THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33285/96

by Hubert SIMA

against Austria

The European Court of Human Rights ( Third Section) sitting on 24 August 1999 as a Chamber composed of

Sir Nicolas Bratza, President ,

Mr J-P. Costa,

Mr L. Loucaides,

Mr P. KÅ«ris,

Mr W. Fuhrmann,

Mrs H.S. Greve,

Mr K. Traja, Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 June 1996 by Hubert Sima against Austria and registered on 2 October 1996 under file no. 33285/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1971, is an Austrian national residing in Innsbruck. In the proceedings before the Court he is represented by Mr. Cammerlander, a lawyer practising in Innsbruck.

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

A. The particular circumstances of the case

On 26 July 1988 the applicant, who was at that time sixteen years old, together with his twelve year old friend W., set fire to Mrs. A.'s barn, which resulted in the whole barn burning to the ground despite the intervention of numerous fire brigades. Subsequently, criminal proceedings for arson were instituted against the applicant, but not against W., who was still below the age of criminal responsibility.

On 17 March 1989 the Innsbruck Regional Court ( Landesgericht ), sitting as a juvenile court with lay assessors, held the trial in the presence of the applicant, his counsel and counsel for Mrs. A., who had joined the proceedings as a private party. The applicant pleaded guilty, admitting in particular that he and W. had deliberately set fire to two sides of the building as they wanted to watch a big fire. The Court also heard W. as a witness and took the opinion of a technical expert. Following the hearing, the Regional Court convicted the applicant of arson and sentenced him to fourteen months' imprisonment suspended on probation. Further, it ordered him to pay compensation for part of the damage, namely Austrian schillings (ATS) 100,000, to Mrs. A.

In establishing the relevant facts, the court had regard to the applicant's confession as well as to the statements of W. and the opinion of the expert. It found that, on 26 July 1988, the applicant was spending the afternoon with his friend W. With the applicant's motorcycle they drove to Mrs. A.'s barn, which they entered by unlocking the inside bolt. The barn had not been used since 1987, but a great amount of hay and straw was still stored there. While playing and jumping around in the hay, the applicant and W. had had the idea to set fire to the hay in order to watch a big fire. They drove back to the applicant's home to fetch a box of matches. Upon their return they parked the motorcycle at some distance and went back to the barn, where they set the hay on fire on two different sides of the building. They watched for a while and, when the fire grew bigger, drove home and told the applicant's mother that Mrs. A.'s barn was burning. Thereupon, they returned and watched the fire-brigades who could not, however, prevent the building from burning down completely.

As to the applicant's personality, the Regional Court noted that he had no criminal record and had grown up with his parents, who had not encountered any particular educational difficulties. In fixing the sentence the court considered the applicant's confession as a mitigating circumstance, while it had regard to the high amount of damage as an aggravating circumstance. The court finally noted that the order to pay Mrs. A ATS 100,000 in damages was based on the applicant's acknowledgement of her claim.

The applicant's plea of nullity ( Nichtigkeitsbeschwerde ) to the Supreme Court ( Oberster Gerichtshof ) was to no avail.

Subsequently, Mrs. A. brought a civil action before the Klagenfurt Regional Court, requesting that the applicant and W. be ordered to pay ATS 2,5 million in compensation. The applicant and W., both represented by counsel, challenged this claim on various points. In particular, they submitted that neither of them had been responsible for their acts ( zurechnungsfähig ) at the material time.

On 2 June 1993 the Klagenfurt Regional Court, after having held hearings at which it questioned the parties, a number of witnesses, technical experts and a psychiatric expert, found that the applicant and W. were jointly and severally liable to pay half of the damage caused by the fire, which it assessed at ATS 1,7 million. In addition, the applicant alone was liable to pay a further 10% of this sum, from which the ATS 100,000 he had already been ordered to pay in the criminal proceedings were to be deducted. The court dismissed the remainder of Mrs. A.'s action.

