Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21835/93

by Johannes WERNER

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 16 March 1993 by

Johannes WERNER against Austria and registered on 12 May 1993 under

file No. 21835/93;

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 2 September 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 18 November 1994 and the observations in reply submitted

by the applicant on 22 December 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, living in Vienna and born

in 1963. Before the Commission, he is represented by Mr. T. Prader, a

lawyer practising in Vienna.

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

parties, may be summarised as follows.

A. Particular circumstances of the case

On 15 May 1991 M.H. and H.H. were arrested on the suspicion of

having fraudulently used the credit card of a third person for

purchases in several shops in Vienna and were taken into detention on

remand. On 3 July 1991 the applicant, suspected of having forged the

signature on the credit card and on the purchase receipts, was also

taken into detention on remand.

On 8 July 1991 M.H. and H.H., and on 19 July 1991 the applicant,

were released from detention.

On 24 February 1992, by decision of the Investigating Judge of

the Vienna Regional Court (Landesgericht), criminal proceedings were

discontinued against M.H., H.H. and the applicant, as a graphological

expert had found that the applicant was not likely to be the author of

the signatures on the purchase receipts and as the Public Prosecutor's

witnesses did not have a sufficient recollection.

Meanwhile, on 4 February 1992 the Public Prosecutor's Office

(Staatsanwaltschaft) had requested the Regional Court to decide that

M.H., H.H. and the applicant were not entitled to compensation for

detention on remand, pursuant to S. 2 para. 1 (b) of the Criminal

Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz),

as the suspicion against M.H., H.H. and the applicant had not been

dissipated.

On 21 April 1992 the Investigating Judge heard M.H., H.H. and the

applicant and informed them about the Public Prosecutor's Office's

request of 4 February 1992. They filed a claim for compensation for

detention on remand.

On 3 June 1992 the Judges' Chamber (Ratskammer) of the Vienna

Regional Court, sitting in camera, dismissed the claim for compensation

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

No representative of the Public Prosecutor's Office was present at the

deliberations. The Judges' Chamber found that there still remained a

suspicion against M.H., H.H. and the applicant.

On 15 June 1992 M.H., H.H. and the applicant appealed against the

Judges' Chamber's decision. In their appeal they requested the taking

of further evidence, in particular the hearing of witnesses.

On 2 September 1992 the Senior Public Prosecutor's Office

(Oberstaatsanwaltschaft) submitted written observations on the appeal.

It found that the appeal would have to be dismissed. The Senior Public

Prosecutor's Office also submitted that it was not necessary to take

further evidence as the statements of the witnesses requested could not

lead to the dissipation of the suspicion. These observations were not

served on M.H., H.H. and the applicant.

On 29 October 1992 the Vienna Court of Appeal (Oberlandes-

gericht), sitting in camera, dismissed the appeal. No representative

of the Senior Public Prosecutor's Office was present at the

deliberations.

The Court of Appeal considered that the criminal proceedings had

been discontinued as no sufficient evidence could be produced, but

that, nevertheless, a suspicion persisted. Such a discontinuation did

not suffice to give rise to a claim for compensation under the relevant

provision of the Compensation Act, as, according to the constant

jurisprudence of the Austrian courts, it had to be established that the

person concerned was not punishable. However, in the present case,

M.H., H.H. and the applicant had not refuted the suspicion existing

against them, nor was this suspicion otherwise dissipated.

The Court of Appeal further considered that the requests for the

taking of further evidence and for the questioning of the witnesses on

which the Public Prosecutor had based his information could not have

helped to elucidate the facts. The Court noted that the criminal

proceedings had been discontinued due to the insufficient recollection

of these witnesses. Their statements could, therefore, not have proven

the innocence of M.H., H.H. and the applicant.

The decision was served on 3 November 1992.

B. Relevant domestic law

1. 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 (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. 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. If criminal proceedings are discontinued by decision

of the investigating judge, the Judges' Chamber decides on a request

for compensation. In these proceedings the detained person has to be

heard and, if necessary, evidence has to be taken. The detained and the

Prosecutor's Office have a right to appeal to the superior court which

can take, if necessary, further evidence. 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.

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). The final decision in the proceedings under the

Compensation Act is binding on the civil courts, whose task is to

assess the damage the person concerned has sustained on account of his

having been kept in detention.

Generally, no public hearings are conducted before the Judges'

Chambers and before the Courts of Appeal (in proceedings upon appeals

(Beschwerden) against decisions of the Judges' Chambers). Both decide

in private session, after having heard the Public Prosecutor's Office

or the Senior Public Prosecutor's Office, respectively (S. 32 para. 1

and S. 35 para. 2 of the Code of Criminal Procedure).

