CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 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. 20602/92                       by Zoltan SZÜCS                       against Austria        The European Commission of Human Rights sitting in private on 23 October 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, 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 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 regard to the Commission's decision of 29 June 1994 to declare the application partly inadmissible and to communicate the remainder of the application to the respondent Government for observations on its admissibility and merits;        Having regard to the observations submitted by the respondent Government on 11 October 1994 and the observations in reply submitted by the applicant on 9 December 1994;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case, as they have been submitted by the parties, 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 three 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 had never 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 of 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 and had then been found in 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 absconding and a danger of commission of new offences.        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 S. 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.        On 17 May 1991 the applicant again requested that compensation be granted pursuant to S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act.        On 27 May 1991 the applicant appealed against the decision of 8 May 1991 to the Vienna Court of Appeal (Oberlandesgericht).   He submitted, inter alia, that the Judges' Chamber's finding according to which a 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 S. 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, there 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 S. 2 para. 1 (a) of the Criminal Proceedings Compensation Act. The applicant did not appeal to the Supreme Court (Oberster Gerichtshof) against this decision.   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 for pecuniary damage 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.   According to S. 6 para. 4 a decision on a compensation claim under S. 2 para. 1 has to be served on the person concerned but not to be made public.   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 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).   3.    Inspection of files under S. 82 of the Code of Criminal      Procedure        According to S. 82 of the Code of Criminal Procedure it is left to the discretion of the courts, in other cases than those mentioned specifically in the Code of Criminal Procedure, to grant leave to third parties for inspection of a file if they show that the inspection is necessary for raising a claim for compensation or for other reasons.   COMPLAINTS        The applicant's remaining complaint under Article 6 para. 1 of the Convention concerns the fact that in the respective compensation proceedings, the Court of Appeal's decisions were not pronounced publicly as required by this provision.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 24 August 1992 and registered on 9 September 1992.        On 29 June 1994 the Commission decided to communicate the applicant's complaint under Article 6 para. 1 of the Convention as regards the lack of a public pronouncement of the Court of Appeal's decision and declared inadmissible the remainder of the application.        The Government's written observations were submitted on 11 October 1994.   The applicant replied on 9 December 1994.   THE LAW   1.    The applicant complains that in the respective compensation proceedings, the Court of Appeal's decision was not pronounced publicly as required by Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, reads as follows:        "(1) In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law. Judgment shall be pronounced publicly ..."   2.    The Government submit that with regard to the claim for compensation under S. 2 para. 1 (a) of the Criminal Proceedings Compensation Act the applicant failed to exhaust domestic remedies within the meaning of Article 26 (Art. 26) of the Convention as he did not appeal against the decision of the Court of Appeal of 9 January 1992 to the Supreme Court.   As regards the applicant's claim under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act the applicant also did not exhaust domestic remedies.   Although he appealed against the Judges' Chamber's decision of 8 May 1991, he neither requested an oral hearing nor submitted that the lack of an oral hearing would violate Article 6 para. 1 (Art. 6-1) of the Convention.          The applicant acknowledges that with regard to his claim under S. 2 para. 1 (a) of the Criminal Proceedings Compensation Act he failed to appeal to the Supreme Court.   As regards the claim under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act he submits that a request for holding a public hearing was not possible since the relevant law does not provide for a hearing.        The Commission finds that the question whether the applicant could and should have asked for an oral hearing and public pronouncement of the courts' decisions in the compensation proceedings and whether he could have raised this issue at all in an appeal to the Supreme Court are matters related to the merits of the complaint and cannot be determined at this stage of the proceedings.        The Commission therefore considers that the complaint cannot be rejected under Article 27 para. 3 (Art. 27-3) of the Convention for non-exhaustion of domestic remedies.   3.    As regards the applicability of Article 6 para. 1 (Art. 6-1), the Government submit that the proceedings under the Criminal Proceedings Compensation Act concern a public law claim. They point out that the Commission, in the case of Bach v. Austria (No. 9661/82, Dec. 14.7.83, D.R. 34 p. 127) did not apply Article 6 (Art. 6) to proceedings under the Criminal Proceedings Compensation Act, finding that the claim is not comparable to claims under the Law on Damages, as is does not require a punishable conduct by a civil servant or a violation of the law at all. Moreover, the proceedings under the Criminal Proceedings Compensation Act, as far as they are conducted by the criminal courts, are only of a preparatory nature. Once the criminal courts have decided on the validity of a compensation claim, compensation has to be requested from the Federal Government, represented by the Department of Finance. If the Department does not decide within six months or if it refuses the claim, action must be brought before the civil courts. Therefore, the outcome of the contested proceedings was not directly decisive for the applicant's civil rights. The applicant contests this view.        The Government further consider that the applicant's complaint regarding the lack of a public pronouncement of the courts' decisions in the compensation proceedings is covered by the Austrian reservation to Article 6 (Art. 6) of the Convention which provides as follows:        "The provision of Article 6 (Art. 6) of the Convention      shall be so applied that there shall be no prejudice to the      principles governing public court hearings laid down in      Article 90 of the 1929 version of the Federal      Constitutional Law."        The Government submit that the Austrian reservation is in accordance with Article 64 (Art. 64) of the Convention.   The relevant provision excluding public pronouncement of the court's decision on the claim for compensation was in force at the time the reservation was made.   Although the Criminal Proceedings Compensation Act dates from 1969, also the previous Act of 19 August 1918 on Compensation for Detention Pending Investigation provided in S. 3 para. 1 that the State's obligation to pay compensation should be determined by a decision which shall not be made public but shall be served on the person affected.   Furthermore the reservation is sufficiently specific for the purpose of Article 64 (Art. 64) of the Convention.   As regards the requirement of the "brief statement of the law" the reservation reproduces almost literally the contents of Article 90 of the Federal Constitution.   From these words it can be deduced that the reservation refers to procedural laws in the judicial sphere which contain regulations concerning the publicity of proceedings deviating from Article 6 (Art. 6) of the Convention.   The applicant contests this view.        As regards the compliance with Article 6 para. 1 (Art. 6-1) of the Convention, the Government submit that the Vienna Court of Appeal when deciding on the applicant's appeal could take its decision on the basis of the file.   According to the Convention organs' case-law a public hearing, including the public pronouncement of a decision, is only necessary when a court is concerned with establishing the facts.        The Government, referring to the Sutter judgment of the Court, (Eur. Court H.R., Sutter judgment of 22 February 1984, Series A no. 74) finds that the requirement of public pronouncement of the decision was met because third parties could be given access to the files and be allowed to make copies, if they proved a legitimate interest.        The applicant submits that the possibility that third parties inspect the file cannot replace the public pronouncement of decisions, since it requires that these persons must demonstrate a legitimate interest in the outcome of the proceedings at issue.        After an examination of this issue in the light of the parties' submissions, the Commission considers that it raises questions of fact and law, including questions concerning the Austrian reservation to Article 6 (Art. 6) of the Convention, which can only be determined by an examination of the merits. It follows that this complaint cannot be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,          DECLARES ADMISSIBLE the remainder of the application, without      prejudging the merits.   Secretary to the Commission        President of the Commission        (H.C. KRÜGER)                       (S. TRECHSEL)