Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20111/92

by Bernhard KLEINLERCHER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 12 January 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

G.B. REFFI

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 14 April 1992 by

Bernhard KLEINLERCHER against Austria and registered on 11 June 1992

under file No. 20111/92;

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 is an Austrian national born in 1965 and residing

in Vienna. Before the Commission he is represented by Mr. Pochieser,

a lawyer practising in Vienna.

On 11 August 1988, in the course of the evacuation of a building

in Vienna, which was to be demolished, various persons tried to prevent

the demolition and resisted the police enforcing the evacuation. Nine

police officers were injured. The offenders escaped to a nearby

building which was then cordoned off. This building was the applicant's

place of residence.

On the following morning, on the basis of an oral arrest warrant

issued by the Investigating Judge at the Vienna Regional Court (Landes-

gericht), the applicant and numerous other persons were arrested and

detained. Mr. Pochieser was the applicant's counsel in the ensuing

criminal proceedings.

On 14 August 1988 the Investigating Judge opened preliminary

investigations (Voruntersuchung) against the applicant. Furthermore,

he ordered the applicant's detention on remand. Referring to S. 180

para. 2 of the Code of Criminal Procedure (Strafprozeßordnung), the

Investigating Judge found that there was a reasonable suspicion that

the applicant, together with accomplices, had committed the offence of

resisting a public official in the exercise of official authority

(Widerstand gegen die Staatsgewalt), of having caused bodily harm to

police officers and of having participated in a riot on 11 August 1988.

There was also reasonable suspicion that he again committed the offence

of resisting a public official in the exercise of official authority

on 12 August 1988. He also considered that there was a danger of

collusion, danger of repetition of the offences and a danger of the

applicant's absconding.

On 25 August 1988 the applicant was released from detention on

remand on the ground that, following the subsequent police

investigations, no reasonable suspicion persisted.

On 4 November 1988 the Investigating Judge at the Vienna Regional

Court discontinued the criminal proceedings against the applicant.

On 30 November 1988 the applicant filed two requests for

compensation regarding his detention, referring to S. 2 para. 1 (a)

of the Criminal Proceedings (Compensation) Act (Strafrechtliches

Entschädigungsgesetz), which concerns cases of unlawful arrest and

detention, and to S. 2 para. 1 (b) of this Act, which concerns cases

of acquittal or otherwise discontinuation of criminal proceedings.

These requests were dealt with by different courts in two sets of

proceedings.

On 7 February 1990, in the first set of proceedings, the Judges

Chamber (Ratskammer) of the Vienna Regional Court, referring to S. 2

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

the applicant's claim for compensation regarding the discontinuation

of the investigations against him.

On 28 June 1990 the Vienna Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal against the decision of

7 February 1990. 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. In particular, the suspicion against

the applicant had not been dissipated.

On 12 December 1990, in the second set of proceedings, the Vienna

Court of Appeal, sitting as court of first instance, dismissed the

applicant's claim for compensation under S. 2 para. 1 (a) of the

Criminal Proceedings (Compensation) Act. The Court of Appeal considered

that the applicant's arrest had been lawful and the detention on remand

had been justified.

On 26 September 1991 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's appeal against the Court of Appeal's decision

of 12 December 1990. The Supreme Court confirmed that at the time of

the applicant's arrest there had been a strong suspicion that he had

taken part in supplying Molotov cocktails, weapons, and other objects

to be used in resisting the police officers, and that he had thus, by

aiding and abetting the resistance, been directly involved in the

criminal offences committed on the occasion of the evacuation. This

decision was served on 14 October 1991.

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 regarding pecuniary damages resulting from detention

on remand

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) mentions 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

1. The applicant complains under Article 5 paras. 1 and 5 of the

Convention about his allegedly unlawful arrest and detention on remand

and the refusal of compensation in this respect.

2. He 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,

in particular the Supreme Court, assumed a continuing suspicion against

him when rejecting his compensation claims. He also invokes Article 6

paras. 1 and 3 in this respect.

3. The applicant further complains under Article 8 of the Convention

about identification measures (erkennungsdienstliche Maßnahmen)

allegedly taken by the police upon his arrest.

THE LAW

1. The applicant complains under Article 5 para. 1 (Art. 5-1) of the

Convention about his arrest and detention on remand. He further invokes

Article 5 para. 5 (Art. 5-5) of the Convention regarding the refusal

of compensation for his allegedly unlawful arrest and detention in the

proceedings before the Vienna Court of Appeal and the Supreme Court.

The Commission notes that the applicant was arrested on the basis

of an arrest warrant issued by the Investigating Judge at the Vienna

Regional Court, and taken into detention on remand under S. 180 of the

Austrian Code of Criminal Proceedings. The Investigating Judge

suspected the applicant of having committed various offences in the

course of the events on 11 and 12 August 1988. There is no indication

that the applicant's deprivation of liberty was not "lawful" and "in

accordance with a procedure prescribed by law" within the meaning of

Article 5 para. 1 (Art. 5-1).

The remaining issue is whether there existed a reasonable

suspicion, as required under Article 5 para. 1 (c) (Art. 5-1-c). A

"reasonable suspicion" presupposes the existence of facts or

information which would satisfy an objective observer that the persons

concerned may have committed the offence (Eur. Court H.R., Fox,

Campbell and Hartley judgment of 30 August 1990, Series A no. 182, p.

16, para. 32).

The Commission notes that the Investigating Judge, in his

decision of 14 August 1988, referred in some detail to the applicant's

role in the events on 11 and 12 August 1989. His reasoning as to the

suspicion against the applicant was confirmed by the Vienna Court of

Appeal and the Supreme Court in the ensuing compensation proceedings

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

In the circumstances of the present case, the Commission is

satisfied that, on the basis of the investigation results at the early

stage of the proceedings, there had been sufficient ground to suspect

that the applicant had committed various criminal offences in the

course of the above-mentioned events. Consequently, there had been a

"reasonable suspicion' against him within the meaning of Article 5

para. 1 (c) (Art. 5-1-c) of the Convention.

Accordingly, there is no appearance of a violation of the

applicant's right to liberty under Article 5 para. 1 (Art. 5-1) of the

Convention.

The question of compensation under Article 5 para. 5 (Art. 5-5)

of the Convention does not, therefore, arise.

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 applicant further complains under Article 6 para. 2

(Art. 6-2) of the Convention that, despite the discontinuation of the

criminal proceedings against him, the Vienna Court of Appeal, in its

decision of 12 December 1990, and the Supreme Court, in its decision

of 26 September 1991, rejected his compensation claims on the ground

of a continuing suspicion against him.

The Commission, even assuming compliance with the six-months'

time-limit under Article 26 (Art. 26) of the Convention, notes that on

4 November 1988 the criminal proceedings against the applicant were

discontinued, and that the applicant filed his request for compensation

regarding his detention on remand on 30 November 1988. The decisions

of the Vienna Court of Appeal and the Supreme Court 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.

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

disclose any appearance of a violation of the further rights invoked

by him.

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.

3. The applicant finally complains under Article 8 (Art. 8) of the

Convention about identification measures taken by the Austrian police

authorities upon his arrest. The applicant failed to substantiate this

matter. The Commission, even assuming compliance with Article 26

(Art. 26) of the Convention, finds no indication that any interference

with the applicant's right to respect for his private life in this

respect, could not be regarded as justified under Article 8 para.

2 (Art. 8-2). Consequently, there is no appearance of a violation of

the right invoked by the applicant. Accordingly, this complaint is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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KLEINLERCHER v. AUSTRIA

KLEINLERCHER v. AUSTRIA

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