THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 28389/95

by Asan RUSHITI [Note1]

against Austria [Note2]

The European Court of Human Rights ( Third Section) sitting on 15 December 1998 as a Chamber composed of

Mr N. Bratza , President ,

Mr J.-P. Costa,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mr K. Jungwiert ,

Mrs H.S. Greve ,

Mr K. Traja ,

with Mrs S. Dollé, S ection 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 5 July 1995 by Asan RUSHITI [Note3] against Austria and registered on 30 August 1995 under file No. 28389/95;

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

Having regard to the observations submitted by the respondent Government on 18 February 1998 and the observations in reply submitted by the applicant on 17 April 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1965, is a national of the Former Yugoslav Republic of Macedonia , residing in Edlitz , Austria. In the proceedings before the Court he is represented by Mr. F. Insam , a lawyer practising in Graz .

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

A. Particular circumstances of the case

On 1 April 1993 the Graz Regional Criminal Court ( Landesgericht für Strafsachen ) took the applicant into detention on remand ( Untersuchungshaft ) on charges of attempted murder. He was suspected of having, together with an accomplice, tried to kill M.R. in that his accomplice attacked M.R. with a knife, while the applicant prevented him from fleeing. In these and the following proceedings the applicant was represented by counsel.

On 1 September 1993 the Graz Regional Criminal Court,  sitting as an assize court ( Geschwornengericht ) with presiding judge Schaffernak , two other professional judges and eight jurors, acquitted the applicant.  The jury answered the main question as to attempted murder and the alternative question as to aggravated assault with seven votes "no" to one vote "yes". According to the record of its deliberations ( Niederschrift ), the jury had answered both questions in the negative as the evidentiary basis was insufficient (" da die Beweislage unzureichend ist "). Following his acquittal, the applicant was released.

On 2 September 1993 the applicant, relying on the Compensation (Criminal Proceedings) Act 1969 ( Strafrechtliches Entschädigungsgesetz 1969 , hereinafter “the 1969 Act”), filed a compensation claim relating to his detention on remand.

On 25 November 1993, the Graz Regional Criminal Court, after a first decision had been quashed on appeal, dismissed the applicant's compensation claim. The Court was sitting in camera. Its decision was signed by judge Schaffernak .

The Court noted that it had heard the applicant on 12 November 1993. It also noted the submissions of the Public Prosecutor's Office of 16 September 1993, proposing that the compensation claim be dismissed. The Court, referring to S. 2 § 1 (b) of the 1969 Act, found that there had been a reasonable suspicion against the applicant, which had not been dissipated, in particular with a view to the statement made by the victim at the hearing of 1 September 1993, which was not entirely without credibility.

On 3 December 1993 the applicant filed an appeal. He submitted in particular that it was not clear from the Regional Court's decision, whether it had been taken by a senate, and if so, who were the members of this senate. Further, his request to examine his clothes in order to show that they did not carry any traces of the victim's blood had been dismissed at the trial and that he had, thus, not had the possibility to establish his innocence. It should, therefore, not be held against him that the suspicion had not been completely dissipated. Moreover, the Regional Court's reasoning violated the presumption of innocence guaranteed by Article 6 § 2 of the Convention. For the same reason S. 2 § 1 (b) of the 1969 Act was unconstitutional. It put the onus of proof as regards the dissipation of the suspicion on the person claiming compensation, even if that person had been acquitted. Finally, the applicant claimed that Article 6 of the Convention applied to the compensation proceedings at issue, as they related to a pecuniary claim. He was, thus, entitled to a public hearing and a public pronouncement of the decisions. As there had not been a public hearing at first instance, he requested that such a hearing be held before the Court of Appeal.

On 30 December 1993 the Graz Court of Appeal ( Oberlandesgericht ) adjourned the proceedings and requested the Constitutional Court ( Verfassungs-gerichtshof ) to give a ruling that S. 2 § 1 (b) of the 1969 Act was unconstitutional.

