungsverhandlung). On the same day the investigating judge

ordered that a defence counsel be appointed for the applicant, that a

graphologist prepare an expert report within 10 days and had samples

of the applicant's handwriting taken.

On 6 May 1991 the graphological expert stated that the signatures

on the purchase receipts were unlikely to have been made by the

applicant. On the same day, upon a request by the public prosecutor,

the investigating judge decided to discontinue the criminal proceedings

and ordered the applicant's release from detention on remand.

On the same day the applicant requested compensation for his

detention.

On 8 May 1991 the Judges' Chamber (Ratskammer) at the Wiener

Neustadt Regional Court dismissed the applicant's claim for

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

Compensation Act (Strafrechtliches Entschädigungsgesetz). The Judges'

Chamber found that at the time of the applicant's arrest a serious

suspicion against him had existed. Criminal proceedings had been

discontinued against him because clear evidence could not be produced.

Nevertheless a serious suspicion against him continued to exist.

On 17 May 1991 the applicant again requested that compensation

be granted pursuant to S. 2 para. 1 (b) of the Criminal Proceedings

Compensation Act.

On 27 May 1991 the applicant appealed against the decision of

8 May 1991 to the Vienna Court of Appeal (Oberlandesgericht). He

submitted, inter alia, that the Judges' Chamber's finding according to

which a serious suspicion against him continued to exist violated the

principle of presumption of innocence. He also submitted that the

length of his detention had been unreasonable and requested

compensation for unlawful detention under S. 2 para. 1 (a) of the

Criminal Proceedings Compensation Act in this respect.

On 9 January 1992 the Court of Appeal dismissed the applicant's

appeal. It found that, as the other suspects could not be traced in

Austria, it had been necessary to establish whether the signatures on

the purchase receipts with the credit card had been made by the

applicant, who could have disguised himself as a woman on the occasion

of the purchases. The graphological expert had only indicated that

the signatures were unlikely to have been made by the applicant.

Furthermore, there was still the suspicion that he had aided and

abetted the other suspects. Therefore, the suspicion against the

applicant had not been dissipated.

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

dismissed the applicant's claim for compensation for unlawful detention

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

The applicant did not appeal to the Supreme Court (Oberster

Gerichtshof) against this decision.

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 repetition of the offences.

2. Compensation for pecuniary damage 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).

3. Inspection of files under S. 82 of the Code of Criminal

Procedure

According to S. 82 of the Code of Criminal Procedure it is left

to the discretion of the courts, in other cases than those mentioned

specifically in the Code of Criminal Procedure, to grant leave to third

parties for inspection of a file if they show that the inspection is

necessary for raising a claim for compensation or for other reasons.

COMPLAINTS

The applicant's remaining complaint under Article 6 para. 1 of

the Convention concerns the fact that in the respective compensation

proceedings, the Court of Appeal's decisions were not pronounced

publicly as required by this provision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 August 1992 and registered

on 9 September 1992.

On 29 June 1994 the Commission decided to communicate the

applicant's complaint under Article 6 para. 1 of the Convention as

regards the lack of a public pronouncement of the Court of Appeal's

decision and declared inadmissible the remainder of the application.

The Government's written observations were submitted on 11

October 1994. The applicant replied on 9 December 1994.

THE LAW

1. The applicant complains that in the respective compensation

proceedings, the Court of Appeal's decision was not pronounced publicly

as required by Article 6 para. 1 (Art. 6-1) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, reads as follows:

"(1) In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law. Judgment shall be pronounced publicly ..."

2. The Government submit that with regard to the claim for

compensation under S. 2 para. 1 (a) of the Criminal Proceedings

Compensation Act the applicant failed to exhaust domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention as he did

not appeal against the decision of the Court of Appeal of 9 January

1992 to the Supreme Court. As regards the applicant's claim under S.

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

applicant also did not exhaust domestic remedies. Although he appealed

against the Judges' Chamber's decision of 8 May 1991, he neither

requested an oral hearing nor submitted that the lack of an oral

hearing would violate Article 6 para. 1 (Art. 6-1) of the Convention.

The applicant acknowledges that with regard to his claim under

S. 2 para. 1 (a) of the Criminal Proceedings Compensation Act he failed

to appeal to the Supreme Court. As regards the claim under S. 2 para.

