CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1994

.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. 20111/92                       by Bernhard KLEINLERCHER                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 12 January 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 14 April 1992 by Bernhard KLEINLERCHER against Austria and registered on 11 June 1992 under file No. 20111/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case as they have been submitted by the applicant may be summarised as follows:   A.     The particular circumstances of the case         The applicant is an Austrian national born in 1965 and residing in Vienna. Before the Commission he is represented by Mr. Pochieser, a lawyer practising in Vienna.         On 11 August 1988, in the course of the evacuation of a building in Vienna, which was to be demolished, various persons tried to prevent the demolition and resisted the police enforcing the evacuation. Nine police officers were injured. The offenders escaped to a nearby building which was then cordoned off. This building was the applicant's place of residence.          On the following morning, on the basis of an oral arrest warrant issued by the Investigating Judge at the Vienna Regional Court (Landes- gericht), the applicant and numerous other persons were arrested and detained. Mr. Pochieser was the applicant's counsel in the ensuing criminal proceedings.         On 14 August 1988 the Investigating Judge opened preliminary investigations (Voruntersuchung) against the applicant. Furthermore, he ordered the applicant's detention on remand. Referring to S. 180 para. 2 of the Code of Criminal Procedure (Strafprozeßordnung), the Investigating Judge found that there was a reasonable suspicion that the applicant, together with accomplices, had committed the offence of resisting a public official in the exercise of official authority (Widerstand gegen die Staatsgewalt), of having caused bodily harm to police officers and of having participated in a riot on 11 August 1988. There was also reasonable suspicion that he again committed the offence of resisting a public official in the exercise of official authority on 12 August 1988. He also considered that there was a danger of collusion, danger of repetition of the offences and a danger of the applicant's absconding.         On 25 August 1988 the applicant was released from detention on remand on the ground that, following the subsequent police investigations, no reasonable suspicion persisted.         On 4 November 1988 the Investigating Judge at the Vienna Regional Court discontinued the criminal proceedings against the applicant.         On 30 November 1988 the applicant filed two requests for compensation regarding his detention, referring to S. 2 para. 1 (a) of the Criminal Proceedings (Compensation) Act (Strafrechtliches Entschädigungsgesetz), which concerns cases of unlawful arrest and detention, and to S. 2 para. 1 (b) of this Act, which concerns cases of acquittal or otherwise discontinuation of criminal proceedings. These requests were dealt with by different courts in two sets of proceedings.         On 7 February 1990, in the first set of proceedings, the Judges Chamber (Ratskammer) of the Vienna Regional Court, referring to S. 2 para. 1 (b) of the Criminal Proceedings (Compensation) Act, dismissed the applicant's claim for compensation regarding the discontinuation of the investigations against him.         On 28 June 1990 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal against the decision of 7 February 1990. The Court of Appeal confirmed that the conditions for compensation under S. 2 para. 1 (b) of the Criminal Proceedings (Compensation) Act were not met. In particular, the suspicion against the applicant had not been dissipated.         On 12 December 1990, in the second set of proceedings, the Vienna Court of Appeal, sitting as court of first instance, dismissed the applicant's claim for compensation under S. 2 para. 1 (a) of the Criminal Proceedings (Compensation) Act. The Court of Appeal considered that the applicant's arrest had been lawful and the detention on remand had been justified.         On 26 September 1991 the Supreme Court (Oberster Gerichtshof) dismissed the applicant's appeal against the Court of Appeal's decision of 12 December 1990. The Supreme Court confirmed that at the time of the applicant's arrest there had been a strong suspicion that he had taken part in supplying Molotov cocktails, weapons, and other objects to be used in resisting the police officers, and that he had thus, by aiding and abetting the resistance, been directly involved in the criminal offences committed on the occasion of the evacuation. This decision was served on 14 October 1991.   B.     Relevant domestic law   1.     Detention on remand         Under S. 180 paras. 1 and 2 of the Code of Criminal Procedure (Strafprozeßordnung), a person may be held in detention on remand - where there are serious grounds for suspecting him of having committed a criminal offence - if there is a risk of his absconding, of collusion or of repetition of the offences.   2.     Compensation regarding pecuniary damages resulting from detention       on remand         The Criminal Proceedings (Compensation) Act (Strafrechtliches Entschädigungsgesetz) 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 para. 1 (a) concerns the case of unlawful detention on remand. S. 2 para. 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.   COMPLAINTS   1.     The applicant complains under Article 5 paras. 1 and 5 of the Convention about his allegedly unlawful arrest and detention on remand and the refusal of compensation in this respect.   2.     