Resolution ResDH(2006) 2

concerning judgments of the European Court of Human Rights in cases pertaining to various violations of the right to a fair trial

in proceedings regarding compensation for detention on remand

(Szücs against Austria and six other cases – see appendix)

(Adopted by the Committee of Ministers on 22 February 2006 , at the 955th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of former Article 54 and of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the case of Szücs and six other cases (see details in appendix) and transmitted to the Committee of Ministers once they had become final under either former Article 54 or Articles 44 and 46 of the Convention;

Recalling that all these cases originated in applications lodged against Austria in the years 1992-1997 and that the European Commission of Human Rights or the European Court of Human Rights declared admissible complaints regarding the right to a fair trial in the proceedings brought by the applicants in order to obtain compensation for their detention on remand following the discontinuance of, or the applicants ’ acquittal in, criminal proceedings at the basis of the detentions and / or their right to the presumption of innocence;

Recalling that the European Court first held in the Szücs and Werner judgments of 24 November 1997 that there had been violations of the right to a fair trial in that there had been no public hearing or public pronouncement of judgments and a violation of the principle of equality of arms (in the Werner case only), due to the court ’ s failure to communicate the principal public prosecutor ’ s observations to the applicant (violations of Article 6, paragraph 1);

Recalling that the European Court subsequently held in the Asan Rushiti judgment of 21 March 2000 that in the compensation proceedings brought in that case had also been a violation of the presumption of innocence in that the domestic court had found that there was a continuing suspicion against the applicant despite his final acquittal, and that the Court also found similar violations of the presumption of innocence in the cases of Lamanna, Vostic and Demir;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention, which Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of Austria to inform it of the measures which had been taken in consequence of the European Court ’ s judgments, having regard to Austria ’ s obligation under Article 46, paragraph 1, of the Convention to abide by them;

Whereas during the examination of the cases by the Committee of Ministers, the government of Austria gave the Committee information about the measures taken or available to grant the applicants full redress for the violations found ( restitutio in integrum ) and to prevent new violations of the same kind as those found in the present judgments; this information appears in the appendix to this resolution;

Having satisfied itself that the government of Austria paid all the applicants the sums awarded by the European Court for costs and expenses (see details in appendix);

Noting with satisfaction that Austrian law allowed the reopening of the impugned proceedings and that these were reopened following the applicant ’ s request in the Werner case; noting also that no such request was formulated in the other cases;

Noting also with satisfaction the fact that following these judgments the direct effect of the European Court of Human Rights and of the judgments of the European Court appears to have significantly contributed to preventing new, similar violations of the Convention, but noting nevertheless with some concern the time needed to incorporate the Convention ’ s requirements in new legislation;

Recalling, on this last point, the Committee of Ministers ’ Declaration of 12 May 2004 on ensuring the effectiveness of the implementation of the Convention at national and European levels and the various Recommendations referred to therein, in particular Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing law and administrative practice with the standards laid down in the Convention,

Declares, after having examined the information supplied by the government of Austria , that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases.

Appendix to Resolution ResDH(2006)2

Information provided by the Government of Austria concerning the measures taken to comply with the European Court ’ s judgments

I. P ayment of costs and expenses

Case

Application

Date of judgment

Amounts awarded by the Court

Time-limit for payment

Date of payment

Zoltan Szücs

20602/92

24/11/1997

ATS 98,501 and 50 groschen

24/02/1998

12/01/1998

Johannes Werner

21835/93

24/11/1997

ATS 128,501 and 40 groschen

24/02/1998

09/01/1998

Asan Rushiti

28389/95

21/03/2000 , final on 21/06/2000

ATS 61,318 and 80 groschen

21/09/2000

05/05/2000

Salvatore Lamanna

28923/95

10/07/2001 , final on 10/10/2001

ATS 75,135

10/01/2002

13/11/2001

Franz Johann Weixelbraun

33730/96

20/12/2001 , final on 20/03/2002

ATS 60,000

20/06/2000

24/02/2002

Snjezana Vostic

38549/97

17/10/2002 , final on 17/01/2003

EUR 5,000

17/04/2003

24/02/2003

Musa Demir

35437/97

05/11/2002 , final on 05/02/2003

EUR 5,100

05/05/2003

II. Individual measures

Except for the Werner case, no request for individual measures has been made known to the government. It is noted that the possibility of reopening, after a judgment of the European Court (see Recommendation of the Committee of Ministers R(2000)2), is provided by section 363a of the Austrian Code of Criminal P rocedure.