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

Procedure

According to Section 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 complaints under Article 6 para. 1 of

the Convention concern the lack of a public hearing in the compensation

proceedings before the Judges' Chamber of the Vienna Regional Court and

the Vienna Court of Appeal, the failure of these courts to pronounce

publicly their decisions and an alleged infringement of the principle

of equality of arms in the proceedings before the Court of Appeal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 March 1993 and registered

on 12 May 1993.

By letter of 7 March 1994, the applicants' lawyer informed the

Commission that M.H. and H.H. wished to withdraw their application.

On 2 September 1994 the Commission decided to communicate the

applicant's complaints relating to the lack of a public hearing and of

a public pronouncement of the decisions and about a breach of the

principle of equality of arms in the proceedings before the Judges'

Chamber of the Vienna Regional Court and the Vienna Court of Appeal and

declared inadmissible the remainder of the application.

The Government's written observations were submitted on 18

November 1994. The applicant replied on 22 December 1994.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he did not have a public hearing in the compensation

proceedings before the Judges' Chamber of the Vienna Regional Court and

the Vienna Court of Appeal. He also complains that, in the

compensation proceedings, the courts' decisions were not pronounced

publicly as required by this provision. Moreover, he claims that the

principle of equality of arms was infringed in the proceedings before

the Court of Appeal.

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

relevant, read 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 the applicant failed to exhaust

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention. Although he appealed against the decision of the Judges'

Chamber of 3 June 1992, he neither requested an oral hearing nor

expressly relied on Article 6 para. 1 (Art. 6-1) of the Convention.

Moreover, the application must be considered as premature since

criminal proceedings against the applicant and others have been re-

opened or might be re-opened and therefore the requirements of claiming

compensation under the Criminal Proceedings Compensation Act have not

yet been fully clarified.

This is contested by the applicant, who submits that he had

appealed against the decision of the Judges' Chamber to the Court of

Appeal and in his appeal had invoked Article 6 (Art. 6) of the

Convention. Furthermore there are no indications that the criminal

proceedings will actually be re-opened.

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

are matters related to the merits of the complaint and cannot be

determined at this stage of the proceedings.

Furthermore, the Commission cannot see how the fact that criminal

proceedings against the applicant and others have or might have been

re-opened has a bearing on the present application.

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 it 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 hearing including the 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 Section 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 lack of an oral hearing in the compensation

proceedings the Government submit that according to the Convention

organs' case-law a public hearing is only necessary when a court is

concerned with establishing the facts, which is primarily the task of

a first instance court, while no hearing is necessary before a second

instance court deciding merely issues of law. For the purpose of the

compensation claim the underlying criminal proceedings must be

considered as first instance proceedings, while the compensation

proceedings themselves must be conceived as second instance proceedings

in which only questions of law are determined. Moreover, since the

applicant in the compensation proceedings did not explicitly ask for

a public hearing he must be deemed to have waived his right to such a

hearing.

As regards the lack of a public pronouncement of the decision

given in the course of the compensation proceedings, the Government,

referring to the Sutter judgment of the Court, find that the

requirement of public pronouncement of the decision was met because

third parties could be given access to the files and allowed to make

copies, if they prove a legitimate interest. Moreover, the lack of a

public pronouncement of decisions on compensation claims under the

Criminal Proceedings Compensation Act would be justified since such a

decision could contain the statement that a suspicion against a person

continued to exist, which, in the light of the presumption of

innocence, is inadvisable.

This is contested by the applicant. He submits that in the

proceedings under the Criminal Proceedings Compensation Act not merely

legal questions have to be resolved but facts have also to be

established. Moreover, no public hearing was held in the criminal

proceedings because they had been discontinued. His failure to request

a public hearing cannot be considered as a waiver of such a right

because the relevant provisions do not provide for an oral hearing.

As regards the alleged violation of the principle of equality of

arms, the Government submit that this principle has not been infringed

in the compensation proceedings. Neither before the Judges' Chamber

nor before the Court of Appeal a representative of the Public

Prosecutor's Office and of the Senior Public Prosecutor's Office

respectively attended the deliberations of the court. In the

proceedings at first instance the applicant was confronted with the

Public Prosecutor's Office's request of 4 February 1992. In the appeal

proceedings the observations of the Senior Public Prosecutor were not

served on the applicant. However, it was not necessary to let the

applicant comment on the Senior Public Prosecutor's statement as it

contained no new arguments.

The applicant submits that in the proceedings before the Court

of Appeal he could not reply to the submissions of the Senior Public

Prosecutor because he was not aware of them. The principle of equality

of arms required that he could see for himself whether the submissions

of the Senior Public Prosecutor did not contain any new arguments and

whether it was necessary for him to reply thereto.

After an examination of these issues in the light of the parties'

submissions, the Commission considers that they raise 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 the remainder of the

application 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, by a majority,

DECLARES ADMISSIBLE the remainder of the application, without

prejudging the merits.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

Menu

WERNER v. AUSTRIA

WERNER v. AUSTRIA

LEXI