FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48886/99 by Fadil MULAJ and Arben SALLAHI against Austria

The European Court of Human Rights (First Section), sitting on 27 June 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić ,

Mr A. Kovler ,

Mr V. Zagrebelsky ,

Mrs E. Steiner , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced on 19 March 1999,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicants, Fadil Mulaj and Arben Sallahi , are Austrian nationals, who were born in 1967 and 1976 respectively and live in Deutschlandsberg (Austria). They are represented before the Court by Mr. W. Vacarescu , a lawyer practising in Graz (Austria).

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

On 8 May 1998 the Graz Regional Court ( Landesgericht ) issued warrants of arrest against the applicants. They were suspected of dangerous threat ( gefährliche Drohung ), of aggravated fraud ( schwerer Betrug ) and of using false documents ( Urkundenfälschung ). They were arrested on 11 May 1998.

On 12 May 1998 the Regional Court imposed detention on remand on the applicants. They appealed against this decision.

On 20 May 1998 the Regional Court held a hearing on the continuation of the detention on remand ( Haftverhandlung ). On the same day, the Court of Appeal ordered the applicants to be released. It found that, due to the conflicting testimonies of the witnesses, there was no longer any strong suspicion that the applicants had committed the above mentioned offences.

On 19 June 1998 the Regional Court discontinued the proceedings against the applicants as it found no further reason to prosecute the applicants.

In the meantime, on 9 June 1998 the applicants requested compensation under the Criminal Proceedings Compensation Act ( Strafrechtliches Entschädigungsgesetz ).

On 25 June the applicants were heard.

On 12 August 1998 the Review Chamber ( Ratskammer ), sitting in camera, dismissed the applicants’ request for compensation. It found that the suspicion against the applicants had not been refuted.

The applicants appealed against this decision and requested a public hearing of their appeal. They submitted, that the Review Chamber wrongly assessed the evidence and that the suspicion had been refuted. Moreover, they alleged that the reasoning of the Review Chamber was insufficient. They did not claim that the Review Chamber’s reasoning violated the presumption of innocence.

On 31 August 1998 the Senior Public Prosecutor’s Office ( Oberstaatsanwaltschaft ) submitted that no compensation should be awarded to the applicants.

On 10 September 1998 the Graz Court of Appeal ( Oberlandesgericht ), sitting in camera, dismissed the applicants appeal. It found that the suspicion against the applicants had not been refuted due to conflicting testimonies of the applicants and of witnesses. Moreover, it found that a public hearing was not provided under the applicable law and that the applicants had been heard before the first instance.

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 applicants complain under Article 6 § 1 of the Convention that no public hearing was held in the course of the compensation proceedings.

They also complain under Article 6 § 2 of the Convention that the courts’ reasoning when refusing their compensation claim disregarded the presumption of innocence.

They also invoke Article 5 claiming that the courts failed to grant them compensation for their detention.

THE LAW

1. The applicants complain under Article 6 § 1 of the Convention that they 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 applicants further complain under Article 6 § 2 of the Convention that the Austrian courts disregarded the presumption of innocence when refusing their claim for compensation in that, despite the discontinuation of proceedings, they found that a suspicion against them 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 applicants did not complain about a violation of the presumption of innocence in their 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. Eur . Court H.R., 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; A.G. v. Austria, application no. 30624/96, Commission decision of 4 September 1996).

In the present case, the Austrian courts concerned dismissed the applicants’ compensation claim on the ground that, although the investigations against them 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 applicants invoke Article 5 of the Convention claiming that the courts failed to grant them compensation for their 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; Eur . Court H.R. Brogan and others judgment of 29 November 1988, Series A no. 145-b, p. 35, § 66).

The Court notes that the applicants did not complain either before the domestic courts or in the present proceedings before the Court that their 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 applicants, 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 applicants’ 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 applicants’ complaint concerning the lack of a public hearing;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President