CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 septembre 1991

.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. 13126/87                       by Karl SEKANINA                       against Austria             The European Commission of Human Rights sitting in private on 3 September 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   K. ROGGE, Deputy to the 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 21 April 1987 by Karl SEKANINA against Austria and registered on 10 August 1987 under file No. 13126/87;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to :   -        the Commission's decision of 4 September 1989 to bring the         application to the notice of the respondent Government and         invite them to submit written observations on its         admissibility and merits;   -        the observations submitted by the respondent Government on         2 December 1989 and the observations in reply submitted         by the applicant on 9 January 1990;           Having deliberated;           Decides as follows:     THE FACTS           The applicant, an Austrian citizen born in 1937 who resides in Vienna, is represented by Mr.   Wolfgang Moringer, a lawyer practising in Linz.   He complains that the presumption of innocence has been violated by the fact that compensation for his detention on remand had been refused after he had been acquitted.           The facts as submitted by the parties may be summarised as follows.           The applicant was detained on remand for about one year, from 1 August 1985 to 30 July 1986, in connection with criminal proceedings in which he was suspected of having murdered his wife.   She died following a fall out of a window of the matrimonial home on the fifth floor of an apartment house in Linz.           Various remedies by which the applicant sought to challenge the murder suspicion during his detention were rejected.   Eventually he was tried on a charge of murder and on a further charge of illegal coercion against a fellow prisoner whom he had allegedly threatened to kill if he disclosed certain admissions concerning the murder charge which the applicant had allegedly made during his detention.           However, on 30 July 1986 a Court of Assizes (Geschworenen- gericht) at the Regional Court (Landesgericht) of Linz acquitted the applicant of both charges.   The jury rejected the murder charge by a verdict of seven to one, the coercion charge by a unanimous verdict. In the jury's memorandum (Niederschrift der Geschworenen) it was stated that, concerning the question of murder, "there was no conclusive evidence to justify Mr.   Sekanina's conviction of murder.   According to Prof.   Kaiser's medical expert opinion Mrs.   Sekanina would still have been able to call her husband a murderer.   The statements of some witnesses appear incredible to us" ["keine stichhaltigen Beweise, um Herrn Sekanina als Mörder zu verurteilen.   Lt. medizin.   Gutachten von Prof.   Kaiser hätte die Frau Sekanina ihren Mann noch als Mörder bezeichnen können.   Die Aussagen einiger Zeugen erscheinen uns unglaubwürdig"].   Concerning the question of coercion the jury stated in the memorandum "(according to their testimony) the other three fellow prisoners have not heard anything of a serious threat of killing" ["Die anderen 3 Mithäftlinge haben nichts von einer schweren Drohung mit dem Tod gehört (lt. ihrer Zeugenaussagen)"].           The applicant was released immediately after the reading of the verdict.   The public prosecution did not appeal against the applicant's acquittal.           Subsequently, the applicant requested a State contribution to the necessary costs of his defence (in accordance with Section 393 a of the Code of Criminal Procedure) and compensation for pecuniary damage suffered as a result of the fact that he had been kept in detention.   The public prosecutor's office raised objections as to the quantum of the first claim.   As regards the second claim, it requested the Court to find that the conditions of Section 2 para. 1 b of the Act on Compensation in Criminal Matters (strafrechtliches Entschädigungsgesetz) were not met as the suspicion raised in the criminal proceedings against the applicant had not been entirely dissipated.           The Regional Court of Linz, sitting without a jury, dealt with the matter in two separate decisions.           On 12 December 1986 it ordered the State to pay a contribution of 22,546.50 AS towards the necessary costs of the applicant's defence.   The applicant's appeal against this decision, by which he demanded the award of a higher amount, was rejected by the Linz Court of Appeal (Oberlandesgericht) on 15 January 1987.           The applicant's claim to be awarded compensation for pecuniary damage was rejected by the Regional Court on 10 December 1986.   The Court found that despite the applicant's acquittal the suspicion against him had not been dissipated in the sense that no further argument could be drawn from this suspicion as to his guilt ("Der Verdacht ist erst dann entkräftet, wenn alle gegen den Verhafteten sprechenden Verdachtsmomente widerlegt worden sind, so dass sie aufgehört haben, ein Argument für die Schuld des Verdächtigen zu bilden").   