CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF   Application No. 12070/86 by Manfred BACH against Austria             The European Commission of Human Rights sitting in private on 4 May 1987, the following members being present:                         MM. C.A. NØRGAARD, President                         E. BUSUTTIL                         G. JÖRUNDSSON                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 25 February 1986 by Manfred BACH against Austria and registered on 1 April 1986 under file No. 12070/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a German citizen, born in 1953, and living in Kaiserslautern.   He is represented by Mr G. Schantl, a lawyer practising in Ettlingen.   1.       The applicant has lodged a previous application (No. 9661/82) based on the following facts:   From 30 January 1974 until 3 February 1975 he had been detained on remand in Austria on the suspicion of being a drug pedlar and of having committed theft and smuggling.   An indictment against the applicant and some co-accused was filed in January 1975.   A trial started in May 1975 but, as the applicant did not attend, the proceedings against him had to be severed from the proceedings against his co-accused.           In February 1976 the Austrian proceedings against the applicant were stayed in view of the fact that the charges levelled against him had become the object of criminal proceedings instituted against him in the Federal Republic of Germany.   On 27 November 1980 the applicant was acquitted by the Kaiserslautern Regional Court (Landgericht) on the ground that for factual reasons it could not be established that the applicant had dealt with drugs.   That judgment became final.           In consequence of the above acquittal the Public Prosecutor in Graz decided on 8 April 1981 that no further action would be taken against the applicant.           On 8 July 1981 the competent chamber (Ratskammer) in criminal matters of the Regional Court (Landesgericht) in Graz refused the applicant's request for compensation under Section 2 (1)(b) of the Austrian Act on Compensation in Criminal Matters (Strafentschädigungs- gesetz).   The Court held that the conditions for such a claim were not fulfilled because the suspicion which had given rise to the applicant's arrest and subsequent detention on remand had not been invalidated by the judgment of the Kaiserslautern Court.           The applicant's appeal (Beschwerde) was rejected by the Court of Appeal in Graz on 20 August 1981.   The Court stated that it had not been possible to hear the applicant personally in accordance with Section 6 (3) of the Act on Compensation in Criminal Matters because the applicant had not complied with several summonses issued by the Austrian police.   In view of the fact that the record (Verhandlungsprotokoll) concerning the Kaiserslautern trial did not contain the complete statements of the witnesses heard by the Kaiserslautern trial court the Austrian appellate court pointed out that it had to determine the applicant's claim mainly on the basis of the evidence obtained in the Austrian investigation proceedings.   The appellate court inferred from these statements that the suspicion against the applicant had not been invalidated by his acquittal.           A further appeal was rejected by the Supreme Court (Oberster Gerichtshof) on 8 October 1981 as being inadmissible.           Another request for compensation under Section 2 (1)(a) of the Act on Compensation in Criminal Matters was likewise rejected.           Before the Commission the applicant complained in his previous application that his requests to acknowledge his compensation claim were wrongly rejected without a public oral hearing, without a hearing of witnesses, without communication to him of the comments submitted by the Attorney General, and without public pronouncement of the decisions.   He invoked, in particular, Article 6 of the Convention.           The previous application was declared inadmissible by the Commission on 14 July 1983.   The Commission considered, inter alia, that Article 6 of the Convention was not applicable to the proceedings in question.   It noted that claims under the Act on Compensation in Criminal Matters did not require that a public official acted in a guilty manner.   Compensation could even be obtained where the law had not been violated.   Claims under the Act on Compensation in Criminal Matters were therefore in no way assimilated or comparable to private law claims for damages relating to tort liability.   Furthermore it was pointed out that the right to liberty, interferences with which can be compensated according to the Act on Compensation in Criminal Matters, was not a civil right within the meaning of Article 6 of the Convention.   2.       The present application is based on the following facts: After the decision of the Austrian criminal court refusing compensation for detention had become final, the applicant brought a civil action before the Innsbruck Regional Court again claiming such compensation.   He argued that only the trial court which acquits a defendant is competent to decide whether or not this defendant has a compensation claim under Section 6 (2) of the Act on Compensation in Criminal Matters.   As he had been acquitted by a German court the Austrian criminal court at Graz had not been competent to decide whether or not he qualified for compensation.   