Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21835/93

by Manfred and Herlinde HAUSER

and Johannes WERNER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 16 March 1993 by

Mr. Manfred Hauser, Mrs. Herlinde Hauser and Mr. 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 deliberated;

Decides as follows:

THE FACTS

The applicants are Austrian citizen, living in Vienna and born

in 1957, 1959 and 1963, respectively. Before the Commission, they are

represented by Mr. T. Prader, a lawyer practising in Vienna.

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

applicants, may be summarised as follows.

A. Particular circumstances of the case

On 15 May 1991 the first and the second applicant 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 in

detention on remand. On 3 July 1991 the third applicant, suspected of

having forged the signature on the credit card and on the purchase

receipts, was also taken in detention on remand.

On 8 July 1991 the first and the second applicant, and on 19 July

1991 the third 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 all applicants, as a graphological expert found

that the third 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 sufficient recollection.

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

Regional Court dismissed the applicants' request for compensation for

the pecuniary damage sustained on account of their having been kept in

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

Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz).

It found that there still remained a suspicion against all three

applicants.

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

gericht), in private session, after having heard the Senior Public

Prosecutor's Office (Oberstaatsanwaltschaft), dismissed the applicants'

appeal (Beschwerde). It 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, the

applicants had not refuted the suspicion existing against them, nor was

this suspicion otherwise dissipated.

The Court of Appeal further considered that the applicants'

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 applicants' innocence.

The decision was served on 3 November 1992.

It appears that criminal proceedings against the third applicant

have been resumed.

B. Relevant domestic law

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.

If the said courts find that the conditions under S. 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, which 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).

COMPLAINTS

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

Convention that they were refused compensation for their detention on

remand and also about the proceedings concerned. They complain in

particular that they did not have a public hearing before the Judges'

Chamber and the Court of Appeal and that the Courts' decisions were not

pronounced in public. Moreover, they complain that the Court of Appeal

decided after having heard an official of the Senior Public

Prosecutor's Office. They also complain that their requests for the

taking of evidence had not been complied with.

2. Under Article 6 para. 2 of the Convention the applicants complain

about a breach of the presumption of innocence, as the Vienna Court of

Appeal considered that they had to prove their innocence in order to

be awarded compensation, although the criminal proceedings against them

had already been discontinued.

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 the first and the second applicant wished to withdraw

their application.

THE LAW

1. As regards the first and the second applicant, the Commission

notes that, by letter of 7 March 1994, their lawyer submitted that they

did not wish to pursue their petition. Consequently, the Commission

only remains confronted with the complaints brought by the third

applicant.

2. The third 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.

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

determine the admissibility of these complaints and that it is

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

Rules of Procedure, to give notice of these complaints to the

respondent Government.

3. The third applicant further complains under Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention that the Vienna Court of Appeal refused

to hear the proposed witnesses and to take the proposed evidence. The

Commission has examined this complaint under Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission, even assuming that Article 6 (Art. 6) applies to

the proceedings in question, recalls that this provision does not give

an absolute right to the examination of every witness proposed by the

defence (Eur. Court H.R., Engel and others judgment of 6 June 1976,

Series A no. 22, p. 38, para. 91; Bricmont judgment of 7 July 1989,

Series A no. 158, p. 31, para. 89).

In the present case, the applicant proposed to take evidence and

to examine witnesses on their statements upon which the Public

Prosecutor's Office had originally based its information. The Court of

Appeal, considering that the insufficient recollection of these

witnesses had inter alia led to the discontinuation of the proceedings,

dismissed these motions, on the ground that they could not provide any

clarification.

In these circumstances, the Commission finds no indication that

the Vienna Court of Appeal, by rejecting the applicant's requests to

take evidence, failed to consider relevant evidence or acted in an

arbitrary and unfair manner.

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.

4. The third applicant further complains under Article 6 para. 2

(Art. 6-2) of the Convention that the Vienna Court of Appeal

disregarded the presumption of innocence when refusing his claim for

compensation in that, despite the discontinuation of proceedings, they

found that a suspicion against him continued to exist.

The Commission notes that on 24 February 1992 the criminal

proceedings against the third applicant were discontinued and that the

applicant subsequently filed his requests for compensation regarding

his detention on remand. The decisions of the Judges' Chamber of the

Vienna Regional Court and the Vienna Court of Appeal 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,

paras. 24-30, to be published in Series A no. 266).

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.

It follows that this part of the application is also manifestly

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

Convention.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN its examination of the application as regards

the third 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;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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HAUSER and WERNER v. AUSTRIA

HAUSER and WERNER v. AUSTRIA

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