Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12070/86

by Manfred BACH

against Austria

The European Commission of Human Rights sitting in private on

4 May 1987, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

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 25 February 1986

by Manfred BACH against Austria and registered on 1 April 1986 under

file No. 12070/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1953, and living in

Kaiserslautern. He is represented by Mr G. Schantl, a lawyer

practising in Ettlingen.

1. The applicant has lodged a previous application (No. 9661/82)

based on the following facts: From 30 January 1974 until

3 February 1975 he had been detained on remand in Austria on the

suspicion of being a drug pedlar and of having committed theft and

smuggling. An indictment against the applicant and some co-accused

was filed in January 1975. A trial started in May 1975 but, as the

applicant did not attend, the proceedings against him had to be

severed from the proceedings against his co-accused.

In February 1976 the Austrian proceedings against the

applicant were stayed in view of the fact that the charges levelled

against him had become the object of criminal proceedings instituted

against him in the Federal Republic of Germany. On 27 November 1980

the applicant was acquitted by the Kaiserslautern Regional Court

(Landgericht) on the ground that for factual reasons it could not be

established that the applicant had dealt with drugs. That judgment

became final.

In consequence of the above acquittal the Public Prosecutor in

Graz decided on 8 April 1981 that no further action would be taken

against the applicant.

On 8 July 1981 the competent chamber (Ratskammer) in criminal

matters of the Regional Court (Landesgericht) in Graz refused the

applicant's request for compensation under Section 2 (1)(b) of the

Austrian Act on Compensation in Criminal Matters (Strafentschädigungs-

gesetz). The Court held that the conditions for such a claim were not

fulfilled because the suspicion which had given rise to the

applicant's arrest and subsequent detention on remand had not been

invalidated by the judgment of the Kaiserslautern Court.

The applicant's appeal (Beschwerde) was rejected by the Court

of Appeal in Graz on 20 August 1981. The Court stated that it had not

been possible to hear the applicant personally in accordance with

Section 6 (3) of the Act on Compensation in Criminal Matters because

the applicant had not complied with several summonses issued by the

Austrian police. In view of the fact that the record

(Verhandlungsprotokoll) concerning the Kaiserslautern trial did not

contain the complete statements of the witnesses heard by the

Kaiserslautern trial court the Austrian appellate court pointed out

that it had to determine the applicant's claim mainly on the basis of

the evidence obtained in the Austrian investigation proceedings. The

appellate court inferred from these statements that the suspicion

against the applicant had not been invalidated by his acquittal.

A further appeal was rejected by the Supreme Court (Oberster

Gerichtshof) on 8 October 1981 as being inadmissible.

Another request for compensation under Section 2 (1)(a) of the

Act on Compensation in Criminal Matters was likewise rejected.

Before the Commission the applicant complained in his previous

application that his requests to acknowledge his compensation claim

were wrongly rejected without a public oral hearing, without a hearing

of witnesses, without communication to him of the comments submitted

by the Attorney General, and without public pronouncement of the

decisions. He invoked, in particular, Article 6 of the Convention.

The previous application was declared inadmissible by the

Commission on 14 July 1983. The Commission considered, inter alia,

that Article 6 of the Convention was not applicable to the proceedings

in question. It noted that claims under the Act on Compensation in

Criminal Matters did not require that a public official acted in a

guilty manner. Compensation could even be obtained where the law had

not been violated. Claims under the Act on Compensation in Criminal

Matters were therefore in no way assimilated or comparable to private

law claims for damages relating to tort liability. Furthermore it was

pointed out that the right to liberty, interferences with which can be

compensated according to the Act on Compensation in Criminal Matters,

was not a civil right within the meaning of Article 6 of the

Convention.

2. The present application is based on the following facts:

After the decision of the Austrian criminal court refusing

compensation for detention had become final, the applicant brought a

civil action before the Innsbruck Regional Court again claiming such

compensation. He argued that only the trial court which acquits a

defendant is competent to decide whether or not this defendant has a

compensation claim under Section 6 (2) of the Act on Compensation in

Criminal Matters. As he had been acquitted by a German court the

Austrian criminal court at Graz had not been competent to decide

whether or not he qualified for compensation. His claim, which was to

be considered as a civil right within the meaning of Article 6 para. 1

of the Convention, therefore had to be determined by a civil court.

