THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33730/96 by Franz Johann WEIXELBRAUN against Austria

The European Court of Human Rights (Third Section), sitting on 9 January 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 4 September 1996 and registered on 8 November 1996,

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 an Austrian national, born in 1951 and living in Wörgl (Austria). He is represented before the Court by Mr H. Fuchs , a lawyer practising in Innsbruck (Austria).

A. The circumstances of the case

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

On 4 February 1989 the Austrian police were informed via Interpol that on 30 January 1989 in Poquoson (Virginia, USA) E.P. , a German citizen, and H.S., an Austrian citizen, had been killed and that the applicant, who at that time lived in Virginia, was suspected of having killed and robbed them. A warrant of arrest was issued against the applicant in the United States.

On 5 February 1989 the applicant, who in the meantime had returned to Austria, was arrested and on 7 February 1989 was remanded in custody. The applicant remained on remand until 17 June 1992. This period was interrupted from 17 May to 6 June 1989 and from 6 February 1998 to 17 May 1989 whilst the applicant served prison sentences imposed in respect of previous convictions.

Meanwhile the trial against the applicant took place before the Assizes of the Innsbruck Regional Court sitting with a jury. On 16 October 1991 the jury acquitted the applicant, but the bench of the Assize Court set aside the jury’s verdict as erroneous. A new trial against the applicant and one co-accused was held before another Assize Court of the Innsbruck Regional Court.

On 17 June 1992 the Court of Assizes again acquitted the applicant. The jury answered the question as to murder and the question as to aggravated robbery with six votes of “no” and two votes of “yes”. According to the record of the jury’s deliberations, the majority of its members found the applicant not guilty as there had been discrepancies between the statements of the witnesses ( “ Widersprüche in den Zeugenaussagen ” ).

On 1 October 1993 the Innsbruck Regional Court sitting with a single judge heard the applicant in private on his claim for compensation in respect of his detention on remand. The applicant, assisted by counsel, argued that the proceedings under the Criminal Proceedings Compensation Act ( Strafrechtliches Entschädigungsgesetz ) infringed the presumption of innocence guaranteed by Article 6 § 2 of the Convention. He referred to the Sekanina v. Austria judgment of the European Court of Human Rights (25 August 1993, Series A no.266-A). The applicant also presented fresh evidence which, in his opinion, could entirely dissipate the suspicion still subsisting against him.

On 24 January 1996 a chamber of the Innsbruck Regional Court, composed of three judges, dismissed the applicant’s compensation claim. The Regional Court found that a right to compensation in the applicant’s case would require that the suspicion against him had been entirely dissipated. According to the records of the jury’s deliberations, a majority of the members had found the applicant not guilty on the grounds that there had been discrepancies between the statements of witnesses. The applicant was not acquitted because his innocence had been proven, but because he had been given the benefit of the doubt. Thus, the suspicion against the applicant had not been dissipated. As regards the applicant’s request for the taking of evidence, the Regional Court found that it was prevented from examining further evidence. It referred in this respect to the Constitutional Court’s case-law following the Sekanina judgement, according to which a fresh examination of the question of guilt in compensation proceedings following a final acquittal would be in breach of Article 6 § 2 of the Convention.

On 12 February 1996 the applicant appealed against this decision. He submitted, inter alia , that the Regional Court had re-examined the Assize Court’s acquittal. However, it was no longer acceptable to rely on suspicions once an acquittal had become final.

On 27 February 1996 the Innsbruck Court of Appeal, sitting in camera, dismissed the applicant’s appeal. It found that a suspicion of having committed a criminal offence is only dissipated if either the claimant’s innocence has been proven, or if all arguments supporting the suspicion against him have been refuted. The right to compensation demands that innocence be established. However, this requirement was not met in the applicant’s case. Referring to the Regional Court’s decision, the Court of Appeal found that the records of the jury’s deliberations clearly expressed the opinion of the members of the jury. In their mind various circumstances spoke against the applicant, but it had not been possible to convict him because of discrepancies between the statements of witnesses.

