CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.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. 22034/93                       by A.M., A.N.and T.F.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              MM.    C.L. ROZAKIS, President                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 28 May 1993 by A.M., A.N. and T.F. against Austria and registered on 10 June 1993 under file No. 22034/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 13 January 1995 and the observations in reply submitted by the applicants on 31 March 1995, after an extension of the time-limit;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case as submitted by the parties may be summarised as follows.        The applicants are Iranian nationals. They were born in 1965, 1962, and 1957 respectively. They are all residing in Vienna. In the proceedings before the Commission, they are represented by Mr. Vana, a lawyer practising in Vienna.   A.    The particular circumstances of the case        On 14 January 1991 the Federal Ministry for the Interior (Bundes- ministerium für Inneres) requested the Investigating Judge at the Vienna Regional Criminal Court (Landesgericht), for permission to intercept the first applicant's telephone line. The Ministry submitted that, according to a "reliable source", the applicant, together with other persons, was suspected of having, in the night of 12 to 13 January 1991, planned a conspiracy (Bandenbildung) to commit terrorist attacks in Austria. The Investigating Judge thereupon ordered that the first applicant's telephone be tapped for a period of two weeks.        On 18 January 1991 the Investigating Judge ordered the search of the applicants' respective premises (Hausdurchsuchung) and issued warrants of arrest (Haftbefehle) against them for suspicion of conspiracy to commit terrorist attacks. In the case of all three applicants, he found that there was a danger of absconding, as they were foreigners having no links with Austria, a danger of collusion, as the investigations had not yet been concluded and a danger of committal of the offenses at issue.        On 19 January 1991 the applicants were arrested and subsequently questioned by officers of the Federal Ministry for the Interior. They all confirmed that a meeting had taken place in the night of 12 to 13 January, but denied that they had planned any attacks.        On 22 January 1991 the Investigating Judge at the Vienna Regional Criminal Court, having heard the applicants as suspects, ordered their detention on remand. The Investigating Judge noted the applicants' statements, according to which they had refugee status in Austria, and also confirming the statements they had made before the officers of the Ministry for the Interior. Nevertheless, the Investigating Judge found that there were serious grounds for suspecting the applicants of having participated in a conspiracy to commit terrorist attacks including murder, assault and aggravated damage to property. Moreover, there was, in the case of all three applicants, a danger of collusion as the investigations had to be continued as well as a danger that the applicants might commit the offenses in question. In the case of the first and the third applicant there was also a danger of absconding as they were foreigners and had no particular links with Austria.        On 24 January 1991 Mr. Vana, who assisted the applicants in these and in the following proceedings, filed a request for their release from detention on remand. He submitted in particular that there were no serious grounds for suspecting the applicants of conspiracy. The applicants were supporters of the People's Modjahedin, which was the reason why they had to flee from Iran and had been granted refugee status in Austria, but had nothing to do with terrorist attacks.        On 30 January 1991 the Investigating Judge, on the Public Prosecutor's request of the same day, released the applicants from detention on remand.        On 9 January 1992 the Investigating Judge, on the Public Prosecutor's request of 13 December 1991, decided to discontinue the proceedings for lack of sufficient evidence. The same day the Public Prosecutor requested that the applicants should not be granted compensation under the Criminal Proceedings Compensation Act (Straf- rechtliches Entschädigungsgesetz), as the suspicion against them had not been dissipated.        On 29 June 1992 the applicants requested compensation under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act. They submitted in particular that the suspicion against them had been unfounded and that it had not been proved that they had committed the offence of which they were suspected.         On 12 August 1992 the Judges' Chamber (Ratskammer) at the Vienna Regional Criminal Court dismissed the applicants' request.        The Judges' Chamber noted that the Ministry's Special Branch (Staatspolizei) had received information from a reliable police informer that, in the night from 12 to 13 January 1991, there was a meeting of fourteen members of the People's Modjahedin, including the applicants, in the first applicant's apartment in Vienna. S., a leader, who had come from Germany, had allegedly talked about terrorist activities in Austria. Subsequently, he had asked each member of the group to either go back to the Middle East to fight against the United States on the side of Iraq or to start fighting against Iranian and American institutions in Austria.        