FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35437/97 by Musa DEMIR against Austria

The European Court of Human Rights, sitting on 13 September 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto ,

Mr W. F uhrmann, Mr V. Butkevych , Mrs N. Vajić , Mr M. Pellonpää , Mrs S. Botoucharova , judges , and  Mr. V. B erger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 March 1997 and registered on 25 March 1997,

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 and the supplementary observations submitted by the respondent Government and the observations in reply to the latter submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Musa Demir, is a Turkish national , born in 1959 and living in Vienna. He is represented before the Court by Mr T. Prader, a lawyer practising in Vienna. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 29 November 1992 the applicant was arrested on suspicion of attempted blackmail and unlawful possession of a firearm. Subsequently, he was taken into detention on remand. He was suspected of having tried to blackmail Turkish restaurant owners in that he together with several accomplices, all being members of a Kurdish association, came to their restaurants and threatened them in order to obtain money for this association. Further, the applicant was suspected of unlawful possession of a firearm, which had been found in a car he used to drive. In these and the following proceedings the applicant was represented by counsel.

On 3 August 1993 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) sitting with a single judge ( Einzelrichter ) convicted the applicant of attempted blackmail and unlawful possession of a firearm and sentenced him to nine months’ imprisonment suspended on probation. The applicant was released, as his detention on remand had already lasted nine months.

On 31 March 1995 the Vienna Regional Criminal Court, in a second set of proceedings following successful appeal proceedings, held a hearing at which it heard the applicant and his co-accused as well as a number of witnesses. At the close of the hearing the Regional Court acquitted the applicant and his co-accused giving them the benefit of the doubt. The prosecution did not appeal against the acquittal. Therefore, in accordance with the relevant procedural provisions, it was not necessary to serve a written version of the judgment on the applicant, but it was sufficient to include its operative part without any reasons in the minutes of the hearing (so-called abridged version of minutes and judgment - Protokolls-vermerk und gekürzte Urteilsausfertigung ).

On 3 October 1995 the Vienna Regional Criminal Court, after a first decision on the applicant’s compensation claim for detention on remand under section 2 (1)(b) the Compensation (Criminal Proceedings) Act 1969 ( Strafrechtliches Entschädigungsgesetz 1969 , hereinafter “the 1969 Act”) had been quashed on appeal, heard the applicant in private. The applicant stated that he did not have any further evidence. On 16 October 1995 the Regional Court again dismissed the applicant’s compensation claim.

On 26 February 1996 the Vienna Court of Appeal ( Oberlandesgericht ), upon the applicant’s appeal, quashed the Regional Court’s decision on the ground that it did not contain sufficient reasons. As to the applicant’s complaint that the decision violated the presumption of innocence it noted that the European Court of Human Rights in the Sekanina v. Austria judgment of 25 August 1993  (Series A no. 266-A) had not challenged the conformity with Article 6 § 2 of the Convention of section 2 (1)(b) of the 1969 Act. Following an acquittal it was still admissible to examine the question whether the suspicion had been dispelled as long as the assessment did not go beyond the reasons given for the acquittal. It, therefore, instructed the Regional Court to state the reasons for the acquittal of the applicant, which were not included in the abridged version of minutes and judgment of 31 March 1995.

Thereupon, the Regional Court supplemented the minutes accordingly, stating that the evidence before it did not carry a finding of guilt. As to the charge of attempted blackmail it noted that in the second set of proceedings the witnesses, namely the restaurant owners concerned, had given a weakened version of their previous statements. They said in particular that the applicant and his accomplices had not directly menaced them and that they had only been frightened as the applicant and his co-accused clearly asked for money and announced that they would return. Although the witnesses now tried to describe the incidents at issue as favourably to the accused as possible and although their statements were insufficient for a conviction, they had disproved the defence of the applicant who had claimed that he had only come to the respective restaurants to distribute posters without ever having requested donations. As to the second charge the court found that the evidentiary basis was insufficient to prove that only the applicant had access to the car in which the firearm had been found.