1 (b) of the Criminal Proceedings Compensation Act he submits that a

request for holding a public hearing was not possible since the

relevant law does not provide for a hearing.

The Commission finds that the question whether the applicant

could and should have asked for an oral hearing and public

pronouncement of the courts' decisions in the compensation proceedings

and whether he could have raised this issue at all in an appeal to the

Supreme Court are matters related to the merits of the complaint and

cannot be determined at this stage of the proceedings.

The Commission therefore considers that the complaint cannot be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention for

non-exhaustion of domestic remedies.

3. As regards the applicability of Article 6 para. 1 (Art. 6-1), the

Government submit that the proceedings under the Criminal Proceedings

Compensation Act concern a public law claim. They point out that the

Commission, in the case of Bach v. Austria (No. 9661/82, Dec. 14.7.83,

D.R. 34 p. 127) did not apply Article 6 (Art. 6) to proceedings under

the Criminal Proceedings Compensation Act, finding that the claim is

not comparable to claims under the Law on Damages, as is does not

require a punishable conduct by a civil servant or a violation of the

law at all. Moreover, the proceedings under the Criminal Proceedings

Compensation Act, as far as they are conducted by the criminal courts,

are only of a preparatory nature. Once the criminal courts have decided

on the validity of a compensation claim, compensation has to be

requested from the Federal Government, represented by the Department

of Finance. If the Department does not decide within six months or if

it refuses the claim, action must be brought before the civil courts.

Therefore, the outcome of the contested proceedings was not directly

decisive for the applicant's civil rights. The applicant contests this

view.

The Government further consider that the applicant's complaint

regarding the lack of a public pronouncement of the courts' decisions

in the compensation proceedings is covered by the Austrian reservation

to Article 6 (Art. 6) of the Convention which provides as follows:

"The provision of Article 6 (Art. 6) of the Convention

shall be so applied that there shall be no prejudice to the

principles governing public court hearings laid down in

Article 90 of the 1929 version of the Federal

Constitutional Law."

The Government submit that the Austrian reservation is in

accordance with Article 64 (Art. 64) of the Convention. The relevant

provision excluding public pronouncement of the court's decision on the

claim for compensation was in force at the time the reservation was

made. Although the Criminal Proceedings Compensation Act dates from

1969, also the previous Act of 19 August 1918 on Compensation for

Detention Pending Investigation provided in S. 3 para. 1 that the

State's obligation to pay compensation should be determined by a

decision which shall not be made public but shall be served on the

person affected. Furthermore the reservation is sufficiently specific

for the purpose of Article 64 (Art. 64) of the Convention. As regards

the requirement of the "brief statement of the law" the reservation

reproduces almost literally the contents of Article 90 of the Federal

Constitution. From these words it can be deduced that the reservation

refers to procedural laws in the judicial sphere which contain

regulations concerning the publicity of proceedings deviating from

Article 6 (Art. 6) of the Convention. The applicant contests this

view.

As regards the compliance with Article 6 para. 1

(Art. 6-1) of the Convention, the Government submit that the Vienna

Court of Appeal when deciding on the applicant's appeal could take its

decision on the basis of the file. According to the Convention organs'

case-law a public hearing, including the public pronouncement of a

decision, is only necessary when a court is concerned with establishing

the facts.

The Government, referring to the Sutter judgment of the Court,

(Eur. Court H.R., Sutter judgment of 22 February 1984, Series A no. 74)

finds that the requirement of public pronouncement of the decision was

met because third parties could be given access to the files and be

allowed to make copies, if they proved a legitimate interest.

The applicant submits that the possibility that third parties

inspect the file cannot replace the public pronouncement of decisions,

since it requires that these persons must demonstrate a legitimate

interest in the outcome of the proceedings at issue.

After an examination of this issue in the light of the parties'

submissions, the Commission considers that it raises questions of fact

and law, including questions concerning the Austrian reservation to

Article 6 (Art. 6) of the Convention, which can only be determined by

an examination of the merits. It follows that this complaint cannot be

declared inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for inadmissibility have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE the remainder of the application, without

prejudging the merits.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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SZÜCS v. AUSTRIA

SZÜCS v. AUSTRIA

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