On 29 September 1994 the Constitutional Court dismissed the request of the Graz Court of Appeal, finding that S. 2 § 1 (b) of the 1969 Act did not violate the presumption of innocence. It referred in particular to the Sekanina judgment of 25 August 1993 of the European Court of Human Rights and found that in this case the courts had not only had regard to the reasons given by the jury in the record of their deliberations, but had carried out an examination of the results of the taking of evidence on the basis of the file, thereby replacing the jury's evaluation of evidence. To this extent of the Graz Court of Appeal had applied the provision under review in an unconstitutional manner. However, the European Court of Human Rights had not found that the provisions of the 1969 Act, as such, violated Article 6 § 2 of the Convention. Thus, the Constitutional Court concluded that the denial of a compensation claim was not in breach of this Article but only the appeal court’s renewed examination of the question of guilt in the compensation proceedings following a final acquittal. The Constitutional Court commented, nevertheless, that it would be desirable  to amend S. 2 § 1 (b) of the 1969 Act  in order to clarify the law.

On 15 December 1994 the Graz Court of Appeal, sitting in camera, dismissed the applicant's appeal.

The Court, referring to the decision of the Constitutional Court found that in order to determine whether the suspicion against the applicant had been dissipated it was not entitled to examine the statements of the witnesses heard or other results of the taking of evidence in the criminal proceedings, but had to limit itself to the reasons which the jury gave for its finding. The court also referred to case-law according to which the suspicion was only dissipated, if either the claimant's innocence had been proven or if all arguments supporting the suspicion against him had been refuted. An acquittal for lack of evidence did not give an entitlement to compensation unless the innocence of the person concerned had at least become probable. Applying these principles to the facts of the case the court continued as follows:

“ Hier ist aufgrund der schon oben wiedergegebenen Fragestellung an die Geschworenen und der Niederschrift der Geschworenen (...) davon auszugehen , dass sowohl die Haupt - als auch die Eventualfrage jeweils sieben Mal mit ‘ Nein ’ und ein Mal mit ‘ Ja ’ beantwortet wurden und zum anderen die Verneinung der Haupt - und Eventualfrage deshalb jeweils mit sieben Stimmen erfolgte , ‘ da die Beweislage unzureichend ist ’. Das bedeutet , dass einerseits ein Geschworener ohnedies den Beschwerdeführer für schuldig hielt , während andererseits die übrigen Geschworenen die an sie gerichteten Fragen nur deshalb mit Nein beantworteten , da Ihnen die Beweislage unzureichend schien , mit anderen Worten , ihnen die Beweise eben nicht ausreichten , um Asan Rushiti der ihm angelasteten Tat schuldig zu sprechen . Keinesfalls kann aber daraus der Umkehrschluss gezogen werden , dass aufgrund dieser Erwägungen der Tatverdacht entkräftet oder die Unschuld Rushitis zumindest wahrscheinlich geworden wäre !”

“It can be concluded here - from the above-mentioned questions which were put to the jury and from the record of that jury’s deliberations - that both the main and the alternative question were answered with seven ‘no’ votes and one ‘yes’ vote and that seven jurors therefore cast a ‘no’ vote in response to the main and the alternative question ‘because the evidence was insufficient’.  This means that on the one hand one juror in any case found the applicant guilty , whereas on the other hand the other jurors answered the questions addressed to them in the negative only because they considered the evidence insufficient, in other words, they were of the opinion that the evidence did not suffice to find Asan Rushiti guilty of the charges brought against him. By no means can one draw the conclusion that, as a result of these considerations, the suspicion has been dispelled or Rushiti’s innocence has at least become probable!”

The Court added that, as the question of suspicion had to be assessed on the basis of the reasons given by the jury, the results of the proceedings against the applicant's accomplice to which the applicant had referred in submissions of 12 December 1994, were irrelevant to the present proceedings. It concluded that the suspicion against the applicant had not been dissipated.

As regards the applicant's further complaints, the Court noted that the Regional Court had been sitting in the composition provided for in S. 13 § 3 of the Code of Criminal Procedure ( Strafprozeßordnung ), namely as a senate of three judges. Finally, Courts of Appeal always had to sit in camera. S. 6 of the 1969 Act did not grant a right to appear before the Court of Appeal and such a right could not be inferred from Article 6 of the Convention either.

This decision was served on the applicant's counsel on 5 January 1995.

B. Relevant domestic law

S. 1 of the Compensation (Criminal Proceedings) Act 1969 ( Strafrechtliches Entschädigungsgesetz 1969) provides for compensation regarding pecuniary damages resulting from detention on remand. The conditions to be met are laid down in SS. 2 and 3.

