FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64077/00 by Helmut FELLNER against Austria

The European Court of Human Rights (First Section) , sitting on 10 October 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 11 September 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Helmut Fellner, is an Austrian national, who was born in 1940 and lives in Graz (Austria). He is represented before the Court by Mr. W. Vacarescu, a lawyer practising in Graz (Austria).

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 19 November 1998 the Graz Regional Court ( Landesgericht ) imposed detention on remand on the applicant. He was suspected of aggravated robbery ( schwerer Raub ). On 3 December 1998 and 28 December 1998 the Graz Regional Court ordered the continuation of the detention.

On 14 January 1999 Graz Court of Appeal ( Oberlandesgericht ) allowed the applicant’s appeal against the decision of 28 December 1998. Subsequently he was released.

On 19 November 1999 the Graz Public Prosecutor’s Office ( Staatsanwaltschaft ) requested to discontinue the proceedings against the applicant. Further it requested the Graz Regional Court to state that the requirements under the Criminal Proceedings Compensation Act ( Strafrechtliches Entschädigungsgesetz ) for a compensation for detention had not been met.

On 25 November 1999 the Graz Regional Court discontinued the proceedings against the applicant as it found no further reason to prosecute him.

On 15 December 1999 the applicant was heard by the court concerning the Public Prosecution’s request of 19 November 1999 and on the same day he requested compensation for the detention on remand under the Criminal Proceedings Compensation Act.

On 25 January 2000 the Review Chamber of the Graz Regional Court ( Ratskammer ), sitting in camera, dismissed the applicant’s request for compensation. It found that the suspicion against the applicant had not been dissipated.

On 10 February 2000 the applicant appealed against this decision and requested a public hearing. He submitted that the Review Chamber wrongly assessed the evidence and that the suspicion had been dissipated. Moreover, he alleged that the reasoning of the Review Chamber was insufficient. He did not argue that the Review Chamber’s reasoning violated the presumption of innocence.

On 22 February 2000 the Senior Public Prosecutor’s Office ( Oberstaatsanwaltschaft ) submitted that no compensation should be awarded to the applicant.

On 2 March 2000 the Graz Court of Appeal, sitting in camera, dismissed the applicant’s appeal. It found that the suspicion against the applicant had not been dissipated due to conflicting statements of the applicant and of witnesses. This decision was served on 15 March 2000.

B. Relevant domestic law and practice

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 Sections 2 and 3. Section 2 § 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.

Section 6 § 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 Section 2 § 1 (b) and Section 3 are met.  If criminal proceedings are discontinued by decision of the investigating judge, the Review 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.

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 Review Chambers and before the Courts of Appeal (in proceedings upon appeals ( Beschwerden ) against decisions of the Review Chambers).

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that no public hearing was held in the course of the compensation proceedings.

He also complains under Article 6 § 2 of the Convention that the courts’ reasoning when refusing his compensation claim disregarded the presumption of innocence.

Finally he relies on Article 5 claiming that the courts failed to grant compensation for his detention.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that he did not have a public hearing in the compensation proceedings.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

2. The applicant further complains under Article 6 § 2 of the Convention that the Austrian courts 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. Article 6 § 2 reads as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court notes that the applicant did not complain about a violation of the presumption of innocence in his appeal against the Review Chamber’s decision. However, even assuming exhaustion of domestic remedies, the complaint is inadmissible for the following reason.

The Court 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. Minelli judgment of 25 March 1983, Series A no. 62, p. 18, § 37; Lutz judgment of 25 August 1987, Series A no. 123, pp. 24-26, §§ 58-64; Sekanina judgment of 25 August 1993, §§ 24-30, Series A no. 266; AG v. Austria (Dec.), no. 30624/96, 4.9.1996; Mulaj and Sallahi v. Austria (Dec.), no. 48886/99, 27.6.2002).

In the present case, the Austrian courts concerned dismissed the applicant’s compensation claim on the ground that, although the investigations against him had been discontinued, a suspicion persisted. In the Court’s view, such a finding does not amount to a finding of guilt contrary to Article 6 § 2.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. Finally, the applicant relies on Article 5 of the Convention claiming that the courts failed to grant him compensation for his detention. Article 5 § 5 of the Convention, insofar as relevant, reads as follows:

"5. Everyone who has been the victim of arrest of detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

The Court recalls that Article 5 § 5 of the Convention is only applicable if the Convention organs themselves or a national authority have established that the detention of a person constituted a violation of his rights under Article 5 §§ 1 to 4 (No. 6821/74, Dec. 5.7.76, D.R. 6, p. 65 at p. 70; No. 10371/83, Dec. 6.3.85, D.R. 42, p. 128; Brogan and others judgment of 29 November 1988, Series A no. 145-b, p. 35, § 66).

The Court notes that the applicant did not complain either before the domestic courts or in the present proceedings before the Court that his arrest and detention had been contrary to Article 5 §§ 1 to 4 of the Convention.

The Court concludes that, since no violation of Article 5 §§ 1 to 4 has been alleged by the applicant, the question of compensation under Article 5 § 5 of the Convention does not arise, as neither the domestic courts nor the Court itself have established a violation of Article 5 §§ 1 to 4 as regards the applicant’s detention on remand .

It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the lack of public hearing;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President