The Judges' Chamber further found that the telephone tapping, which had subsequently been ordered, had confirmed the suspicion against the applicants. Moreover, the applicants had, in the course of the preliminary investigations, not denied that they had participated in the meeting. The first applicant had also stated that he was the People's Modjahedin's contact person in Austria. They had also confirmed that their leader, S., had tried to oblige them to fight, but denied that they had had the intention to participate in any attacks. The Judges' Chamber considered that although the proceedings had been discontinued for lack of evidence, however, doubts had remained. Thus, the suspicion of conspiracy had not been dissipated. Therefore, the claim for compensation under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act had to be dismissed.        On 1 September 1992 the applicants appealed against this decision relating to their claim under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act. They argued in particular that the decision to take them into detention on remand relied mainly on the submissions of the informer referred to in the Ministry's request of 14 January 1991. As he had remained anonymous, they had not had the opportunity to confront his allegations. However, the submissions of the police informer did not contain serious grounds for suspecting them of having planned a conspiracy to commit terrorist attacks. The results of the telephone tapping, which had been made available to their lawyer, had not confirmed any suspicion against them either. Moreover, they had always stated that they were innocent.        Further, the applicants requested the Vienna Court of Appeal to grant them compensation under S. 2 para. 1 (a) of the same Act, alleging that their detention on remand had been unlawful, as there had been no serious reasons to suspect them of conspiracy.        On 23 November 1992 the Vienna Court of Appeal (Oberlandes- gericht) dismissed the applicants' appeal against the decision of 12 August 1992 regarding their claim under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act. It repeated the reasons already given by the Judges' Chamber. Moreover, the Court of Appeal, referring to statements made by the applicants, found that in the present case it had not been possible to exclude that the applicants had been the victims of defamation. While the proceedings had been discontinued for lack of sufficient proof, doubts had remained. However, compensation under S. 2 para. 1 (b) was only due if it was established that the suspect was not liable to prosecution or that there was a bar to prosecution as regards the offence he had been suspected of. This decision was served on 30 November 1992.        On 16 December 1992, the Vienna Court of Appeal, sitting as a court of first instance on this matter, dismissed the applicants' request under S. 2 para. 1 (a). The applicants did not further pursue these proceedings.   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 committing offences.   2.    Compensation regarding pecuniary damages resulting from detention      on remand        The Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz), according to S. 1, provides for financial 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) relates to the case of unlawful detention on remand.   S. 2 para. 1 (b) concerns the cases 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 SS. 2 and 3 are met, the injured person has to file a request with the Department of Finance (Finanzprokuratur) for acknowledgement 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 applicants complain under Article 6 paras. 1 and 3 (d) of the Convention that the proceedings relating to their compensation claim under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act regarding their detention on remand were unfair. They submit in particular that the suspicion against them was raised by an anonymous witness, i.e. a police informer, whom they could not examine and whose credibility they could therefore not put into doubt. Moreover, the Courts were not in a position to critically assess the police informer's submissions.   2.    The applicants further complain under Article 6 para. 2 that the Austrian Courts, applying S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act, violated the presumption of innocence as they requested that the suspicion against them be dissipated.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 28 May 1993 and registered on 10 June 1993.        On 12 October 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 13 January 1995. The applicants replied on 31 March 1995, after an extension of the time-limit.        On 28 February 1995 the Commission granted the applicants legal aid.   THE LAW   1.    The applicants complain under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that the proceedings relating to their compensation claim under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act regarding their detention on remand were unfair.        Article 6, (Art. 6) so far as relevant, reads as follows:        "1.    In the determination of his civil rights ..., everyone is      entitled to a fair ... hearing ... .        3.     Everyone charged with a criminal offence has the following      minimum rights:        d.     to examine or to have examined witnesses against him and to      obtain the attendance and examination of witnesses on his behalf      under the same conditions as witnesses against him;"   a.    