THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38549/97 by Snjezana VOSTIC against Austria

The European Court of Human Rights, sitting on 19 June 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mrs   S. D ollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 22 September 1997 and registered on 12 November 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 submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Snjezana Vostic, is an Austrian national , born in 1966 and living in Austria. She is represented before the Court by Mr C. Schwab, a lawyer practising in Wels. 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 10 April 1996 the applicant was arrested and on 12 April the Wels Regional Court ( Landesgericht ) remanded her in custody on suspicion of murder. Her repeated requests for release remained unsuccessful. On 13 December 1996 the Wels Regional Court, sitting as an assize court ( Geschwornengericht ), composed of three professional judges and an eight member jury, acquitted the applicant. The jury answered the main question as to murder with six votes “no” and two votes “yes”. In the record of its deliberations ( Niederschrift ), the jury gave the following reasons for its decision: “The evidence produced at the trial is not sufficient to convict the accused. As the incriminating witnesses were partially not credible – acquittal in dubio ”. Upon the pronouncement of the acquittal, the applicant was released.

Immediately after the pronouncement of the acquittal, at the same hearing, the applicant requested compensation for her detention on remand. The Wels Regional Court, with the same composition as above, dismissed the applicant’s claim. It found that, apart from the fact that the jury’s verdict had not been unanimous, the suspicion against the applicant had not been dispelled. Thus the requirements of section 2 (1)(b) of the Compensation (Criminal Proceedings) Act 1969 ( Strafrechtliches Entschädigungsgesetz 1969 - “ the 1969 Act”) were not met. In particular, the statement of the applicant’s parents that she had spent the night of the murder at their home was not credible. In addition, she had owned a weapon which could have been the one used for the murder and her defence that she had no contact with the victim shortly before the commission of the crime had been disproved by the statements of a number of witnesses. The decision was served on the applicant after her acquittal had become final on 17 December 1996.

The applicant lodged an appeal with the Linz Court of Appeal ( Oberlandesgericht ). She argued that section 2 (1)(b) of the 1969 Act was incompatible with Article 6 § 2 of the Convention. Furthermore, the main suspicion against her had been dispelled during the trial. On 20 June 1997 the Linz Court of Appeal dismissed the applicant’s appeal. Referring to the case of Sekanina v. Austria (Series A no. 266-A), it considered that only a decision which, following the accused’s acquittal, expressed the view that he or she was guilty could violate the presumption of innocence, whereas the Regional Court had only found that there was a remaining suspicion against the applicant. Further, referring to the Constitutional Court’s ( Verfassungsgerichtshof ) judgment of 29 September 1994, it found that section 2 (1)(b) of the 1969 Act was not in itself incompatible with Article 6 § 2 of the Convention. The Court of Appeal continued as follows:

“Nor does the principle of the presumption of innocence prevent the prosecuting authorities from suspecting someone of having committed an offence. By section 2(1)(b) of the [1969 Act], refusal of a claim [for compensation] (on the ground that suspicion has not been dispelled) depends not on proven guilt but on the possibility that the person concerned may have committed the offence and therefore on a (persisting) suspicion ...  In the instant case it was precisely such a suspicion concerning Snjezana Vostic that had not been wholly dispelled, particularly in view of the fact that it was still possible that Snjezana Vostic’s gun had been the murder weapon; furthermore, inconsistencies remain unresolved. The trial court thus rightly held that the testimony given by the parents of the appellant, whose alibi related to the night of 31 March to 1 April 1996, was not credible; and Snjezana Vostic’s own testimony to the effect that she had last seen Sejdo Nadarevic in mid-February 1996 was in the end disproved by the witnesses who gave evidence at the trial.”

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 Au s tria ... 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 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 of 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. If the judgment was based on the verdict of a jury, the bench shall decide together with the jury. ...

(4) Once the judgment rendered in the criminal proceedings has become final, the decision ... must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and 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, has the force of constitutional law. In the light of the Sekanina v. Austria judgment (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.

COMPLAINT

The applicant complains under Article 6 § 2 of the Convention that the Austrian courts, in particular the Linz Court of Appeal, disregarded the presumption of innocence when refusing her compensation claim for detention on remand in that, despite the acquittal, they found that there was a continuing suspicion against her.

THE LAW

The applicant complains that the courts did not respect the presumption of innocence when dealing with her compensation claim following her acquittal. She 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, however, the same assize court which had pronounced the applicant’s acquittal decided on the compensation claim and did no more than repeat the verdict of the jury - i.e. the acquittal in dubio pro reo - and the reasons given in the record of the jury’s deliberations, without making statements about the applicant’s guilt.

The applicant contests this and maintains that, once an acquittal has become final, the voicing of any doubts as to the accused’s innocence violates Article 6 § 2.

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 the application admissible, without prejudging the merits of the case.

S. D ollé J.- P. Costa Registrar President