AS TO THE ADMISSIBILITY OF

                      Application No. 22034/93

                      by A.M., A.N.and T.F.

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

           MM.   C.L. ROZAKIS, President

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 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 28 May 1993 by

A.M., A.N. and T.F. against Austria

and registered on 10 June 1993 under file No. 22034/93;

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

of Procedure of the Commission;

     Having regard to the observations submitted by the respondent

Government on 13 January 1995 and the observations in reply submitted

by the applicants on 31 March 1995, after an extension of the

time-limit;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts of the case as submitted by the parties may be

summarised as follows.

     The applicants are Iranian nationals. They were born in 1965,

1962, and 1957 respectively. They are all residing in Vienna. In the

proceedings before the Commission, they are represented by Mr. Vana,

a lawyer practising in Vienna.

A.   The particular circumstances of the case

     On 14 January 1991 the Federal Ministry for the Interior (Bundes-

ministerium für Inneres) requested the Investigating Judge at the

Vienna Regional Criminal Court (Landesgericht), for permission to

intercept the first applicant's telephone line. The Ministry submitted

that, according to a "reliable source", the applicant, together with

other persons, was suspected of having, in the night of 12 to

13 January 1991, planned a conspiracy (Bandenbildung) to commit

terrorist attacks in Austria. The Investigating Judge thereupon ordered

that the first applicant's telephone be tapped for a period of two

weeks.

     On 18 January 1991 the Investigating Judge ordered the search of

the applicants' respective premises (Hausdurchsuchung) and issued

warrants of arrest (Haftbefehle) against them for suspicion of

conspiracy to commit terrorist attacks. In the case of all three

applicants, he found that there was a danger of absconding, as they

were foreigners having no links with Austria, a danger of collusion,

as the investigations had not yet been concluded and a danger of

committal of the offenses at issue.

     On 19 January 1991 the applicants were arrested and subsequently

questioned by officers of the Federal Ministry for the Interior. They

all confirmed that a meeting had taken place in the night of 12 to

13 January, but denied that they had planned any attacks.

     On 22 January 1991 the Investigating Judge at the Vienna Regional

Criminal Court, having heard the applicants as suspects, ordered their

detention on remand. The Investigating Judge noted the applicants'

statements, according to which they had refugee status in Austria, and

also confirming the statements they had made before the officers of the

Ministry for the Interior. Nevertheless, the Investigating Judge found

that there were serious grounds for suspecting the applicants of having

participated in a conspiracy to commit terrorist attacks including

murder, assault and aggravated damage to property. Moreover, there was,

in the case of all three applicants, a danger of collusion as the

investigations had to be continued as well as a danger that the

applicants might commit the offenses in question. In the case of the

first and the third applicant there was also a danger of absconding as

they were foreigners and had no particular links with Austria.

     On 24 January 1991 Mr. Vana, who assisted the applicants in these

and in the following proceedings, filed a request for their release

from detention on remand. He submitted in particular that there were

no serious grounds for suspecting the applicants of conspiracy. The

applicants were supporters of the People's Modjahedin, which was the

reason why they had to flee from Iran and had been granted refugee

status in Austria, but had nothing to do with terrorist attacks.

     On 30 January 1991 the Investigating Judge, on the Public

Prosecutor's request of the same day, released the applicants from

detention on remand.

     On 9 January 1992 the Investigating Judge, on the Public

Prosecutor's request of 13 December 1991, decided to discontinue the

proceedings for lack of sufficient evidence. The same day the Public

Prosecutor requested that the applicants should not be granted

compensation under the Criminal Proceedings Compensation Act (Straf-

rechtliches Entschädigungsgesetz), as the suspicion against them had

not been dissipated.

     On 29 June 1992 the applicants requested compensation under S. 2

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

submitted in particular that the suspicion against them had been

unfounded and that it had not been proved that they had committed the

offence of which they were suspected.

      On 12 August 1992 the Judges' Chamber (Ratskammer) at the Vienna

Regional Criminal Court dismissed the applicants' request.

     The Judges' Chamber noted that the Ministry's Special Branch

(Staatspolizei) had received information from a reliable police

informer that, in the night from 12 to 13 January 1991, there was a

meeting of fourteen members of the People's Modjahedin, including the

applicants, in the first applicant's apartment in Vienna. S., a leader,

who had come from Germany, had allegedly talked about terrorist

activities in Austria. Subsequently, he had asked each member of the

group to either go back to the Middle East to fight against the United

States on the side of Iraq or to start fighting against Iranian and

American institutions in Austria.

