FIRST SECTION

DECISION

Application no. 39989/98 by Mamadou Yaya BARRY against Austria

The European Court of Human Rights, sitting on 14 March 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 28 July 1997 and registered on 23 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mamadou Yaya Barry, is a Guinean national, who was born in 1970 and lives in Vienna . He was represented before the Court by Mr G. Liedermann, a lawyer practising in Vienna.

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

On 22 September 1994 the applicant was remanded in custody on suspicion of having committed, inter alia, the offence of attempting to resist State authority ( Widerstand gegen die Staatsgewalt ).

On 24 November 1994 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ), sitting with a single judge, acquitted the applicant of all charges against him. It found that it was impossible to establish the applicant’s guilt since the depositions of the witnesses heard had been contradictory on some crucial points.

Immediately after the pronouncement of the acquittal the applicant requested compensation under the Criminal Proceedings Compensation Act ( Strafrechtliches Entschädigungsgesetz ) for unlawful detention. The court dismissed the applicant’s claim. It found that the suspicion against the applicant had not been refuted and that he was only acquitted in dubio pro reo.

On 23 December 1994 the applicant filed an appeal with the Vienna Court of Appeal ( Oberlandesgericht ) and requested several defence witnesses to be heard in order to establish his innocence.

On 29 February 1996 the Vienna Court of Appeal quashed the Regional Court’s decision and referred the case back to it. It found that, although the witnesses’ contradictory submissions were a sufficient basis for the applicant’s acquittal, they were insufficient to find that the suspicion against the applicant had been dissipated.

On 2 November 1996 the Vienna Regional Criminal Court, after hearing new witnesses in private, without a public hearing, in the applicant’s absence, again dismissed the applicant’s claim. It found that the suspicion against the applicant was still not dispelled.

On 18 December 1996 the applicant filed an appeal with the Vienna Court of Appeal against this decision and requested the hearing of further defence witnesses. He complained that the other witnesses had been heard in his absence, that the record of their testimony had not been transmitted to him, and that Section 2 § 1 (b) of the Criminal Proceedings Compensation Act was not in conformity with Article 6 § 2 of the Convention.

On 25 February 1997 the Vienna Court of Appeal confirmed the Regional Court decision. It considered that the applicant only had a right to compensation for his detention on remand if his innocence had been proved, which was not the case. Furthermore, the court found that the applicant had failed to substantiate his complaints about the alleged failure to hear certain witnesses or to transmit to him the recorded testimony of other witnesses, since the applicant had not submitted details justifying a different assessment of the evidence already obtained by the Regional Court.

On 17 April 2001 the Procurator General filed a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) with the Supreme Court. On 22 May 2001 the Supreme Court found that the courts’ failure to hold a public hearing and to pronounce their decisions in the compensation proceedings publicly violated Article 6 § 1 of the Convention. It therefore quashed the Regional Court’s and the Court of Appeal’s decisions and remitted the case to the Regional Court for a fresh examination.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that the compensation proceedings were unfair. He submitted that no public hearing was held in the course of these proceedings, that witnesses were questioned in his absence and that the courts failed to take the evidence which he requested.

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

THE LAW

The Court observes that by letter of 18 December 2001 the applicant informed the Court that by decision of 22 May 2001 the Supreme Court set aside the decisions of the Vienna Regional Criminal Court of 2 December 1996 and of the Vienna Court of Appeal of 25 February 1997 and remitted the case to the Vienna Regional Criminal Court for deciding again on the applicant’s compensation claim. The Court recalls the terms of Article 37 § 1 of the Convention which, so far as relevant, reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(b) the matter has been resolved;..

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

In the present case the Court finds that the matter has been resolved since the applicant’s complaints relate to proceedings which have been quashed by the Supreme Court. The Court also considers that respect for human rights as defined in the Convention does not require a continuation of the examination of the case. It, therefore, decides to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Erik Fribergh Christos Rozakis Registrar President