The court noted in particular that, according to the psychiatric expert's opinion, the applicant as well as W. had at the material time suffered from a neurosis, rooted in their family backgrounds. Although they had been able to understand the dangerousness of their action, they were unable to control their acts as they were driven by their neurosis. As to the law, the court found that section 1310 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) applied, which provides for liability on grounds of equity of persons who, as a general rule, are not responsible for their acts, such as minors or persons of unsound mind. The court found that reasons of equity led to the conclusion that the applicant and W. could be expected to pay part of the damages.

On 11 January 1994 the Graz Court of Appeal ( Oberlandesgericht ), upon the appeals of both parties, quashed this decision and dismissed Mrs. A.'s compensation claim entirely.

The Court of Appeal considered that the civil courts were not bound by the criminal court's finding that the applicant was criminally responsible. It noted in particular that section 268 of the Code of Civil Procedure ( Zivilprozessordnung ), according to which the civil courts were bound by a final criminal judgment insofar as their decision depended on the proof and imputation of a criminal offence, had been set aside by the Constitutional Court's judgment of 12 October 1990 (see below). Thus the Regional Court had rightly obtained the opinion of a psychiatric expert as regards the applicant's state of mind at the relevant time. It followed from this opinion that neither the applicant nor W. were acting with fault. The court went on to examine whether the applicant and W. were liable to pay damages under section 1310 of the Civil Code. It noted that the applicant and W. both earned minimum incomes and did not possess any valuable assets. The claimant, Mrs. A., owned real property, which was heavily mortgaged, and she was living on a minimum pension. However, having regard to all the circumstances of the case, she could more easily be expected to bear the damage than the defendants. Moreover, the first applicant had already been ordered to pay her ATS 100,000 in compensation. Thus, considerations of equity led to the conclusion that the claimant's action for damages had to be dismissed.

On 17 October 1995 the Supreme Court partly granted Mrs. A's appeal on points of law and ordered the applicant to pay her damages of ATS 1,6 million (i.e. the whole amount of damages as determined by the Klagenfurt Regional Court less the ATS 100,000 which he had already been ordered to pay in the criminal proceedings). It upheld the appellate court's decision dismissing her claim against W.

As to the question whether the civil courts were bound by the criminal court's judgment, the Supreme Court referred to its leading case decided on the same day (see below). It followed that the Regional Court should have based its decision on the fact that the applicant had been convicted of arson by a final judgment - which included the finding that he had been criminally responsible at the material time - in particular as the applicant had already been given a full hearing guaranteeing his defence rights in the criminal proceedings. Thus, the applicant had acted with fault and was liable under the general law of tort to pay the entire damage. Consequently, there was no room for the application of section 1310 of the Civil Code.

As regards W., who had been a minor at the relevant time, the Supreme Court recalled that, according to the findings of the lower instances, his will had been excluded by a neurosis. Thus, only liability for reasons of equity under section 1310 of the Civil Code could apply. In this context the Supreme Court found that the appellate court had duly established the financial situation of Mrs. A. and of W., respectively, and confirmed its assessment that the claimant could more easily be expected to bear the damage.

The Supreme Court's judgment was served on the applicant's counsel on 12 December 1995.

B. Relevant domestic law and practice

The Constitutional Court's judgment of 12 October 1990

On 12 October 1990 the Constitutional Court repealed section 268 of the Code of Civil Procedure which provided that if the decision depended on the proof and imputation of a criminal offence, the judge - in civil proceedings - was bound by the contents of the final judgment of the criminal court convicting an individual. The Constitutional Court had a case before it in which the insurer of a bus driver, who had been convicted by a final judgment of negligently causing bodily harm, had in subsequent civil proceedings been ordered to pay damages to the victim without being able to challenge the criminal court's finding that the bus driver had driven on the left side of the road. Examining the wording, the drafting history and the aim of section 268 of the Code of Civil Procedure, the Constitutional Court concluded that the binding effect of a final conviction provided therein was not limited to the convicted person, or possibly other persons who had been parties to the criminal proceedings, but also applied to third persons. Section 268 of the Code of Civil Procedure was, thus, not in conformity with Article 6 of the Convention as persons who had not had access to the criminal proceedings for factual or legal reasons were in subsequent civil proceedings prevented from challenging the criminal court's findings and, therefore, did not receive a fair hearing within the meaning of this Article.