In the Werner case, f ollowing the European Court ’ s judgment, the Supreme Court, by judgment of 25 November 1998 , set aside the decisions of the domestic courts and referred the case to the Judicial Chamber of the Vienna Regional Court for reopening of the proceedings. On 21 April 1999 the Chamber, after having held a public hearing, dismissed the applicant ’ s claim for compensation under the Criminal P roceedings Compensation Act. The applicant ’ s appeal before the Vienna Court of Appeal was also dismissed on 12 July 1999 . As the applicant submitted no further appeal, this judgment became final.

III. General measures

Introduction

The Austrian authorities began work on amending the Compensation (Criminal P roceedings) Law of 1969 following the first judgments of the European Court which were delivered on 24 November 1997 . A new Criminal Compensation Law (“Law on compensation of damages resulting from criminal-judicial detention or condemnation – StEG 2005”) was issued on 15 November 2004 and entered into force on 1 January 2005 . It is available on the internet at www.ris.bka.gv.at . It was supplemented by the Ministry of Justice Decree No. 34 “on the enforcement of claims for damages against the Federal Government under the Criminal Compensation Law 2005” ( 08/02/2005 ).

In the interim, domestic courts ’ compliance with the European Court ’ s judgments had been ensured by the latter ’ s wide publication and dissemination and their direct effect in Austrian law (see below, interim measures).

New legislation

The new Law mentioned above provides that courts with jurisdiction in civil matters are now competent to adjudicate on claims regarding compensation for detention on remand.

As regards the right to the public hearing and a public pronouncement of judgments, as well as the principle of equality of arms, these are now explicitly safeguarded by the new compensation procedure which is outlined as follows: (a) The procedure is initiated by the injured party who writes to the Federal Government, through the office of the P rocurator Fiscal, inviting it to send him or her, within three months, a declaration concerning whether or not it recognises the claim for compensation; (b) Courts with jurisdiction in civil matters are subsequently competent to decide on the claim after a public hearing; they may grant the injured party the assistance of a lawyer, in accordance with the relevant provisions of the Code of Civil P rocedure. On application by a party, the public may be excluded from a hearing if there are facts discussed which constitute official secrets.

As regards the presumption of innocence, following final acquittal, the possibility of voicing suspicions, including those expressed in the reasons for acquittal, regarding an accused person ’ s innocence, is no longer possible. Necessary amendments to this effect have been introduced in the new Law (see notably Sections 3 and 4).

It is to be noted that according to the new Law, state liability may never be excluded or restricted in cases of illegal detention in custody if the arrest or detention has taken place by a violation of the provisions of Article 5 of the Convention. The relevant judgments of the European Court , as well as every domestic judgment which pronounces the illegality of an arrest or detention, are binding for further proceedings on a claim of compensation.

Interim measures adopted by Austria

The development of domestic case law in conformity with the European Court ’ s judgments was assisted by the prompt publication of all judgments (except Weixelbraun and Demir) in the widely-read law journal Österreichische Juristenzeitung (ÖJZ) (1998, 233 ff; 2001, 155ff and 910 ff; 2003, 196 ff) and/or in the Newsletter of the Österreichisches Institut für Menschenrechte ( www.sbg.ac.at/oim ), 1997/6 and 2002/5. The European Court ’ s judgments have also been extensively discussed in legal literature (see e.g. relevant articles in ÖJZ 2002, 741ff and 2003, 410ff).

The domestic case-law development was notably confirmed by the Austrian Supreme Court ’ s judgment of 05/08/2003 (11Os 44/03), that confirmed, inter alia, public hearing and pronouncement in cases similar to the present.

In this context, it is to be noted that all judgments of the European Court relating to criminal proceedings are sent by the Ministry of Justice to the P resident of the Higher Regional Court where the violation had occurred, with the request to inform all competent judicial authorities as appropriate. Austrian courts are also systematically informed through summaries in German of all significant judgments of the European Court regarding Austria , which are available on the database of the Ministry of Justice. This database, internally accessible to all judges and public prosecutors, also provides a link to the HUDOC system of the European Court .

IV. The efforts to improve the effectiveness of the implementation of the Convention at domestic level

The government is at present devoting considerable resources to the implementation of the Committee of Ministers ’ Declaration of 12 May 2004 on ensuring the effectiveness of the implementation of the Convention at national and European levels and the various Recommendations referred to therein, in particular Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing law and administrative practice with the standards laid down in the Convention.

V. Conclusion

The government considers, in view of all individual and general measures adopted, that Austria has satisfied its obligation under Article 46, paragraph 1, of the Convention (former Article 53) to abide by the European Courts ’ judgments in the present cases.