THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38545/97 by Olaf WUNDERLICH against Austria

The European Court of Human Rights ( Third Section ), sitting on 16 May 2000 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. Dollé , 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 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 German national, born in 1968 and living in Germany. He is represented before the Court by Mr Georg Mandl , a lawyer practising in Feldkirch .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, 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 ), composed of three professional judges and an eight member jury, acquitted the applicant of all the charges against him. The jury answered the main questions as to murder and aggravated robbery and the alternative question as to aggravated theft with six votes “no” and two votes “yes”. According to the record of its deliberations ( Niederschrift ), the jury answered the questions in the negative as “the giving of evidence ( Beweisführung ) was inadequate and contradictory”, as “doubts as to the accused’s guilt or innocence, respectively, could not be removed” and as “in dubio it had to decide in the accused’s favour”. 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 gave detailed reasons as to why a weighty suspicion remained against the applicant. In particular it noted that he had made a confession to the police in August 1994 which he had subsequently modified on several occasions and which he had only revoked in March 1995. In any case, he had admitted having met the victim in Switzerland and driving with him to Austria on the day on which he was murdered. He also admitted having used the victim’s car, on the following day, which was eventually seized in the Czech Republic. The court noted that there had been traces of blood in the car. A number of the victim’s belongings had been found in the applicant’s hotel room when he was arrested. 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 there were no minutes of the Regional Court’s deliberations on his compensation claim. Further, he claimed that the Regional Court’s decision violated the presumption of innocence. He referred to case-law of the Supreme Court, according to which only grounds of suspicion which are contained in the record of the jury’s deliberations may be relied on for dismissing a compensation claim following an acquittal. The applicant claimed that the Regional Court had disregarded this rule as it had assessed the question of a remaining suspicion on the basis of the whole case-file.

On 4 March 1997 the Innsbruck Court of Appeal dismissed the applicant’s appeal. It noted that the file contained minutes of the deliberations on the compensation claim. However, this was an internal court document to which a party had no access. As to the applicant’s compensation claim, it confirmed that as a general rule the court had to decide on the basis of the jury’s verdict and the record of its deliberations. However, it went on to say:

“Since in the instant case, in accordance with section 6(2), the jury that had given the verdict that formed the basis of the judgment (acquitting the defendant) also decided the question of compensation for detention pending trial, the trial court – unlike a bench of three judges (without a jury) deciding such an issue at a later date – was entitled to take the current state of suspicion as a basis for its ruling on compensation and accordingly to assess it. The impugned decision of the trial court was therefore the outcome of the lawful examination of the grounds for suspicion that existed at the time of the acquittal, which had not then become final.  In those circumstances there was no need for a fresh judicial consideration, for which provision is made in the exceptional case in which compensation proceedings are brought later on, with an independent examination of the evidence and an independent assessment of the issue of guilt after an acquittal based on a jury’s verdict has become final.

...

Where, on the ground that suspicion has not been dispelled, the same court decides before an acquittal becomes final to disallow a claim for compensation (a decision which must provisionally not be announced), that decision is not to be understood either as an expression of doubt as to the correctness of the immediately preceding jury verdict and the Assize Court’s acquittal of the defendant on the basis of it or as a breach of the presumption of innocence enshrined in Article 6 § 2 of the [Convention] (which is relevant only once the proceedings have been finally disposed of) ... .”

In conclusion, the Court of Appeal found that the Feldkirch Regional Court’s decision was in accordance with the law and with the principles of the Convention. Its decision was served on the applicant’s counsel on 17 March 1997.

B. Relevant domestic law

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

Section 2 (1)(b)

“(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 ( VfSlg 13879 ) the Constitutional Court dismissed an application filed by the Graz Court of Appeal to have section 2 (1)(b) of the 1969 Act annulled as being unconstitutional. It found that section 2 (1)(b) as such 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 case (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

1. The applicant complains under Article 6 of the Convention about the length and alleged unfairness of the criminal proceedings against him. He claims that, at the pre-trial stage, investigation results were not fully disclosed to him, that the assize court failed to prosecute the perjury of a witness and did not oppose a press campaign against him. Furthermore, he complains about the duration of his detention on remand.

2. The applicant complains under Article 6 of the Convention about the alleged unfairness of the compensation proceedings, in particular that he did not have access to the Regional Court’s minutes of the deliberations on his compensation claim. Further, he appears to claim that, due to the alleged unfairness of the criminal proceedings, the compensation proceedings were also unfair. In this respect he submits in particular that the trial minutes were not available to the Regional Court when it acquitted him and decided on his compensation claim and that it could, therefore, not duly assess whether the suspicion against him had been dispelled.

3. The applicant complains under Article 6 § 2 of the Convention that the Austrian courts disregarded the presumption of innocence when refusing his claim for compensation in that, despite the acquittal, they found that there was a continuing suspicion against him.

THE LAW

1. The applicant complains about the duration of his detention on remand and about the length and alleged unfairness of the criminal proceedings against him. He invokes Article 6 of the Convention which provides, as far as relevant:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

The Court recalls that in accordance with Article 35 § 1 it “may only deal with the 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”.

As regards the complaint about the duration of his detention, the applicant has not submitted any documents to show that he has exhausted domestic remedies. In any case, the Court notes that the applicant was released on 14 November 1996, following his acquittal, but he only introduced his application on 16 September 1997 which is, thus, outside the six months time-limit. As regards the complaints about the length and alleged unfairness of the criminal proceedings against him, the Court notes that the final decision in these proceedings was served on the applicant’s counsel on 2 December 1996. Thus, in this respect too, the applicant has failed to comply with the six months rule.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant complains about the alleged unfairness of the compensation proceedings, in particular as he did not have access to the assize court’s minutes of the deliberations on his compensation claim. Further, he appears to claim that, due to the alleged unfairness of the criminal proceedings, the compensation proceedings were also unfair. In this respect he submits in particular that the trial minutes were not available to the assize court when it acquitted him and decided on his compensation claim and that it could, therefore, not duly assess whether the suspicion against him had been dispelled. He relies on Article 6 of the Convention.

The Court recalls that in order to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention an applicant must have raised before the national authorities, at least in substance, the complaint he puts to the Court (see for instance the Ahmet Sadik v. Greece judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1653-1655, §§ 30-34). However, with the exception of his complaint about the lack of access to the assize court’s minutes, the applicant has failed to comply with this requirement as he did not raise these various complaints before the Innsbruck Court of Appeal.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

As to the applicant’s complaint about the lack of access to the assize court’s minutes on the deliberations leading to the refusal of his compensation claim, the Court recalls that proceedings under the 1969 Act concern a determination of the claimant’s civil rights and obligations within the meaning of Article 6 § 1 of the Convention (see for instance the Szücs v. Austria jugment of 24 November 1997, Reports 1997-VII, pp. 2479-80, §§ 33-38). However, the fact that a party to civil proceedings does not have access to an internal court document, such as a deliberations record, does not disclose any appearance of a violation of Article 6 § 1.

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

3. The applicant complains under Article 6 § 2 of the Convention that the Austrian courts disregarded the presumption of innocence when refusing his claim for compensation in that, despite the acquittal, they found that there was a continuing suspicion against him.

Article 6 § 2 reads as follows:

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

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is, therefore, necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaint [Note1] that the reasoning of the courts dismissing his compensation claim for detention on remand disregarded the presumption of innocence;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar              President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.