     The Judges' Chamber further found that the telephone tapping,

which had subsequently been ordered, had confirmed the suspicion

against the applicants. Moreover, the applicants had, in the course of

the preliminary investigations, not denied that they had participated

in the meeting. The first applicant had also stated that he was the

People's Modjahedin's contact person in Austria. They had also

confirmed that their leader, S., had tried to oblige them to fight, but

denied that they had had the intention to participate in any attacks.

The Judges' Chamber considered that although the proceedings had been

discontinued for lack of evidence, however, doubts had remained. Thus,

the suspicion of conspiracy had not been dissipated. Therefore, the

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

Proceedings Compensation Act had to be dismissed.

     On 1 September 1992 the applicants appealed against this decision

relating to their claim under S. 2 para. 1 (b) of the Criminal

Proceedings Compensation Act. They argued in particular that the

decision to take them into detention on remand relied mainly on the

submissions of the informer referred to in the Ministry's request of

14 January 1991. As he had remained anonymous, they had not had the

opportunity to confront his allegations. However, the submissions of

the police informer did not contain serious grounds for suspecting them

of having planned a conspiracy to commit terrorist attacks. The results

of the telephone tapping, which had been made available to their

lawyer, had not confirmed any suspicion against them either. Moreover,

they had always stated that they were innocent.

     Further, the applicants requested the Vienna Court of Appeal to

grant them compensation under S. 2 para. 1 (a) of the same Act,

alleging that their detention on remand had been unlawful, as there had

been no serious reasons to suspect them of conspiracy.

     On 23 November 1992 the Vienna Court of Appeal (Oberlandes-

gericht) dismissed the applicants' appeal against the decision of

12 August 1992 regarding their claim under S. 2 para. 1 (b) of the

Criminal Proceedings Compensation Act. It repeated the reasons already

given by the Judges' Chamber. Moreover, the Court of Appeal, referring

to statements made by the applicants, found that in the present case

it had not been possible to exclude that the applicants had been the

victims of defamation. While the proceedings had been discontinued for

lack of sufficient proof, doubts had remained. However, compensation

under S. 2 para. 1 (b) was only due if it was established that the

suspect was not liable to prosecution or that there was a bar to

prosecution as regards the offence he had been suspected of. This

decision was served on 30 November 1992.

     On 16 December 1992, the Vienna Court of Appeal, sitting as a

court of first instance on this matter, dismissed the applicants'

request under S. 2 para. 1 (a). The applicants did not further pursue

these proceedings.

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 offences.

2.   Compensation regarding pecuniary damages resulting from detention

     on remand

     The Criminal Proceedings Compensation Act (Strafrechtliches

Entschädigungsgesetz), according to S. 1, provides for financial

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) relates to the case of unlawful detention on remand.  S. 2

para. 1 (b) concerns the cases 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.  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 injured person has to file a request with the Department of

Finance (Finanzprokuratur) for acknowledgement 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

1.   The applicants complain under Article 6 paras. 1 and 3 (d) of the

Convention that the proceedings relating to their compensation claim

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

regarding their detention on remand were unfair. They submit in

particular that the suspicion against them was raised by an anonymous

witness, i.e. a police informer, whom they could not examine and whose

credibility they could therefore not put into doubt. Moreover, the

Courts were not in a position to critically assess the police

informer's submissions.

2.   The applicants further complain under Article 6 para. 2 that the

Austrian Courts, applying S. 2 para. 1 (b) of the Criminal Proceedings

Compensation Act, violated the presumption of innocence as they

requested that the suspicion against them be dissipated.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 28 May 1993 and registered on

10 June 1993.

     On 12 October 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on

13 January 1995. The applicants replied on 31 March 1995, after an

extension of the time-limit.

     On 28 February 1995 the Commission granted the applicants legal

aid.

THE LAW

1.   The applicants complain under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention that the proceedings relating to

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

Proceedings Compensation Act regarding their detention on remand were

unfair.

     Article 6, (Art. 6) so far as relevant, reads as follows:

     "1.   In the determination of his civil rights ..., everyone is

     entitled to a fair ... hearing ... .

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

     d.    to examine or to have examined witnesses against him and to

     obtain the attendance and examination of witnesses on his behalf

     under the same conditions as witnesses against him;"

a.   The Government submit that the applicants failed to exhaust

domestic remedies as regards their request under S. 2 para. 1 (a) of

the Criminal Proceedings Compensation Act.

