CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 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. 20602/92                       by Zoltan SZÜCS                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 29 June 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 24 August 1992 by Zoltan Szücs against Austria and registered on 9 September 1992 under file No. 20602/92;         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.         The applicant is a Hungarian national, born in 1971 and residing in Halaszetelek (Hungary). Before the Commission he is represented by Mr. T. Schreiner, a lawyer practising in Eisenstadt (Austria).   A.     The particular circumstances of the case         On 8 October 1990 the investigating judge of the Wiener Neustadt Regional Court (Kreisgericht) opened preliminary investigations and issued a warrant of arrest (Haftbefehl) against the applicant and 3 others for suspicion of aggravated professional fraud committed between 9 and 31 May 1990 in Austria.   The investigating judge found that there existed a danger of absconding as the suspects had no fixed abode in Austria and had left Austria after having committed the offences they were suspected of.   He further found that there existed a danger of collusion as it was unclear how the suspects had come into possession of the credit card of Mrs. S.K. which was used in committing the offences.         On 25 February 1991 the applicant was arrested upon his entry into Austria at the Austrian-Hungarian border.         On 26 February 1991 an investigating judge at the Eisenstadt Regional Court questioned the applicant, who stated that he had only accompanied the other suspects on a trip to Italy as their driver and never had been present when they went shopping.   The investigating judge ordered the applicant's detention on remand. Referring to the warrant of arrest of 8 October 1990, he found that there was a reasonable suspicion that the applicant together with other suspects had committed aggravated fraud by buying goods for a value of some 200.000 AS in different shops in Austria with a stolen credit card (issued to Mrs. S.K.).   According to information received from Interpol, the applicant together with three other suspects had been arrested on 31 May 1990 in Italy on which occasion they had been found in the possession of the stolen credit card.   After an interrogation by the Italian police the applicant had been expelled from Italy.   The investigating judge also considered that there was a danger of collusion, a danger of the applicant's absconding and a danger of repetition.         On 4 April 1991 the applicant was heard again by the investigating judge.         On 12 April 1991 the public prosecutor requested that the expert opinion of a graphologist be taken for ascertaining whether the applicant had signed the credit card purchase receipts.         On 15 April 1991 the applicant requested that an ex officio defence counsel be appointed and waived his right to a hearing with a view to the examination of the lawfulness of his detention on remand (Haftprüfungsverhandlung).   On the same day the investigating judge ordered that a defence counsel be appointed for the applicant, that a graphologist prepare an expert report within 10 days and had samples of the applicant's handwriting taken.         On 6 May 1991 the graphological expert stated that the signatures on the purchase receipts were unlikely to have been made by the applicant.   On the same day, upon a request by the public prosecutor, the investigating judge decided to discontinue the criminal proceedings and ordered the applicant's release from detention on remand.         On the same day the applicant requested compensation for his detention.         On 8 May 1991 the Judges' Chamber (Ratskammer) at the Wiener Neustadt Regional Court dismissed the applicant's claim for compensation under Section 2 para. 1 (b) of the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz).   The Judges' Chamber found that at the time of the applicant's arrest a serious suspicion against him had existed.   Criminal proceedings had been discontinued against him because clear evidence could not be produced. Nevertheless a serious suspicion against him continued to exist (Im gegenständlichen Fall wurde das Verfahren gegen Zoltan Szücs gemäß Paragraph 109 Abs. 1 StPO lediglich eingestellt, weil ein eindeutiger Nachweis für sein strafbares Verhalten, trotz Weiterbestehen gewichtiger Verdachtsgründe, nicht zu erbringen ist).         On 27 May 1991 the applicant appealed against this decision to the Vienna Court of Appeal (Oberlandesgericht).   He submitted, inter alia, that the Judges' Chamber's finding according to which serious suspicion against him continued to exist violated the principle of presumption of innocence.   He also submitted that the length of his detention had been unreasonable and requested compensation for unlawful detention under Section 2 para. 1 (a) of the Criminal Proceedings Compensation Act in this respect.         On 9 January 1992 the Court of Appeal dismissed the applicant's appeal.   It found that, as the other suspects could not be traced in Austria, it had been necessary to establish whether the signatures on the purchase receipts with the credit card had been made by the applicant, who could have disguised himself as a woman on the occasion of the purchases.    The graphological expert had only indicated that the signatures were unlikely to have been made by the applicant. Furthermore, these was still the suspicion that he had aided and abetted the other suspects.   