The Court of Appeal concluded that, according to the Sekanina judgement, a fresh examination of the question of guilt in the compensation proceedings following a final acquittal would have been in breach of Article 6 § 2 of the Convention, but not the refusal of compensation itself. The Regional Court had not re-examined the question of the applicant’s guilt, rather it had referred to the reasons for which the majority of the jury had voted “not guilty”, and had concluded that the suspicion against the applicant had not been dissipated.

B. Relevant domestic law

The Criminal Proceedings Compensation Act ( Strafrechtliches Entschädigungsgesetz ) provides for compensation for pecuniary loss resulting from detention on remand. The conditions to be met are laid down in SS. 2 and 3.

S. 2 § 1 (a) relates to the case of unlawful detention on remand. S. 2 § 1 (b) specifies as conditions that the accused has been acquitted, or that the proceedings against him have been otherwise discontinued and that the suspicion that he has committed the offence in question no longer subsists, or that there is a bar to prosecution which already existed at the time of his detention.

S. 6 § 1 stipulates that when a court orders or prolongs detention on remand, the superior court is competent to decide whether the conditions of SS. 2 § 1 (a) and 3 are met. S. 6 § 2 stipulates that where a person is acquitted or criminal proceedings against him are discontinued by a court, the same court is competent to decide whether the conditions of SS. 2 § 1 (b) and 3 are met. In these proceedings the detained person has to be heard and, if necessary, evidence has to be taken. According to S. 6 § 4, a decision on a compensation claim under S. 2 § 1 has to be served on the person concerned but not made public. The detainee and the Prosecutor's Office have a right of appeal to the superior court which can take further evidence, if necessary. The final decision in these proceedings is binding on the civil courts.

If the said courts find that the conditions under SS. 2 and 3 are met, the person concerned has to file a request with the Department of Finance ( Finanzprokuratur ) for acknowledgement of his claim. If there is no decision upon his request within six months, or if his claim is partly or wholly refused, the person concerned has to institute civil proceedings against the Republic of Austria (SS. 7 and 8).

COMPLAINT

The applicant complains under Article 6 § 2 of the Convention that the reasoning of the Innsbruck Regional Court as well as that of the Innsbruck Court of Appeal, dismissing his compensation claim on the ground that the suspicion against him had not been dissipated, violated the presumption of innocence.

THE LAW

The applicant complains under Article 6 § 2 of the Convention that the Austrian courts did not respect the presumption of innocence when dealing with his compensation claim.

Article 6 § 2 of the Convention reads as follows:

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

The Government submit that the applicant’s acquittal was an acquittal in dubio , a verdict which is pronounced despite the fact that suspicions against the accused persist after all the evidence has been heard, where the results of the evidentiary proceedings are not clear enough to establish with near-certainty that the accused committed the offence and was guilty. They point out that the present case is not comparable to the Sekanina v. Austria judgment (25 August 1993, Series A no 266-A), as the essential ground for the Court finding a violation was that the reasoning of the Linz Court of Appeal did not have a sound basis either in the acquittal judgment or in the minutes of the jury. In the present case the Regional Court did nothing else than rely on the jury’s verdict. Thus, there was no re-assessment of guilt in the present case.

This is contested by the applicant. He submits that the distinction drawn by the Government between a full acquittal and an acquittal in dubio pro reo itself is contrary to the presumption of innocence as it is incompatible with this principle to have two classes of acquittal. Such a distinction is also not in line with the Court’s case-law ( Sekanina v. Austria judgment of 25 August 1993, Series A no. 266-A; Asan Rushiti v. Austria , no. 28389/95, 21.3.2000). Thus, the reasoning of the Innsbruck Regional Court and the Innsbruck Court of Appeal violated the principle of the presumption of innocence as they disregarded the final acquittal in the criminal proceedings.

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. Dollé J.-P. Costa Registrar President