     The Commission notes that the applicants' complaint only relates

to their request under S. 2 para. 1 (b) of the Criminal Proceedings

Compensation Act. In this respect, it is not disputed that the

applicants exhausted domestic remedies.

b.   As regards the applicability of Article 6 (Art. 6), the

Government submit that the contested proceedings concern a public-law

claim, which is not comparable to claims under the law of damages, as

it is neither dependent on the misconduct of a public servant nor on

any other violation of the law (B. v. Austria No. 9661/82, Dec.

14.7.83, D.R. 34 p. 127). Further, the present case has to be

distinguished from the case of A.M. and J.v.Z. v. the Netherlands,

Comm. Report 4.7.94. Under Austrian law, the decisions taken by the

criminal courts are only of a preparatory nature. Once they find that

the compensation claim is well-founded in principle, it has to be

asserted before the Federal Department of Finance and eventually before

the civil courts. Thus, the contested decisions were not directly

decisive for the applicants' civil rights.

     The applicants refer in particular to S. 1 of the Criminal

Proceedings Compensation Act, which states that this Act provides for

financial compensation regarding pecuniary damages resulting from

detention on remand. Therefore, the right at issue is pecuniary in

nature and, thus, constitutes a civil right within the meaning of

Article 6. Moreover, they argue that the contested proceedings were

directly decisive for their civil rights, as the proceedings before the

criminal courts are an indispensable requirement for asserting the

compensation claim.

     The Commission recalls that Article 6 para. 1 (Art. 6-1) extends

to disputes (contestations) over a "right" which can be said, at least

on arguable grounds, to be recognised under domestic law. The dispute

must be genuine and serious; it may relate not only to the actual

existence of a right but also to its scope and the manner of its

exercise; and finally, the result of the proceedings must be directly

decisive for the right in question (see Eur. Court H.R., Zander

judgment of 25 November 1993, Series A no. 279-B, p. 38, para. 22). As

regards the question whether a right is of a "civil" character, the

Commission further recalls that it is sufficient that the action is

pecuniary in nature and is founded on an alleged infringement of rights

which are likewise pecuniary rights (Eur. Court H.R., Éditions

Périscope judgment of 26 March 1992, Series A no. 234-B, p. 66, para.

40).

     In the present case, the applicants were under Austrian law

entitled to compensation for detention on remand under the condition

that the requirements laid down in Section 2 and 3 of the Criminal

Proceedings Compensation Act were met. Unlike in the case of Masson and

Van Zon, the award of compensation did not depend on the discretion of

the competent court or that reasons in equity exist therefor (Eur.

Court H.R., Masson and Van Zon judgment of 28 September 1995, para. 51,

to be published in Series A no. 327). The Commission therefore finds

that the applicant had a right to compensation recognised under

domestic law.

     Furthermore, there was a dispute over this right. The applicants

claimed that they were entitled to compensation under S. 2 para. 1 (b)

of the Criminal Proceedings Compensation Act, while the competent

criminal courts found that the requirements laid down in the said Act

were not met. According to S. 6 of the Criminal Proceedings

Compensation Act, the decision taken by the criminal courts is binding.

Irrespective of the necessity of further procedural steps, their

outcome was, therefore, directly decisive for the applicants' right to

compensation. Further, the compensation claim asserted by the

applicants, in accordance with S. 1 of the Criminal Proceedings

Compensation Act, concerned financial compensation for pecuniary

damages resulting from detention on remand. Therefore, the right at

issue was a "civil right" within the meaning of Article 6 (Art. 6) of

the Convention.

c.   As regards the compliance with Article 6 (Art. 6), the Government

submit that the applicants, when complaining that the anonymous police

informer was not heard as a witness, can only rely on paragraph 1 but

not on paragraph 3 (d) of this Article (Art. 6-1, 6-3-d), as the latter

provision only applies to criminal proceedings. Moreover, the right to

have witnesses summoned or heard is not an absolute one. The applicants

failed to show why the examination of the police informer could have

led to a complete dissipation of the suspicion against them. Finally,

the Government argue that the applicants did not explicitly request an

examination of the police informer and have thus waived their right to

hear him.

     The applicants rely on Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d). They submit that they were denied compensation for

their detention on remand on the ground that the suspicion against them

had not been dissipated. They argue that the proceedings were unfair,

as they could not examine the anonymous police informer and, thus,

could not show possible contradictions in his submissions or otherwise

test his credibility. They concede that it may be permissible in

criminal proceedings not to hear an anonymous police informer. However,

in civil proceedings relating to compensation for detention on remand,

it should be for the Government to prove that the suspicion was well-

founded, in particular in a case like the present one, in which the

State is in possession of the relevant evidence.

