THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39046/97 by Alexander ALBERT against Austria

The European Court of Human Rights (Third Section), sitting on 15 May 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 August 1997 and registered on 19 December 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 is a Austrian national, born in 1974 and living in Leonding (Austria). He is represented before the Court by Mr W. Moringer, a lawyer practising in Linz (Austria). The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 October 1995 the applicant was remanded in custody. He was suspected of having committed grievous bodily harm, aggravated coercion and fornication with a youth of the same sex ( gleichgeschlechtliche Unzucht mit Personen unter achtzehn Jahren ).

On 18 March 1996 the Linz Regional Court, sitting with a single judge, acquitted the applicant of fornication, convicted him of the two other charges and sentenced him to one year’s imprisonment. Furthermore, the applicant was committed to an institution for mentally disturbed criminals ( Anstalt für geistig abnorme Rechtsbrecher ).

On 1 July 1996 the Linz Court of Appeal, upon the applicant’s appeal, quashed the conviction and remitted the case to the Regional Court. The applicant was released from detention on 31 July 1996.

On 13 August 1996 the Linz Regional Court acquitted the applicant of all the charges against him. It found that proof of the applicant’s guilt was not possible since two witnesses had stated that the applicant had not been at the scene of the crime at the time.

On 31 October 1996 the applicant filed a compensation claim relating to his detention on remand. On 25 November 1996 the Linz Regional Court, without further proceedings, rendered a declaratory decision ( Feststellung ) that the applicant was entitled to compensation under Section 2 § 1 (b) of the Criminal Proceedings Compensation Act ( Strafrecthliches Entschädigungsgesetz ) in respect of his detention on remand. The court found itself bound by the assessment of evidence in the acquittal judgment and considered the suspicion against the applicant dispelled by the statements of the witnesses in his favour.

On 20 January 1997 the Linz Public Prosecutor’s Office appealed. According to the applicant, this appeal was not served on him. On 24 January 1997 the Linz Court of Appeal, sitting in private, quashed the Regional Court’s decision and decided that the applicant was not entitled to compensation. The Court of Appeal found that the assessment of evidence in the acquittal judgment was not tantamount to a complete dissipation of the suspicion against the applicant, but constituted an acquittal in dubio pro reo . It also found that it had not been necessary to offer the applicant the opportunity to comment on the Public Prosecutor’s appeal since the Senior Public Prosecutor had refrained from doing so. The decision was served on the applicant’s counsel on 4 February 1997.

On an unspecified date, the Procurator General filed a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) with the Supreme Court. On 19 October 2000 the Supreme Court granted the plea of nullity. It found that the Court of Appeal’s failure to hold a public hearing on the appeal against the Regional Court’s decision of 25 November 1996 was a violation of Section 6 §§ 3 and 4 of the Compensation Act read in conjunction with Article 6 § 1 of the Convention. The Supreme Court, referring to the cases of Werner v. Austria (judgment of 24 November 1997, Reports of Judgments and Decisions 1997-VII) and Rushiti v. Austria (no. 28389/95, § 27, 21.3.00), found that, in the light of the relevant case-law of the European Court of Human Rights, the procedural  provisions of the compensation act required an oral hearing. The Supreme Court quashed the Court of Appeal’s decision and remitted the case to that court.

The proceedings are presently pending before the Court of Appeal.

COMPLAINTS

1. The applicant complains under Article 6 § 2 of the Convention that the reasoning of the Linz Court of Appeal, dismissing his request for compensation on the ground that the suspicion against him had not been dissipated, violated the presumption of innocence.

2. He further complains under Article 6 § 1 of the Convention that the compensation proceedings against him were unfair in that the Public Prosecutor’s appeal against the Regional Court’s decision of 25 November 1996 had not been served on him, and that he had therefore not been given the opportunity to react thereto. He also complains that neither the Linz Regional Court nor the Linz Court of Appeal held a public hearing on his compensation claim.

THE LAW

The applicant complains under Article 6 § 2 of the Convention that the reasoning of the Linz Court of Appeal’s decision dismissing his compensation request violated the presumption of innocence. He further complains under Article 6 § 1 of the Convention that the compensation proceedings against him were unfair and that neither the Linz Regional Court nor the Linz Court of Appeal held a public hearing.

However, the Court recalls that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

The Court notes that, following a plea of nullity for the preservation of the law lodged by the Procurator General, the Supreme Court, on 19 October 2000, quashed the Court of Appeal’s decision of 24 January 1997 by which the applicant’s compensation claim had been dismissed and remitted the case to that court. These proceedings are presently pending. The Court observes that, under Section 33 § 2 of the Austrian Code of Criminal Procedure, the Attorney General alone has the right to lodge an appeal for the preservation of the law. Thus, this remedy cannot be regarded as effective for the purposes of Article 35§ 1, or a remedy which an applicant should exhaust (cf. Bohuslav and Lausman v. Austria, no. 21528/93, decision of the European Commission of Human Rights, 12.10.94, unpublished). However, once the Supreme Court has granted such a plea of nullity there no longer exists a final decision within the meaning of Article 35 § 1 of the Convention.

Given the fact that the proceedings in the present case are still pending, and that any assessment of complaints under Article 6 of the Convention must be made in the light of the proceedings as a whole, the Court concludes that the application is premature and must be rejected as being manifestly ill-founded at this stage, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registra r President