He complains under Article 6 para. 2 of the Convention about a violation of the presumption of innocence in that, despite the discontinuation of the proceedings against him, the Austrian courts, in particular the Supreme Court, assumed a continuing suspicion against him when rejecting his compensation claims. He also invokes Article 6 paras. 1 and 3 in this respect.   3.     The applicant further complains under Article 8 of the Convention about identification measures (erkennungsdienstliche Maßnahmen) allegedly taken by the police upon his arrest.   THE LAW   1.     The applicant complains under Article 5 para. 1 (Art. 5-1) of the Convention about his arrest and detention on remand. He further invokes Article 5 para. 5 (Art. 5-5) of the Convention regarding the refusal of compensation for his allegedly unlawful arrest and detention in the proceedings before the Vienna Court of Appeal and the Supreme Court.         The Commission notes that the applicant was arrested on the basis of an arrest warrant issued by the Investigating Judge at the Vienna Regional Court, and taken into detention on remand under S. 180 of the Austrian Code of Criminal Proceedings. The Investigating Judge suspected the applicant of having committed various offences in the course of the events on 11 and 12 August 1988. There is no indication that the applicant's deprivation of liberty was not "lawful" and "in accordance with a procedure prescribed by law" within the meaning of Article 5 para. 1 (Art. 5-1).         The remaining issue is whether there existed a reasonable suspicion, as required under Article 5 para. 1 (c) (Art. 5-1-c). A "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the persons concerned may have committed the offence (Eur. Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, p. 16, para. 32).         The Commission notes that the Investigating Judge, in his decision of 14 August 1988, referred in some detail to the applicant's role in the events on 11 and 12 August 1989. His reasoning as to the suspicion against the applicant was confirmed by the Vienna Court of Appeal and the Supreme Court in the ensuing compensation proceedings under S. 2 para. 1 (a) of the Criminal Proceedings (Compensation) Act.         In the circumstances of the present case, the Commission is satisfied that, on the basis of the investigation results at the early stage of the proceedings, there had been sufficient ground to suspect that the applicant had committed various criminal offences in the course of the above-mentioned events. Consequently, there had been a "reasonable suspicion' against him within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.         Accordingly, there is no appearance of a violation of the applicant's right to liberty under Article 5 para. 1 (Art. 5-1) of the Convention.         The question of compensation under Article 5 para. 5 (Art. 5-5) of the Convention does not, therefore, arise.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further complains under Article 6 para. 2 (Art. 6-2) of the Convention that, despite the discontinuation of the criminal proceedings against him, the Vienna Court of Appeal, in its decision of 12 December 1990, and the Supreme Court, in its decision of 26 September 1991, rejected his compensation claims on the ground of a continuing suspicion against him.         The Commission, even assuming compliance with the six-months' time-limit under Article 26 (Art. 26) of the Convention, notes that on 4 November 1988 the criminal proceedings against the applicant were discontinued, and that the applicant filed his request for compensation regarding his detention on remand on 30 November 1988. The decisions of the Vienna Court of Appeal and the Supreme Court refusing this request were a direct sequel to the discontinuation of the criminal proceedings against the applicant. Consequently, Article 6 para. 2 (Art. 6-2) may in principle be invoked with regard to the impugned decisions (cf. Eur. Court H.R., Englert judgment of 25 August 1985, Series A no. 123, p. 54, para. 35; Nölkenbockhoff judgment of 25 August 1985, Series A no. 123, p. 79, para. 35).         The Commission recalls that, following the discontinuation of criminal proceedings, only statements which reflect the opinion that the person concerned is guilty, and not statements which merely describe a state of suspicion, infringe the presumption of innocence (cf. Eur. Court H.R., Minelli judgment of 25 March 1983, Series A no. 62, p. 18, para. 37; Lutz judgment of 25 August 1987, Series A no. 123, pp. 24-26, paras. 58-64; Sekanina judgment of 25 August 1993, paras. 24-30, to be published in Series A no. 266).         In the present case, the Austrian courts concerned dismissed the applicant's compensation claim on the ground that, though the investigations against him had been discontinued, a suspicion persisted. The applicant failed to show that the reasoning of the Austrian courts amounted to any finding of criminal guilt.         The applicant's submissions in this respect do not, therefore, disclose any appearance of a violation of the further rights invoked by him.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant finally complains under Article 8 (Art. 8) of the Convention about identification measures taken by the Austrian police authorities upon his arrest. The applicant failed to substantiate this matter. The Commission, even assuming compliance with Article 26 (Art. 26) of the Convention, finds no indication that any interference with the applicant's right to respect for his private life in this respect, could not be regarded as justified under Article 8 para. 2 (Art. 8-2). Consequently, there is no appearance of a violation of the right invoked by the applicant. Accordingly, this complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)