     The Commission recalls that it is not called upon to substitute

its own assessment of the facts for that of the national courts. The

Convention organs' task is to ascertain whether the proceedings in

their entirety, including the way in which evidence was permitted, were

"fair" within the meaning of Article 6 para. 1 (Art. 6-1) (Eur. Court

H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263, p.

21, para. 66; Dombo Beheer B.V. judgment of 27 October 1993, Series A

no. 274, p. 19, para. 32).

     In the present case the Commission has to examine the fairness

of civil proceedings, namely compensation proceedings relating to the

applicants' detention on remand.

     The Commission recalls that the requirements inherent in the

concept of "fair hearing" are not necessarily the same in cases

concerning the determination of civil rights and obligations, as they

are in cases concerning the determination of a criminal charge. This

is borne out by the absence of detailed provisions such as paragraphs

2 and 3 of Article 6 (Art 6-1, 6-3)applying to cases of the former

category. Thus, although these provisions have a certain relevance

outside the strict confines of criminal law, the Contracting States

have greater latitude when dealing with civil cases, than they have

when dealing with criminal cases. Nevertheless, the requirement of

"equality of arms", in the sense of a "fair balance" between the

parties, applies in principle to such cases as well as to criminal

cases. "Equality of arms" implies that each party must be afforded a

reasonable opportunity to present his case - including the evidence -

under conditions that do not place him at a substantial disadvantage

vis-à-vis his opponent. Thereby, it is for the national authorities to

ensure in each individual case that the requirements of a "fair

hearing" are met (Eur. Court H.R., Dombo Beheer B.V. judgment, loc.

cit., paras. 32-33).

     The question at issue in the contested compensation proceedings

was whether or not the suspicion against the applicants had been

dissipated. The suspicion of having planned a conspiracy to commit

terrorist attacks had been raised by a police informer, whose

submissions were contained in the report by the Federal Ministry for

the Interior of 14 January 1991. The Public Prosecutor, when requesting

that the criminal proceedings against the applicants be discontinued,

found that this suspicion had not been dissipated and that the

applicants, therefore, should not be granted compensation. The

applicants in their request for compensation considered that the

suspicion had been unfounded.

     The Judges' Chamber at the Vienna Regional Criminal Court, in its

decision of 12 August 1992, noted that the suspicion against he

applicants had been raised by a police informer. It also had regard to

the results of the telephone tapping and the applicants' own statements

as suspects during the preliminary investigations in which they

admitted that they had participated in a meeting of Peoples'

Modjahedin, but denied the planning of terrorist attacks. In

conclusion, the Judges' Chamber found that the suspicion against the

applicants had not been dissipated. In their appeal, the applicants

argued in particular that the suspicion against them could neither be

inferred from the police informer's submissions, nor from the results

of the telephone tapping. Moreover, they had always claimed their

innocence. They also complained that they did not have the opportunity

to confront the allegations raised by the police informer as he had

remained anonymous. However, the Vienna Court of Appeal did not follow

the applicants' arguments and confirmed the decision of the Judges'

Chamber on 23 November 1992.

     The Commission finds that the applicants, represented by counsel,

had the opportunity to comment on the view of the Public Prosecutor,

who appears as the representative of the State as a defendant in the

compensation proceedings. Both parties could refer to evidence produced

in the preliminary investigations in support of their respective views.

In these circumstances, the Commission finds that the applicants were

not substantially restricted in presenting their arguments as compared

to the Public Prosecutor.

     Moreover, the Commission observes that the applicants did not

request that the police informer be examined as a witness either before

Judges' Chamber at the Vienna Regional Court or before the Vienna Court

of Appeal.

     Having regard to all material before it, the Commission finds no

sufficient grounds to form the view that there were any special

circumstances which could prompt the conclusion that the failure by the

Austrian courts to hear the police informer was incompatible with the

requirements of a fair hearing within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

     It follows that this part of the application is manifestly ill-

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

Convention.

2.   The applicants complain under Article 6 para. 2 (Art. 6-2) that

the Austrian Courts' decision to refuse them compensation for their

detention on remand violated the presumption of innocence.

     Article 6 para. 2 (Art. 6-2) reads as follows:

     "Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to law."

     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

(see Eur. Court H.R., Sekanina judgment of 25 August 1993, Series A

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

     In the present case, the Austrian Courts dismissed the

applicants' compensation claim on the ground that, although the

proceedings against them had been discontinued, the suspicion had not

been dissipated. The Commission finds that the applicants failed to

show that the reasoning of the Austrian Courts amount to any finding

of guilt.

     It follows that this part of the application must be rejected as

being 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)