Therefore, the suspicion against the applicant had not been dissipated.         On the same day, the Court of Appeal, in a separate decision, dismissed the applicant's claim for compensation for unlawful detention under Section 2 para. 1 (a) of the Criminal Proceedings Compensation Act.   It found that a serious suspicion against the applicant of having committed the offences in question subsisted at the time of his arrest. Furthermore, there had existed the danger of the applicant's absconding as he had been travelling around and had no fixed residence, and the danger of collusion because there were several suspects and there had been the risk that they would agree on their statements.   The Court of Appeal also noted that on 2 November 1990 the Eisenstadt Regional Court had convicted the applicant of handling stolen goods (Hehlerei). Moreover, the continuation of the detention on remand until the graphological expert submitted his report had not rendered the length of the applicant's detention unreasonable.   The length of the detention on remand had further not been excessive with regard to the sanctions applicable to the offences of which the applicant was suspected, nor had the applicant himself in the meantime produced any exonerating evidence which would have made the applicant's release obligatory. Lastly, the applicant's detention could not have been substituted by a more lenient measure.   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 for pecuniary loss resulting from detention on remand. The conditions to be met are laid down in SS. 2 and 3.   S. 2 para. 1 (a) relates to the case of unlawful detention on remand.   S. 2 para. 1 (b) specifies as conditions that the accused has been acquitted, or that the proceedings against him have been otherwise discontinued and that the suspicion that he has committed the offence in question no longer subsists, or that there is a bar to prosecution which already existed at the time of his detention.         S. 6 para. 1 stipulates that when a court orders or prolongs detention on remand, the superior court is competent to decide whether the conditions of S. 2 para. 1 (a) and S. 3 are met.   S. 6 para. 2 stipulates that where a person is acquitted or criminal proceedings against him are discontinued by a court, the same court is competent to decide whether the conditions of S. 2 para. 1 (b) and S. 3 are met. In these proceedings the detained person has to be heard and, if necessary, evidence has to be taken.   The detained and the Prosecutor's Office have a right to appeal to the superior court which can take, if necessary, further evidence. The final decision in these proceedings is binding on the civil courts.         If the said courts find that the conditions under S. 2 and 3 are met, the person concerned has to file a request with the Department of Finance (Finanzprokuratur) for acknowledgment of his claim. If there is no decision upon his request within six months or if his claim is partly or fully refused, the person concerned has to institute civil court proceedings against the Republic of Austria (SS. 7 and 8).   COMPLAINTS   1.     The applicant complains under Article 5 para. 3 of the Convention about the length of his detention on remand.   He submits that the only evidence taken during his detention was the expert opinion of a graphologist.   This expert opinion was of no relevance, as he was suspected of having acted as driver for the transport of the loot.   2.     He complains under Article 5 para. 5 of the Convention about the refusal of compensation for his detention on remand as his detention was in breach of Article 5 para. 3 of the Convention.   3.     He complains under Article 6 para. 2 of the Convention that the Austrian courts, in particular the Vienna Court of Appeal, disregarded the presumption of innocence when refusing his claim for compensation in that, despite the discontinuation of proceedings, the courts found that a suspicion against him continued to exist.   4.     He further complains under Article 6 para. 3 (d) of the Convention that compensation proceedings in general did not comply with this provision as persons claiming a compensation have no possibility to question witnesses.   5.     Lastly, the applicant complains under Article 6 para. 1 of the Convention that in the respective compensation proceedings, the courts' decisions were not pronounced publicly as required by this provision.     THE LAW   1.     The applicant complains under Article 5 para. 3 (Art. 5-3) of the Convention about the length of his detention on remand.         With reference to Article 26 (Art. 26) of the Convention, the Commission notes that the applicant during this period did not file any request for release from detention on remand.         The Commission, even assuming compliance with the requirement of exhaustion of domestic remedies under Article 26 (Art. 26) of the Convention, notes that the applicant was arrested on 26 February 1991 and released from detention on remand on 6 May 1991.   His detention thus lasted for two months and one week.         The applicant submits that he was only suspected of having aided and abetted other suspects in acting as driver for the transport of the loot of a criminal offence and that therefore the preparation of an opinion of a graphologist was an unnecessary step in the investigation. The Commission observes, however, that according to the warrant of arrest of 8 October 1990 and the decision to take the applicant into detention on remand of 26 February 1991, it does not appear that the suspicion against the applicant was limited to the issue whether he had acted as driver for other persons, but that he was suspect of having committed the offence in the company of the co-suspect.         