S. 2 § 1 (a) concerns the case of unlawful detention on remand. S. 2 § 1 (b) mentions as conditions that the accused was acquitted, or that the proceedings against him were otherwise discontinued and the suspicion that he had committed the offence in question did not subsist, or that there was a bar to prosecution which had already existed at the time of his detention.

As regards the proceedings, S. 6 § 2 stipulates in particular that the court acquitting an accused, either ex officio or on the request of the detainee, has to decide whether the conditions laid down in S. 2 § 1 (b) are met. If the judgment was based on the verdict of a jury, the professional judges have to decide together with the jury. If an immediate decision is not possible, the court of first instance has to decide in the composition provided for in S. 13 § 3 of the Code of Criminal Procedure. (This provision deals with cases in which the court of first instance has to decide as a senate of three judges.)

S. 6 § 3 provides that prior to the decision the person concerned has to be heard. If necessary, evidence has to be taken insofar as it has not already been taken in the criminal proceedings.

S. 6 § 5 states that the detainee and the Prosecutor's Office have a right to appeal to the superior court which can take, if necessary, further evidence.

According to S. 6 § 7 the final decision in these proceedings is binding.

If the said courts find that the conditions under S. 2  are met, the injured person has to apply to the Auditor General’s Department ( Finanzprokuratur ) for acknowledgement of his claim within three months. If the claim is partly or fully refused, the person concerned has to institute civil court proceedings against the Republic of Austria (SS. 7 and 8).

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the lack of a public hearing or public pronouncement of the decisions in the proceedings relating to his compensation claim for detention on remand.

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

3. Further, he complains under Article 6 § 1 of the Convention that the Graz Regional Court was not an impartial tribunal. He alleges that the three judges deciding on his compensation claim had already sat in the criminal proceedings against him and had, in these proceedings, rejected his requests for the taking of evidence. He also complains that the proceedings were unfair in that the Graz Court of Appeal did not take his submissions relating to the conviction of his co-accused into account.

4. Finally, the applicant complains under Article 5 § 5 that he was not granted compensation for his detention on remand.

PROCEDURE

The application was introduced on 5 July 1995 and registered on 30 August 1995.

On 15 January 1997 the Commission decided to communicate the applicant’s complaints concerning the lack of a public hearing or public pronouncement of the decisions in the proceedings relating to the applicant’s compensation claim for detention on remand, as well as the complaint that the reasoning of the Graz Court of Appeal dismissing his compensation claim violated the presumption of innocence, and to adjourn the proceedings pending the Court’s judgments in the cases of Szücs   and Werner v. Austria. On 9 December 1997 the Commission decided to ask the respondent Government to submit their observations following the Court’s judgments of 24 November 1997 in the cases of Szücs and Werner v. Austria.

The Government’s written observations were submitted on 18 February 1998. The applicant replied on 17 April 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about the lack of a public hearing or public pronouncement of the decisions in the proceedings relating to his compensation claim for detention on remand.

Article 6 § 1 reads as follows:

“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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

The Government having regard to the Court’s judgments of 24 November 1997 in the cases of Szücs and Werner v. Austria (Reports of Judgments and Decisions 1997-VII) do not dispute the admissibility and merits of this part of the application. The applicant has not made any submissions.

The Court considers that this part of the case raises complex issues of law and of 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.

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

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 present case has to be distinguished from the Sekanina v. Austria case (Eur. Court HR, judment of  25 August 1993, Series A no. 266-A). They argue that what was decisive in the Sekanina case was the fact that the courts examined the question on the basis of the file, thereby replacing the jury’s evaluation of the evidence.  Thus,  Article 6 § 2 only prohibits that a court deciding on a compensation claim for detention on remand undertakes a new assessment of the claimant’s guilt on the basis of the file, while it is permissible to rely on the verdict of the jury and the reasons contained in the record of the jury’s deliberations. In conclusion the Government submit that, in the present case,  the Graz Court of Appeal did no more than repeat the reasons given in the record of the jury’s deliberations. They finally point out that the above view was also shared by the Austrian Constitutional Court which, upon request of the Graz Court of Appeal, ruled on the constitutionality of  S. 2 § 1 (b) of the 1969 Act.