The action was dismissed on 5 November 1983 on the ground that,

according to Section 6 (7) of the Act on Compensation in Criminal

Matters, the decision given in the preceding proceedings by the Court

of Appeal in Graz on 20 August 1981 was binding. The judgment of

5 November 1983 was confirmed by the Supreme Court on 16 September 1985.

This Court rejected the applicant's argument that the Austrian

criminal court could only give a binding decision under Section 6 (2)

of the Act on Compensation in Criminal Matters in relation to

circumstances established in the course of the investigation

proceedings in Austria while it was not competent to take evidence

with regard to circumstances leading to his acquittal by a German

court. The Supreme Court pointed out that under Article 3 of the

Treaty on Mutual Assistance in Legal Matters (Rechtshilfeüberein-

kommen) the Austrian criminal courts could have requested the

Kaiserslautern Regional Court to submit files or other documents as

evidence in the applicant's case. The Supreme Court further stated

that Section 6 (7) of the Act on Compensation in Criminal Matters was

compatible with constitutional provisions, in particular with Article

6 of the Convention. It considered the latter provision to be

applicable to the proceedings in question, stating that a claim by a

private person against the State for compensation for detention

on remand was a civil right as it had eventually to be determined by

the courts. It then stated that the binding effect of the decisions

given by the criminal courts would be incompatible with Article 6 of

the Convention only if the proceedings before the criminal courts

violated that provision. Referring to the Austrian reservation with

regard to Article 6 the Supreme Court considered, however, that the

proceedings in question did not violate any of the provisions of this

Article.

COMPLAINTS

The applicant complains that his civil action was rejected

without taking of evidence simply on account of the binding effect of

the decisions given by the Austrian criminal courts in proceedings

which in his opinion had not been in conformity with Article 6 of the

Convention. The proceedings before the criminal courts relating to his

claim for compensation under the Act on Compensation in Criminal

Matters violated Article 6 because:

- there had been no public oral hearing and no public pronouncement

of the decision;

- there had been no taking of evidence;

- he was not informed about the comments submitted by the Attorney

General.

Since the civil courts, being bound by the decisions of the

criminal court, could not correct the result obtained in the

proceedings before the criminal courts, he was again deprived of a

fair trial.

The applicant requests the Commission to reconsider, in the

light of the Austrian Supreme Court's case-law, its decision according

to which Article 6 is not applicable to proceedings concerning a claim

for compensation of a person who was acquitted of an accusation in

relation to which he had been detained on remand. He considers that

his present application is based on relevant new facts, mainly the

civil proceedings which he instituted subsequent to his previous

application.

THE LAW

The applicant has complained that, in view of the binding

effect of the decision given by an Austrian criminal court denying his

entitlement under Section 2 (1)(b) of the Act on Compensation in

Criminal Matters to compensation for his detention on remand, his

subsequent action for damages was likewise dismissed by the competent

Austrian civil courts without a fair hearing.

It is true that Article 6 para. 1 (Art. 6-1) of the Convention

secures to everyone the right to a fair and public hearing in the

determination of his civil rights and obligations. However, the

Commission, in its decision of 14 July 1983 rejecting the applicant's

previous application No. 9661/82, has held that Article 6 (Art. 6) of

the Convention does not apply to proceedings relating to compensation

claims under the Act on Compensation in Criminal Matters because

claims under this Act are "in no way assimilated or comparable to

private law claims for damages relating to tort liability" and can

therefore not be considered to constitute "civil rights" within the

meaning of Article 6 para. 1 (Art. 6-1). The Commission sees no

reason to depart from this jurisprudence. The fact that, as the

Austrian Supreme Court pointed out, a claim under the Act on

Compensation in Criminal Matters has to be determined by the courts,

is not in itself decisive for the qualification of the right in

question to be of private or public law character.

Moreover, the Commission considers that the binding effect

under Section 6 (7) of the Act on Compensation in Criminal Matters of

a decision given by a criminal court, finding no basis for

compensation under the Act in question, is compatible with Article 6

(Art. 6) of the Convention.

It follows that, the present application must, in any case, be

rejected as being manifestly ill-founded in the sense of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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