CONCURRING OPINION OF JUDGE MATSCHER

(Trans l ation)

I agree with the outcome - a finding that the contested decisions of the Linz Regional Court and Appeal Court disregarded the presumption of innocence.

Nevertheless I should like to stress that the conditions for a verdict of acquittal and the conditions which must be satisfied for the grant of compensation within the meaning of section 2(1)(b) of the 1969 Law are not identical. In particular, an acquittal may cover a wide variety of situations. For example, the deed in question may not constitute a criminal offence under the criminal law, or the accused may have committed an act which was in itself punishable but while he was in a state in which he was not responsible for his actions, or the court may be convinced of the accused ’ s innocence, or again there may be insufficient evidence to convict (see Article 259 para. 3 of the Code of Criminal Procedure).

In the present case it is clear that the acquittal was based on the last of the above-mentioned possibilities. Accordingly, it would seem to me to be difficult to affirm (see paragraph 30 of the judgment) that the finding in a subsequent decision relating to a compensation procedure that suspicion subsists leaves open a doubt as to the correctness of the Assize Court ’ s decision.

I have nevertheless reached the conclusion that there was a violation of the Convention and this is on account of some of the reasons given in the contested decisions, which went beyond what is required under section 2(1)(b) of the 1969 Law as grounds for rejecting a claim for compensation. I do, however, accept that - given the wording of the provision in question - the statement of such grounds compels the court to engage in a balancing act between a lack of adequate reasons and the risk of offending against the presumption of innocence.

It would therefore be desirable to amend the text of section 2(1)(b) of the 1969 Law.

[*]  The case is numbered 21/1992/366/440.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 266-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.