On 25 March 1996, the Vienna Regional Criminal Court again dismissed the applicant’s compensation claim under section 2 (1) (b) of the 1969 Act. Its main line of argument ran as follows:

“For his part, the applicant stated that he had not collected any donations at the material time. However, in the light of the witnesses’ testimony that point of his defence was revealed to be untrue. It follows that he lied in order to conceal something. Even if, in view of the very much weakened witness evidence, a conviction was no longer possible as the principle of the ‘benefit of the doubt’ had to be applied in the accused’s favour, it cannot be said that the suspicion attaching to the applicant and the other defendants acquitted with him was entirely dispelled in the second set of proceedings. As stated in the full reasoning of the decision [of 31 March 1995], the witnesses gave the impression that they now wished to exonerate the accused - particularly the applicant - but on the basis of their testimony the possibility that they felt threatened when the accused demanded money from them cannot be excluded.”

On 10 April 1996 the applicant appealed against this decision. He complained that the Regional Court had, in the criminal proceedings, only taken evidence against him and had, in the subsequent compensation proceedings, failed to take - on its own motion - further evidence on the question whether or not the suspicion against him had been dissipated. He also contested the Regional Court’s finding that the suspicion against him had not been dissipated. In his view the witnesses heard at the trial had cleared him of all suspicion. He was, thus, not in a position to propose further evidence.

On 30 August 1996 the Vienna Court of Appeal, sitting in camera, as in all the  previous proceedings, dismissed the applicant’s appeal. It found in essence that the Regional Court’s decision was duly based on the reasons given for the acquittal:

“As clearly emerges from the full reasoning of its judgment, the trial court acquitted the applicant solely because in the second set of  proceedings the restaurant owners departed from their previous depositions, which had strongly incriminated him, in such a manner that the requisite standard of proof of guilt could not be met. However, in its reasoning, the trial court makes clear reference to a number of circumstances ‑ duly supported by the evidence in the case file - which meant that the suspicion attaching to the applicant had not been entirely dispelled. In particular the judge states that during the trial he formed the personal impression that, in view of the specific manner in which the applicant and his fellows had acted, the prosecution witnesses had good, objectively-founded reason to fear reprisals in form of violent attacks if they did not make the donations demanded.”

The Court of Appeal further noted that the applicant had himself stated to have no further evidence which could dissipate the suspicion. Thus, the Regional Court had not been called upon to take supplementary evidence.

This decision was served on the applicant’s counsel on 11 September 1996.

Following communication of the present application to the respondent Government, the Procurator General filed a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) with the Supreme Court ( Oberster Gerichtshof ).

On 7 June 2000 the Supreme Court found that the courts’ failure to hold a public hearing and to pronounce their decisions publicly violated section 6 §§ 3 and 4 of the 1969 Act taken in conjunction with Article 6 § 1 of the Convention. It, therefore, quashed the Vienna Regional Criminal Court’s decision of 25 March 1996 as well as the decision of 30 August 1996 by the Vienna Court of Appeal and remitted the case to the Regional Court.

On 31 July 2000 the Vienna Regional Criminal Court, after having held a public hearing, again dismissed the applicant’s compensation claim. At the close of the hearing the judge pronounced the decision orally. In the written version of the decision the court used exactly the same wording for a reasoning as it had already used in its previous decision of 25 March 1996 (see above).

On 15 September 2000 the Vienna Court of Appeal, sitting in private, dismissed the applicant’s appeal. It confirmed the Regional Court’s view that the suspicion against the applicant had not been dissipated, using the same reasoning as in it previous decision of 30 August 1996 (see above).

B. Relevant domestic law and practice

The relevant provisions of the Compensation (Criminal Proceedings) Act 1969 read as follows:

Section 2

“(1) A right to compensation arises: ...

(b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or the prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested;

...”

