THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38545/97 by Olaf WUNDERLICH 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. KÅ«ris , 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 16 September 1997 and registered on 7 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 partial decision of 16 May 2000,

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, Olaf Wunderlich, is a German national , born in 1968. He is represented before the Court by Mr G. Mandl, a lawyer practising in Feldkirch. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department of the Federal Ministry of Foreign Affairs.

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

On 7 April 1994 the applicant was arrested in the Czech Republic and taken into detention with a view to his extradition ( Auslieferungshaft ). Four months later he was transferred to Austria and remanded in custody by the Feldkirch Regional Court ( Landesgericht ) on suspicion of murder and aggravated robbery.

On 14 November 1996 the Feldkirch Regional Court sitting as an assize court ( Geschwornengericht ) acquitted the applicant of all the charges against him. Upon the pronouncement of the acquittal, the applicant was released. The judgment was served on the applicant on 2 December and became final on 30 December 1996.

Immediately after the pronouncement of the acquittal, at the same hearing, the applicant requested compensation for his detention on remand.

The Feldkirch Regional Court, with the same composition as above, dismissed the applicant’s claim. It found that the suspicion against the applicant had not been dispelled and that, thus, the requirements of section 2 (1)(b) of the Compensation (Criminal Proceedings) Act 1969 ( Strafrechtliches Entschädigungsgesetz 1969 - “the 1969 Act”) were not met. The court’s decision was served on the applicant after his acquittal had become final.

The applicant lodged an appeal with the Innsbruck Court of Appeal ( Oberlandesgericht ). He complained, in particular, that the Regional Court’s decision violated the presumption of innocence.

On 4 March 1997 the Innsbruck Court of Appeal dismissed the applicant’s appeal. Its decision was served on the applicant’s counsel on 17 March 1997.

On 27 November 1998 the Feldkirch Regional Court, upon the Public Prosecutor’s request, ordered the re-opening of the criminal proceedings against the applicant, having regard to new statements by two witnesses. Consequently, it quashed the acquittal of 14 November 1996. According to section 359 § 1 of the Code of Criminal Procedure, the proceedings were resumed at the stage of preliminary investigations.

On 9 February 2000 the Public Prosecutor filed the indictment, charging the applicant again with murder and aggravated robbery.

On 25 February 2000 an international arrest warrant was issued. Currently, the applicant’s whereabouts are unknown and the criminal proceedings against him are still pending.

COMPLAINT

The applicant’s remaining complaint is that the Austrian courts disregarded the presumption of innocence laid down in Article 6 § 2 when refusing his claim for compensation in that, despite his acquittal, they found that there was a continuing suspicion against him.

THE LAW

The applicant complains that the courts did not respect the presumption of innocence when dealing with his compensation claim following his acquittal. 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 point out that the acquittal of 14 November 1996 has been quashed as the criminal proceedings against the applicant were re-opened. As the acquittal was the basis for the applicant’s compensation claim, and the criminal proceedings against him are currently pending, he cannot, at present, claim to be a victim of the alleged violation within the meaning of Article 34 of the Convention. Should the renewed proceedings end with a conviction, there would be no room for the violation alleged. Should it end with an acquittal, the applicant could again file a request for compensation for his detention and has, therefore, not yet exhausted domestic remedies. In the alternative, the Government contest the merits of the application.

The applicant objects. He argues that the decision on his compensation claim is final despite the re-opening of the criminal proceedings against him and could not be decided again in case of an acquittal in the renewed proceedings. In addition, he points out that he clearly had the status of a victim at the time of lodging his application. Furthermore, the applicant maintains that there was a breach of Article 6 § 2 as the courts deciding on his compensation claim disregarded his acquittal and proceeded to an assessment of his guilt on the basis of the file.

The Court notes that the criminal proceedings against the applicant were re-opened. Consequently the acquittal of 14 November 1996 was set aside  and the criminal proceedings are currently pending. Thus, the applicant can no longer allege a violation of Article 6 § 2 of the Convention on the basis that decisions on his compensation claim voiced doubts as to his innocence despite his acquittal. Moreover, the presumption of innocence is an element of a fair hearing under Article 6 § 1 of the Convention, which can only be assessed in the light of the proceedings as a whole.

In conclusion, 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 the application is manifestly ill-founded with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

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