The applicant contests the Government’s view. He submits that it cannot be held against him, if the suspicion against him has not been dissipated. He points out that, at the trial, he made several requests for the taking of evidence with the aim of proving his innocence which were, however, rejected by the court. Further, he emphazises that the Constitutional Court in its above mentioned decision stated that an amendment of S. 2 § 1 (b) would be desirable.

The Court considers, in the light of the parties’ submissions, that this part of the case raises complex issues of law and of 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.

3. Further, the applicant complains under Article 6 § 1 of the Convention that the Graz Regional Court was not an impartial tribunal, as the three judges deciding on his compensation claim had already sat in the criminal proceedings against him. He also complains that the proceedings were unfair in that the Graz Court of Appeal did not take his submissions relating to the conviction of his co-accused into account.

a. The Court will first deal with the applicant’s complaint about the alleged lack of the Graz Regional Court’s impartiality.

However,  the Court  “may only deal with the matter after all domestic remedies have been exhausted”, in accordance with Article 35 § 1 of the Convention. The Court recalls the Commission’s constant case-law that in order to exhaust domestic remedies the person concerned must have raised before the national authorities, at least in substance, the complaint he puts before the Convention organs (see for example No 16839/90, Dec. 12.4.94, D.R. 77, p. 22; No. 16810/90, Dec. 9.9.92, D.R. 73, p. 136).

The Court notes that the Graz Regional Court’s decision of 25 November 1993, refusing the applicant’s compensation claim was signed by judge Schaffernak who had been the presiding judge in the criminal proceedings against him. However, the applicant, represented by counsel, did not raise the issue of  an alleged lack of impartiality in his appeal against this decision. He only complained that it was not clear from the said decision whether it had been taken by a single judge or by a senate.

In conclusion, the Court finds that, as to this part of his application, the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

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

b. As to the applicant’s complaint that the Graz Court of Appeal did not take the results of his submissions relating to his co-accused into account, the Court recalls that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (Eur. Court HR, Schenk v. Switzerland jugment of 12 July 1988, Series A no. 140, p. 29, § 45).

In the present case, the Graz Court of Appeal found that the question whether the suspicion against the acquitted person had been dissipated, within the meaning of S. 2 § 1 (b) of the 1969 Act, had to be assessed on the basis of the reasons given by the jury. It concluded that the results of the proceedings against the applicant’s co-accused were irrelevant. Having regard to the proceedings as a whole, there is no appearance that the applicant, represented by counsel, could not duly put forward his arguments or that the proceedings were otherwise unfair. There is, thus, no appearance of a violation of  Article 6 § 1 of the Convention.

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

4. Finally, the applicant complains under Article 5 § 5 of the Convention that he was not granted compensation for his detention on remand.

Article 5, so far as relevant, provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

5. Everyone who has been the victim of arrest or detention in contravention of                           the provisions of this article shall have an enforceable right to compensation.”

The Court recalls that Article 5 § 5 only applies if a breach of any other provision of Article 5 has been established (Eur. Court HR, Keus v. the Netherlands judgment of 25 October 1990, Series A no. 185-C, p. 68, § 29).  The Court notes that the applicant has not substantiated his complaint. In particular, he has not alleged that his detention on remand was not in conformity with Article 5 § 1 (c). Moreover, the Court cannot ex officio examine the compatibility of the applicant’s detention with this provision, as he was released on 1 September 1993 that is more than six months before the introduction of the application on 5 July 1995.

In these circumstances, there is no basis to examine the applicant’s complaint under Article 5 § 5.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits , the applicant's complaints concerning the lack of a public hearing or public pronouncement of the decisions in the proceedings relating to his compensation claim for detention on remand , as well as his complaint that the reasoning of the Graz Court of Appeal dismissing his compensation claim violated the presumption of  innocence;

DECLARES INADMISSIBLE the remainder of the application.

S. DOLLÉ N. BRATZA

    Registrar               President

[Note1] Please check if public or not. If not, put initials only. Name and, in capital letters, surname ; corporative name in capital letters ; no translation of collective names.

[Note2] First letter in capital letters plus the article according to normal speech.

[Note3] In small letters.