The Government submit that the applicants failed to exhaust domestic remedies as regards their request under S. 2 para. 1 (a) of the Criminal Proceedings Compensation Act.        The Commission notes that the applicants' complaint only relates to their request under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act. In this respect, it is not disputed that the applicants exhausted domestic remedies.   b.    As regards the applicability of Article 6 (Art. 6), the Government submit that the contested proceedings concern a public-law claim, which is not comparable to claims under the law of damages, as it is neither dependent on the misconduct of a public servant nor on any other violation of the law (B. v. Austria No. 9661/82, Dec. 14.7.83, D.R. 34 p. 127). Further, the present case has to be distinguished from the case of A.M. and J.v.Z. v. the Netherlands, Comm. Report 4.7.94. Under Austrian law, the decisions taken by the criminal courts are only of a preparatory nature. Once they find that the compensation claim is well-founded in principle, it has to be asserted before the Federal Department of Finance and eventually before the civil courts. Thus, the contested decisions were not directly decisive for the applicants' civil rights.        The applicants refer in particular to S. 1 of the Criminal Proceedings Compensation Act, which states that this Act provides for financial compensation regarding pecuniary damages resulting from detention on remand. Therefore, the right at issue is pecuniary in nature and, thus, constitutes a civil right within the meaning of Article 6. Moreover, they argue that the contested proceedings were directly decisive for their civil rights, as the proceedings before the criminal courts are an indispensable requirement for asserting the compensation claim.        The Commission recalls that Article 6 para. 1 (Art. 6-1) extends to disputes (contestations) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and finally, the result of the proceedings must be directly decisive for the right in question (see Eur. Court H.R., Zander judgment of 25 November 1993, Series A no. 279-B, p. 38, para. 22). As regards the question whether a right is of a "civil" character, the Commission further recalls that it is sufficient that the action is pecuniary in nature and is founded on an alleged infringement of rights which are likewise pecuniary rights (Eur. Court H.R., Éditions Périscope judgment of 26 March 1992, Series A no. 234-B, p. 66, para. 40).        In the present case, the applicants were under Austrian law entitled to compensation for detention on remand under the condition that the requirements laid down in Section 2 and 3 of the Criminal Proceedings Compensation Act were met. Unlike in the case of Masson and Van Zon, the award of compensation did not depend on the discretion of the competent court or that reasons in equity exist therefor (Eur. Court H.R., Masson and Van Zon judgment of 28 September 1995, para. 51, to be published in Series A no. 327). The Commission therefore finds that the applicant had a right to compensation recognised under domestic law.        Furthermore, there was a dispute over this right. The applicants claimed that they were entitled to compensation under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act, while the competent criminal courts found that the requirements laid down in the said Act were not met. According to S. 6 of the Criminal Proceedings Compensation Act, the decision taken by the criminal courts is binding. Irrespective of the necessity of further procedural steps, their outcome was, therefore, directly decisive for the applicants' right to compensation. Further, the compensation claim asserted by the applicants, in accordance with S. 1 of the Criminal Proceedings Compensation Act, concerned financial compensation for pecuniary damages resulting from detention on remand. Therefore, the right at issue was a "civil right" within the meaning of Article 6 (Art. 6) of the Convention.   c.    As regards the compliance with Article 6 (Art. 6), the Government submit that the applicants, when complaining that the anonymous police informer was not heard as a witness, can only rely on paragraph 1 but not on paragraph 3 (d) of this Article (Art. 6-1, 6-3-d), as the latter provision only applies to criminal proceedings. Moreover, the right to have witnesses summoned or heard is not an absolute one. The applicants failed to show why the examination of the police informer could have led to a complete dissipation of the suspicion against them. Finally, the Government argue that the applicants did not explicitly request an examination of the police informer and have thus waived their right to hear him.        The applicants rely on Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d). They submit that they were denied compensation for their detention on remand on the ground that the suspicion against them had not been dissipated. They argue that the proceedings were unfair, as they could not examine the anonymous police informer and, thus, could not show possible contradictions in his submissions or otherwise test his credibility. They concede that it may be permissible in criminal proceedings not to hear an anonymous police informer. However, in civil proceedings relating to compensation for detention on remand, it should be for the Government to prove that the suspicion was well- founded, in particular in a case like the present one, in which the State is in possession of the relevant evidence.        