His claim, which was to be considered as a civil right within the meaning of Article 6 para. 1 of the Convention, therefore had to be determined by a civil court. The action was dismissed on 5 November 1983 on the ground that, according to Section 6 (7) of the Act on Compensation in Criminal Matters, the decision given in the preceding proceedings by the Court of Appeal in Graz on 20 August 1981 was binding.   The judgment of 5 November 1983 was confirmed by the Supreme Court on 16 September 1985.           This Court rejected the applicant's argument that the Austrian criminal court could only give a binding decision under Section 6 (2) of the Act on Compensation in Criminal Matters in relation to circumstances established in the course of the investigation proceedings in Austria while it was not competent to take evidence with regard to circumstances leading to his acquittal by a German court.   The Supreme Court pointed out that under Article 3 of the Treaty on Mutual Assistance in Legal Matters (Rechtshilfeüberein- kommen) the Austrian criminal courts could have requested the Kaiserslautern Regional Court to submit files or other documents as evidence in the applicant's case.   The Supreme Court further stated that Section 6 (7) of the Act on Compensation in Criminal Matters was compatible with constitutional provisions, in particular with Article 6 of the Convention.   It considered the latter provision to be applicable to the proceedings in question, stating that a claim by a private person against the State for compensation for detention on remand was a civil right as it had eventually to be determined by the courts.   It then stated that the binding effect of the decisions given by the criminal courts would be incompatible with Article 6 of the Convention only if the proceedings before the criminal courts violated that provision.   Referring to the Austrian reservation with regard to Article 6 the Supreme Court considered, however, that the proceedings in question did not violate any of the provisions of this Article.     COMPLAINTS           The applicant complains that his civil action was rejected without taking of evidence simply on account of the binding effect of the decisions given by the Austrian criminal courts in proceedings which in his opinion had not been in conformity with Article 6 of the Convention.   The proceedings before the criminal courts relating to his claim for compensation under the Act on Compensation in Criminal Matters violated Article 6 because:   - there had been no public oral hearing and no public pronouncement   of the decision;   - there had been no taking of evidence;   - he was not informed about the comments submitted by the Attorney   General.           Since the civil courts, being bound by the decisions of the criminal court, could not correct the result obtained in the proceedings before the criminal courts, he was again deprived of a fair trial.           The applicant requests the Commission to reconsider, in the light of the Austrian Supreme Court's case-law, its decision according to which Article 6 is not applicable to proceedings concerning a claim for compensation of a person who was acquitted of an accusation in relation to which he had been detained on remand.   He considers that his present application is based on relevant new facts, mainly the civil proceedings which he instituted subsequent to his previous application.   THE LAW           The applicant has complained that, in view of the binding effect of the decision given by an Austrian criminal court denying his entitlement under Section 2 (1)(b) of the Act on Compensation in Criminal Matters to compensation for his detention on remand, his subsequent action for damages was likewise dismissed by the competent Austrian civil courts without a fair hearing.           It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures to everyone the right to a fair and public hearing in the determination of his civil rights and obligations.   However, the Commission, in its decision of 14 July 1983 rejecting the applicant's previous application No. 9661/82, has held that Article 6 (Art. 6) of the Convention does not apply to proceedings relating to compensation claims under the Act on Compensation in Criminal Matters because claims under this Act are "in no way assimilated or comparable to private law claims for damages relating to tort liability" and can therefore not be considered to constitute "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1).   The Commission sees no reason to depart from this jurisprudence. The fact that, as the Austrian Supreme Court pointed out, a claim under the Act on Compensation in Criminal Matters has to be determined by the courts, is not in itself decisive for the qualification of the right in question to be of private or public law character.           Moreover, the Commission considers that the binding effect under Section 6 (7) of the Act on Compensation in Criminal Matters of a decision given by a criminal court, finding no basis for compensation under the Act in question, is compatible with Article 6 (Art. 6) of the Convention.           It follows that, the present application must, in any case, be rejected as being manifestly ill-founded in the sense of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission              President of the Commission               (H.C. KRÜGER)                             (C.A. NØRGAARD)