CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 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. 21835/93                       by Manfred and Herlinde HAUSER                       and Johannes WERNER                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 2 September 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                  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 16 March 1993 by Mr. Manfred Hauser, Mrs. Herlinde Hauser and Mr. Johannes Werner against Austria and registered on 12 May 1993 under file No. 21835/93;         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 applicants are Austrian citizen, living in Vienna and born in 1957, 1959 and 1963, respectively. Before the Commission, they are represented by Mr. T. Prader, a lawyer practising in Vienna.         The facts of the case, as they have been submitted by the applicants, may be summarised as follows.   A.     Particular circumstances of the case         On 15 May 1991 the first and the second applicant were arrested on the suspicion of having fraudulently used the credit card of a third person for purchases in several shops in Vienna and were taken in detention on remand. On 3 July 1991 the third applicant, suspected of having forged the signature on the credit card and on the purchase receipts, was also taken in detention on remand.         On 8 July 1991 the first and the second applicant, and on 19 July 1991 the third applicant, were released from detention.         On 24 February 1992, by decision of the Investigating Judge of the Vienna Regional Court (Landesgericht), criminal proceedings were discontinued against all applicants, as a graphological expert found that the third applicant was not likely to be the author of the signatures on the purchase receipts and as the Public Prosecutor's witnesses did not have sufficient recollection.         On 3 June 1992 the Judges' Chamber (Ratskammer) of the Vienna Regional Court dismissed the applicants' request for compensation for the pecuniary damage sustained on account of their having been kept in detention on remand, based on S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz). It found that there still remained a suspicion against all three applicants.         On 29 October 1992 the Vienna Court of Appeal (Oberlandes- gericht), in private session, after having heard the Senior Public Prosecutor's Office (Oberstaatsanwaltschaft), dismissed the applicants' appeal (Beschwerde). It considered that the criminal proceedings had been discontinued as no sufficient evidence could be produced, but that, nevertheless, a suspicion persisted. Such a discontinuation did not suffice to give rise to a claim for compensation under the relevant provision of the Compensation Act, as, according to the constant jurisprudence of the Austrian courts, it had to be established that the person concerned was not punishable. However, in the present case, the applicants had not refuted the suspicion existing against them, nor was this suspicion otherwise dissipated.         The Court of Appeal further considered that the applicants' requests for the taking of further evidence and for the questioning of the witnesses on which the Public Prosecutor had based his information could not have helped to elucidate the facts. The Court noted that the criminal proceedings had been discontinued due to the insufficient recollection of these witnesses. Their statements could, therefore, not have proven the applicants' innocence.         The decision was served on 3 November 1992.         It appears that criminal proceedings against the third applicant have been resumed.   B.     Relevant domestic law         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 (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. 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.   If criminal proceedings are discontinued by decision of the investigating judge, the judges' chamber decides on a request for compensation.   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.         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). The final decision in the proceedings under the Compensation Act is binding on the civil courts, which task is to assess the damage the person concerned has sustained on account of his having been kept in detention.         Generally, no public hearings are conducted before the Judges' Chambers and before the Courts of Appeal (in proceedings upon appeals (Beschwerden) against decisions of the Judges' Chambers). Both decide in private session, after having heard the Public Prosecutor's Office or the Senior Public Prosecutor's Office, respectively (S. 32 para. 1 and S. 35 para. 2 of the Code of Criminal Procedure).   COMPLAINTS   1.     The applicants complain under Article 6 paras. 1 and 3 (d) of the Convention that they were refused compensation for their detention on remand and also about the proceedings concerned. They complain in particular that they did not have a public hearing before the Judges' Chamber and the Court of Appeal and that the Courts' decisions were not pronounced in public. Moreover, they complain that the Court of Appeal decided after having heard an official of the Senior Public Prosecutor's Office. They also complain that their requests for the taking of evidence had not been complied with.   2.     Under Article 6 para. 2 of the Convention the applicants complain about a breach of the presumption of innocence, as the Vienna Court of Appeal considered that they had to prove their innocence in order to be awarded compensation, although the criminal proceedings against them had already been discontinued.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 16 March 1993 and registered on 12 May 1993.         By letter of 7 March 1994, the applicants' lawyer informed the Commission that the first and the second applicant wished to withdraw their application.   THE LAW   1.     As regards the first and the second applicant, the Commission notes that, by letter of 7 March 1994, their lawyer submitted that they did not wish to pursue their petition. Consequently, the Commission only remains confronted with the complaints brought by the third applicant.   2.     The third applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he did not have a public hearing in the compensation proceedings before the Judges' Chamber of the Vienna Regional Court and the Vienna Court of Appeal. He also complains that, in the compensation proceedings, the Courts' decisions were not pronounced publicly as required by this provision. Moreover, he claims that the principle of equality of arms was infringed in the proceedings before the Court of Appeal.         The Commission considers it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of these complaints to the respondent Government.   3.     The third applicant further complains under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention that the Vienna Court of Appeal refused to hear the proposed witnesses and to take the proposed evidence. The Commission has examined this complaint under Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission, even assuming that Article 6 (Art. 6) applies to the proceedings in question, recalls that this provision does not give an absolute right to the examination of every witness proposed by the defence (Eur. Court H.R., Engel and others judgment of 6 June 1976, Series A no. 22, p. 38, para. 91; Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89).         In the present case, the applicant proposed to take evidence and to examine witnesses on their statements upon which the Public Prosecutor's Office had originally based its information. The Court of Appeal, considering that the insufficient recollection of these witnesses had inter alia led to the discontinuation of the proceedings, dismissed these motions, on the ground that they could not provide any clarification.         In these circumstances, the Commission finds no indication that the Vienna Court of Appeal, by rejecting the applicant's requests to take evidence, failed to consider relevant evidence or acted in an arbitrary and unfair manner.         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.   4.     The third applicant further complains under Article 6 para. 2 (Art. 6-2) of the Convention that 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 24 February 1992 the criminal proceedings against the third applicant were discontinued and that the applicant subsequently filed his requests for compensation regarding his detention on remand. 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, 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.         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.         For these reasons, the Commission unanimously         DECIDES TO ADJOURN its examination of the application as regards       the third applicant's complaints relating to the lack of a public       hearing and of a public pronouncement of the decisions and about       a breach of the principle of equality of arms in the proceedings       before the Judges' Chamber of the Vienna Regional Court and the       Vienna Court of Appeal;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber       President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)