There were still important elements of suspicion: repeated threats, attacks and aggressions, satisfaction at his wife's death, admissions made to a fellow prisoner, financial difficulties, and unsuccessful attempts to be given the custody of the children. The vote of the jury also showed that it had acquitted the applicant only because it gave him the benefit of the doubt.           On 25 February 1987 the Linz Court of Appeal confirmed this decision.   It rejected the applicant's argument that the relevant provision of the Act on Compensation in Criminal Matters (Section 2 para. 1b) was unconstitutional and infringed Article 6 para. 2 of the Convention because it required, beyond an acquittal, dissipation of suspicion.   The presumption of innocence was to be observed in the proceedings prior to the judgment, but did not give a right to compensation to every detained person in case of his acquittal.   The exclusion of compensation in the challenged provision was not based on guilt, but on continued existence of suspicion.   The finding by a court that such a suspicion still existed did not infringe the presumption of innocence.   In the present case it could not be concluded merely from the vote of the jury that the suspicion had been dissipated.   More important was the memorandum of the jury which implied doubts in this respect.   In any event the court competent to decide on the compensation issue was not bound by the acquittal as regards the question of suspicion.   This suspicion had repeatedly been confirmed in the investigation, in particular by the decisions prolonging the applicant's detention on remand.   The Regional Court had rightly described the elements justifying the assumption of continued suspicion.   In addition there was further evidence to support this assumption in the light of the trial.   COMPLAINT           The applicant alleges a violation of Article 6 para. 2 of the Convention.   PROCEEDINGS           The application was introduced on 21 April and registered on 10 August 1987.           On 4 September 1989 the Commission decided to give notice of the application to the respondent Government and to invite them to submit observations in writing on the admissibility and merits of the application.           On 1 December 1989 the Government submitted their observations to which the applicant replied on 9 January 1990.   THE LAW           Article 6 para. 2 (Art. 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 applicant alleges a violation of this provision in that, despite his acquittal, the courts assumed a continuing suspicion against him when refusing his claim to be compensated for his detention.   The Commission notes that the relevant decisions were taken under Section 2 para. 1 (b) of the Act on Compensation in Criminal Matters which provides for compensation, inter alia, if the person concerned has been acquitted and the suspicion against him has been dissipated.   The Austrian courts interpret this provision in the sense that the acquittal must also have removed any suspicion against the accused.           The Government submit that the European Court of Human Rights repeatedly found it compatible with the presumption of innocence, as laid down in Article 6 para. 2 (Art. 6-2), to refer to a continued state of suspicion where this did not amount to a determination of the accused person's guilt (cf.   Adolf judgment of 26 March 1982, Minelli judgment of 25 March 1983, and the Lutz, Englert and Nölkenbockhoff judgments of 25 August 1987, Eur.   Court H.R., Series A nos. 49, 62 and 123). The Government contend that the principles developed in these judgments also apply in the present case.   In this respect the Government emphasise in particular that the statements contained in the relevant Austrian court decisions did not amount to a finding of guilt, but were merely based on a state of suspicion, and thus compatible with the presumption of innocence as laid down in Article 6 para. 2 (Art. 6-2) of the Convention.           The applicant contests this.   He observes that in the present case it was only for technical reasons that the decision on the consequences of his acquittal was not entrusted to the Court of Assizes itself.   In substance this decision was part of the determination of the criminal charges against him, and after his acquittal there was in his opinion no longer any room for maintaining a suspicion against him, since the jury's verdict should be the final word on this question.           The Commission considers that the case raises complex issues concerning the interpretation of Article 6 para. 2 (Art. 6-2) of the Convention. The application cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 6-2) of the Convention, but requires to be examined as to the merits.           For these reasons, the Commission by a majority             DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.       Deputy to the Secretary                  President of the Commission to the Commission            (K. ROGGE)                           (C.A. NØRGAARD)