The Commission, having regard to the relevant criteria established in the Convention organs' case law, finds no indication that the investigations were not handled with the necessary diligence in this period (see Eur. Court H.R., Letellier judgment of 26 June 1991, Series A no. 207, p. 18, para. 35; W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p.15, para. 30).   In these circumstances, the Commission considers that the period of the applicant's detention on remand did not exceed a reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.         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 5 para. 5 (Art. 5-5) of the Convention about the refusal of compensation for his detention on remand as his detention was in breach of Article 5 para. 3 (Art. 5-3) of the Convention.         The Commission recalls that Article 5 para. 5 (Art. 5-5) of the Convention is only applicable if the Convention organs themselves or a national authority have established that the detention of a person constituted a violation of his rights under Article 5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) (No. 7950/77, Dec. 4.3.80, D.R. 19 p. 213 at p. 215; No. 10371/83, Dec. 6.3.85, D.R. 42 p. 128).         The Commission notes that two distinct proceedings on the applicant's claims for compensation for his detention on remand took place.   The first set of proceedings concerned the applicant's claim for compensation on grounds that the proceedings had been discontinued (S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act).   This claim was dismissed on 8 May 1991 by the Judges' Chamber of the Wiener Neustadt Regional Court and on 9 January 1992 the Vienna Court of Appeal confirmed this decision.   Only the second set of proceedings concerned his claim for compensation   on the ground that his detention was allegedly unlawful (S. 2 para. 1 (a) of the Criminal Proceedings Compensation Act).   This claim was dismissed by the Vienna Court of Appeal on 9 January 1992.   The applicant failed to appeal to the Supreme Court.         However, even assuming compliance with the requirement of exhaustion of domestic remedies under Article 26 (Art. 26) of the Convention, the Commission, having regard to the domestic courts' decisions, finds no indication of a violation of the applicant's rights under paragraph 1 to 4 of Article 5 (Art. 5-1, 5-2, 5-3, 5-4) of the Convention.   Therefore, the Commission finds that the question of compensation under Article 5 para. 5 (Art. 5-5) of the Convention does not arise, as neither the domestic courts nor the Commission itself have established a violation of Article 5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4)as regards the applicant's detention on remand.         It follows that also this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     He complains under Article 6 para. 2 (Art. 6-2) of the Convention that the Austrian courts, in particular the Vienna Court of Appeal, disregarded the presumption of innocence when refusing his claim for compensation in that, despite the discontinuation of proceedings, they found that a suspicion against him continued to exist.         The Commission, notes that on 6 May 1991 the criminal proceedings against the applicant were discontinued and that the applicant filed his requests for compensation regarding his detention on remand on 6 and 27 May 1991. The decisions of the Judges' Chamber of the Vienna Regional Court and the Vienna Court of Appeal 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, Series A no. 266, p. 13-15, paras. 24-30).         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.   4.     The applicant further complains under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention that compensation proceedings in general did not comply with this provision as persons claiming a compensation have no possibility to question witnesses.         The Commission, assuming that Article 6 (Art. 6) applies to the proceedings in question, recalls that it is not the function of the Convention organs to rule in abstracto on the compatibility with the Convention of certain legal rules (see Eur. Court H.R., Marckx judgment of 13 June 1979, Series A no 31, p.13, para. 27).         In the present case, the applicant only generally complains on a feature of the compensation proceedings under the Criminal Proceedings Compensation Act without specifying which witnesses the Austrian Courts failed to hear and that he requested the hearing of any witness.   There is no indication of unfairness in the proceedings concerned.         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.   5.     Lastly, the applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that in the respective compensation proceedings, the courts' decisions were not pronounced publicly as required by this provision.         The Commission considers it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government.         For these reasons, the Commission unanimously         DECIDES TO ADJOURN its examination of the complaint as regards       the lack of a hearing before the Supreme Court in the proceedings       on the applicant's application for compensation;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)