The Commission recalls that it is not called upon to substitute its own assessment of the facts for that of the national courts. The Convention organs' task is to ascertain whether the proceedings in their entirety, including the way in which evidence was permitted, were "fair" within the meaning of Article 6 para. 1 (Art. 6-1) (Eur. Court H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263, p. 21, para. 66; Dombo Beheer B.V. judgment of 27 October 1993, Series A no. 274, p. 19, para. 32).        In the present case the Commission has to examine the fairness of civil proceedings, namely compensation proceedings relating to the applicants' detention on remand.        The Commission recalls that the requirements inherent in the concept of "fair hearing" are not necessarily the same in cases concerning the determination of civil rights and obligations, as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 (Art 6-1, 6-3)applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases, than they have when dealing with criminal cases. Nevertheless, the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies in principle to such cases as well as to criminal cases. "Equality of arms" implies that each party must be afforded a reasonable opportunity to present his case - including the evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. Thereby, it is for the national authorities to ensure in each individual case that the requirements of a "fair hearing" are met (Eur. Court H.R., Dombo Beheer B.V. judgment, loc. cit., paras. 32-33).        The question at issue in the contested compensation proceedings was whether or not the suspicion against the applicants had been dissipated. The suspicion of having planned a conspiracy to commit terrorist attacks had been raised by a police informer, whose submissions were contained in the report by the Federal Ministry for the Interior of 14 January 1991. The Public Prosecutor, when requesting that the criminal proceedings against the applicants be discontinued, found that this suspicion had not been dissipated and that the applicants, therefore, should not be granted compensation. The applicants in their request for compensation considered that the suspicion had been unfounded.        The Judges' Chamber at the Vienna Regional Criminal Court, in its decision of 12 August 1992, noted that the suspicion against he applicants had been raised by a police informer. It also had regard to the results of the telephone tapping and the applicants' own statements as suspects during the preliminary investigations in which they admitted that they had participated in a meeting of Peoples' Modjahedin, but denied the planning of terrorist attacks. In conclusion, the Judges' Chamber found that the suspicion against the applicants had not been dissipated. In their appeal, the applicants argued in particular that the suspicion against them could neither be inferred from the police informer's submissions, nor from the results of the telephone tapping. Moreover, they had always claimed their innocence. They also complained that they did not have the opportunity to confront the allegations raised by the police informer as he had remained anonymous. However, the Vienna Court of Appeal did not follow the applicants' arguments and confirmed the decision of the Judges' Chamber on 23 November 1992.        The Commission finds that the applicants, represented by counsel, had the opportunity to comment on the view of the Public Prosecutor, who appears as the representative of the State as a defendant in the compensation proceedings. Both parties could refer to evidence produced in the preliminary investigations in support of their respective views. In these circumstances, the Commission finds that the applicants were not substantially restricted in presenting their arguments as compared to the Public Prosecutor.        Moreover, the Commission observes that the applicants did not request that the police informer be examined as a witness either before Judges' Chamber at the Vienna Regional Court or before the Vienna Court of Appeal.        Having regard to all material before it, the Commission finds no sufficient grounds to form the view that there were any special circumstances which could prompt the conclusion that the failure by the Austrian courts to hear the police informer was incompatible with the requirements of a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) 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 applicants complain under Article 6 para. 2 (Art. 6-2) that the Austrian Courts' decision to refuse them compensation for their detention on remand violated the presumption of innocence.        Article 6 para. 2 (Art. 6-2) reads as follows:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."        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 (see Eur. Court H.R., Sekanina judgment of 25 August 1993, Series A no. 266-A, pp. 13-16, paras. 24-30).        In the present case, the Austrian Courts dismissed the applicants' compensation claim on the ground that, although the proceedings against them had been discontinued, the suspicion had not been dissipated. The Commission finds that the applicants failed to show that the reasoning of the Austrian Courts amount to any finding of guilt.        It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)