The Supreme Court's judgment of 17 October 1995

On 17 October 1995, the Supreme Court sitting with an enlarged senate ( erweiterter Senat ) found in a leading case that, despite the repeal of section 268 of the Code of Civil Procedure, a final criminal conviction was binding in the sense that the convict was, in subsequent civil proceedings, prevented from pleading that he had not committed the offence of which he had been convicted, irrespective of whether or not the other party in the civil proceedings had participated in the criminal proceedings. The Supreme Court considered that this interpretation, limiting the res judicata effect of a final criminal conviction to the convicted person, was in conformity with Article 6 of the Convention, as the convict had already had a full hearing guaranteeing his defence rights in the criminal proceedings. It could not entail any disadvantages for the opposite party, who relied on the conviction in subsequent civil proceedings. Moreover, the Supreme Court found that there was no contradiction with the Constitutional Court's judgment of 10 October 1990 which had repealed section 268 of the Civil Code precisely on the ground that it provided for a binding effect of a criminal conviction, not only as regards the convict but also as regards third persons who had not participated in the criminal proceedings and had not, therefore, received a hearing as required by Article 6 of the Convention.

COMPLAINTS

The applicant alleges a violation of Article 6 § 1 of the Convention in that the Supreme Court considered the criminal judgment of the Innsbruck Regional Court binding for the civil courts' decision as to his liability in the proceedings for damages. He submits in particular that the Supreme Court disregarded the arguments advanced by the Constitutional Court in its decision repealing section 268 of the Code of Civil Procedure. In addition, the applicant complains that the Supreme Court's judgment violated the principle of non-discrimination as only he was ordered to pay compensation while the claim against W. was dismissed.

THE LAW

The applicant complains that the Supreme Court considered the criminal judgment against him binding on the civil courts in subsequent compensation proceedings. He invokes Article 6 § 1 of the Convention which, so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... .”

The Court recalls that a comparable issue arose in the case of Obermeier v. Austria, in which the labour courts considered themselves bound by the decision of an administrative authority as regards the validity of a dismissal, which was a preliminary question in their proceedings. In that case the Court found that the conditions laid down in Article 6 § 1 are met only if the decisions of the administrative authorities binding the courts were delivered in conformity with the requirements of that provision (Eur. Court HR, Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, p. 22, § 70).

In the present case the applicant, represented by counsel, pleaded guilty and was convicted of arson in criminal proceedings. In these proceedings he also acknowledged Mrs. A.'s partial claim for damages. In subsequent civil proceedings for damages he submitted that he had not been responsible for his acts at the material time. While the lower courts took evidence in this respect, namely an opinion of a psychiatric expert, the Supreme Court found that the civil courts were bound by the final criminal judgment and thus, had to base their decisions on the criminal court's finding that the applicant was criminally responsible for his acts. The Supreme Court held that the binding effect of the criminal judgment was not incompatible with Article 6 of the Convention as the applicant had had a full hearing guaranteeing his defence rights in the criminal proceedings.

The Court finds that there is no indication, and the applicant has not alleged, that the criminal proceedings were not conducted in conformity with the requirements of Article 6 of the Convention, which are far more stringent in criminal proceedings than they are in civil proceedings (see mutatis mutandis Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 32). Thus, the fact that the civil courts were bound by the criminal court's judgment does not disclose any appearance of a violation of Article 6 of the Convention.

The applicant further alleges that the Supreme Court's judgment discriminated against him, as he was ordered to pay damages while the claim against W. was dismissed. Article 14 of the Convention prohibits discrimination in the enjoyment of Convention rights and freedoms. However, the Court finds that there is no indication of a violation of Article 6 taken in conjunction with Article 14 of the Convention, as the difference in treatment between the applicant and W. was objectively based on the fact that W. was still a minor at the time of committing the arson, and was thus not responsible for his acts either under criminal law or under civil law.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza

Registrar President