Section 6

“(2) A court which acquits a person or otherwise frees him from prosecution ... (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions for compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3. ...

(4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally a on the public prosecutor ...”

In its judgment of  29 September 1994 the Constitutional Court ruled on the constitutionality of section 2 (1)(b) of the 1969 Act. It found that this provision in itself did not violate Article 6 § 2 of the Convention which, under Austrian law, had the force of constitutional law. In the light of the Sekanina v. Austria judgment (of 25 August 1993, Series A no. 266-A), it held that it was not the refusal of a claim for compensation which was contrary to the Convention, but the re-examination of the question of guilt after a final acquittal. In the Constitutional Court’s view only the separate re-assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence. Nevertheless, the Constitutional Court observed that it would be desirable to amend section 2 (1)(b) of the 1969 Act in order to clarify the law.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that, in the proceedings concerning compensation for detention on remand, he did not have a public hearing either before the Vienna Regional Criminal Court or before the Vienna Court of Appeal.

Further he complains under Article 6 § 1 that the compensation proceedings were unfair. He submits in particular that in the preceding criminal proceedings only incriminating evidence was taken. In the compensation proceedings he was no longer in a position to offer exonerating evidence. Moreover, it was contradictory to find in the criminal proceedings that the evidence did not carry a finding of guilt while stating in the compensation proceedings that the suspicion against him had not been dissipated.

Finally, the applicant complains under Article 6 § 2 of the Convention that the Vienna Regional Criminal Court as well as of the Vienna Court of Appeal, dismissing his compensation claim, violated the presumption of innocence in that they found despite his final acquittal that there was a continuing suspicion against him.

THE LAW

1. The applicant initially complained about the lack of a public hearing in the proceedings concerning his compensation claim for detention on remand. He relied on Article 6 § 1, which, so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal established by law. Judgment shall be pronounced publicly ...”

The Government, with whom the applicant agrees, submit that the applicant can no longer claim to be a victim of the alleged violation. They point out that, following the Supreme Court’s decision of 7 June 2000, the Vienna Regional Criminal Court held a public hearing on 31 July 2000 including a public prounouncement of its decision.

Having regard to these circumstances, the Court finds that the applicant can no longer claim to be a victim of the alleged violation, as required by Article 34 of the Convention.

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.

2. The applicant also complains under Article 6 § 1 about the alleged unfairness of the compensation proceedings. He submits in particular that in the preceding criminal proceedings only incriminating evidence was taken and claims that in the compensation proceedings he was no longer in a position to offer exonerating evidence.

The Court notes that the applicant, assisted by counsel, was heard in the compensation proceedings and was given the opportunity to adduce evidence. It follows from his submissions that he did not consider himself in a position to propose further evidence, as - in his view - the witnesses heard at the trial had cleared him of all suspicion. The Court, thus, finds no indication that the applicant could not duly forward his arguments or that the proceedings were otherwise unfair.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant complains that the courts failed to respect the presumption of innocence when deciding on his compensation claim. He invokes Article 6 § 2 of the Convention which reads as follows:

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

The Government contend that the present case has to be distinguished from the above-cited Sekanina v. Austria case. What was decisive in that case was that the courts, deciding on the compensation claim, assessed the question whether the suspicion against the accused had been dissipated on the basis of the file, thereby replacing the jury’s evaluation of the evidence. In the present case, the courts did no more than repeating the reasons given in the supplement to the abridged version of the Regional Court’s judgment of 31 March 1995 without making any re-assessment of the applicant’s guilt. Referring to the Constitutional Court’s judgment of 29 September 1994, the Government argue that in these circumstances there was no violation of Article 6 § 2 of the Convention.

The applicant did not make any submissions on this point.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint that the courts deciding on his compensation claim for detention on remand violated the presumption of innocence ;

Declares inadmissible the remainder of the application.

Vincent B erger Georg Ress Registrar President