THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27629/95 
by C. H. 
against Austria

The European Court of Human Rights (Third Section) sitting on 14 December 1999 as a Chamber composed of

Sir Nicolas Bratza, President,

Mr P. Kūris,

Mrs F. Tulkens,

Mr W. Fuhrmann, 
 Mr. K. Jungwiert, 
 Mrs H.S. Greve, 
 Mr K. Traja, judges, 

and Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 March 1995 by C. H. against Austria and registered on 15 June 1995 under file no. 27629/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 15 November 1996 and the observations in reply submitted by the applicant on 27 January 1997;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant is an Austrian national, born in 1972 and living in Vienna. He is a student. He is represented before the Court by Mr. G. Liedermann, a lawyer practising in Vienna.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 12 September 1992 police officers of the Vienna Federal Police Authority (Bundespolizeidirektion) arrested the applicant in the course of a demonstration on suspicion of having attempted to resist the acts of a public authority (versuchter Widerstand gegen die Staatsgewalt) and of having caused bodily harm to a police officer.

On 14 September 1992 the investigating judge ordered that the applicant be remanded in custody. On 17 September 1992 the applicant was released.

On 23 December 1992 the Vienna Public Prosecutor's Office (Staatsanwaltschaft) filed a bill of indictment against the applicant charging him with attempting to resist an act of a public authority and causing aggravated bodily harm.

On 15 July 1993 and 7 October 1993 the trial against the applicant took place before the Vienna Regional Court (Landesgericht). On 7 October 1993 the applicant was acquitted. The Regional Court gave its decision in summary form (gekürzte Urteilsausfertigung).

On 21 October 1993 the applicant requested compensation for the detention on remand, inter alia, under Section 2 § 1 (b) of the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz), on the ground that the suspicion against him had been dissipated.

On 11 February 1994 the Vienna Regional Court dismissed the applicant's claim for compensation. It found that, notwithstanding the applicant's acquittal, the suspicion that he had committed criminal offences had not been dissipated. The Court noted that, at the trial, police officer R.F. had stated that he had been kicked by the applicant, and police officer M.H. stated that he had seen police officer R.F. on the ground and the applicant kicking him. Police officer P.S. had stated that he had seen two police officers trying to arrest the applicant while the applicant had been lashing out. Other witnesses heard by the court did not make any statements on the incident. Because of several contradictions between the statements of the police officers R.F. and M.H. as to the location and the specific conduct of the applicant, their statements were not sufficient to establish with the necessary degree of certainty the applicant's guilt. However, since their statements had been credible on the whole and police officer R.F.'s injuries had been proved, a suspicion against the applicant that he had committed the offences charged continued to exist. Thus, the condition for granting compensation under Section 2 § 1 (b) of the Criminal Proceedings Compensation Act, namely that the suspicion against the person concerned had been dissipated, had not been met.

On 10 March 1994 the applicant appealed.

On 31 May 1994 the Vienna Court of Appeal (Oberlandesgericht) instructed the Regional Court to supplement its summary judgment of 7 October 1993. The Court of Appeal referred to the case-law of the European Court of Human Rights, according to which it was incompatible with the presumption of innocence under Article 6 § 2 of the Convention to rely, in a decision refusing compensation for detention on remand, on a continuing state of suspicion against the person concerned, which was not supported by the reasons given in the judgment itself. Since the summary judgment did not contain any findings on points of evidence which had led to the acquittal, there was an insufficient factual basis for deciding on the applicant's appeal.

At an unspecified date the Regional Court supplemented its summary judgment of 7 October 1993. It stated that, even if the evidence had not been sufficient to convict the applicant, the suspicion against him had not been dissipated. The continuing state of suspicion was based on the statements of two witnesses, police officers R.F. and M..H., who had stated in a convincing way that the applicant had attacked R.F. in the course of his arrest. Furthermore, R.F. had suffered injuries which corresponded to the version of events given by him. The statements of the other witnesses heard by the Court neither confirmed nor dissipated the suspicion against the applicant.

On 30 August 1994 the Vienna Court of Appeal dismissed the applicant's appeal. It found that, in its decision refusing compensation for detention on remand, the Regional Court had sufficiently explained why the suspicion against the applicant had not been dissipated. The applicant's argument that an acquittal as such dissipated all remaining suspicions could not be followed. In its judgment in the Sekanina case, the European Court of Human Rights had only found that it was an infringement of the presumption of innocence if a court in remand compensation proceedings adduced arguments against a dissipation of suspicion which had not been contained in a previous judgment acquitting the person concerned. In the present case, however, the Regional Court had relied on arguments already contained in the acquittal judgment.

B. Relevant domestic law and practice

The Criminal Proceedings Compensation Act provides for compensation for pecuniary loss resulting from detention on remand. The conditions to be met are laid down in Sections 2 and 3. Section 2 § 1 (a) relates to the case of unlawful detention on remand. Section 2 § 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.

Section 6 § 1 stipulates that when a court orders or prolongs detention on remand, the superior court is competent to decide whether the conditions of Sections 2 § 1 (a) and 3 are met. Section 6 § 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 Sections 2 § 1 (b) and 3 are met. In these proceedings the detained person has to be heard and, if necessary, evidence has to be taken. According to Section 6 § 4 a decision on a compensation claim under Section 2 § 1 has to be served on the person concerned but does not have to be made public. The detainee and the Prosecutor's Office have a right of appeal to the superior court which can, if necessary, take further evidence. The final decision in these proceedings is binding on the civil courts.

If the said courts find that the conditions under Sections 2 and 3 are met, the person concerned 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 (Sections 7 and 8).

In 1993 the Graz Court of Appeal filed an application with the Constitutional Court to have Section 2 § 1 (b) of the Criminal Proceedings Compensation Act annulled as being unconstitutional. In its judgment of 29 September 1994 (VfSlg 13879) the Constitutional Court dismissed this application as it found that Section 2 § 1 (b) as such did not violate Article 6 § 2 of the Convention which, under Austrian law, has the force of constitutional law. In the light of the Sekanina judgment, it held that it was not the refusal of a claim for compensation which was contrary to the Convention, but the re-examination of the question of guilt after a final acquittal. In the Constitutional Court's view only the separate re-assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence.

COMPLAINT

The applicant complains under Article 6 § 2 of the Convention that the Austrian courts disregarded the presumption of innocence when refusing his claim for compensation under Section 2 § 1 (b) of the Criminal Proceedings Compensation Act, in that, despite his acquittal by the Regional Court, they found that a suspicion against him continued to exist.

PROCEDURE

The application was introduced on 8 March 1995 and registered on 15 June 1995.

On 4 September 1996 the European Commission of Human Rights decided to communicate the applicant's complaint concerning the violation of the presumption of innocence to the respondent Government and to declare the remainder of the application inadmissible.

The Government's written observations were submitted on 15 November 1996. The applicant replied on 27 January 1997.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains under Article 6 § 2 of the Convention that the Austrian courts violated the presumption of innocence in the compensation proceedings.

Article 6 § 2 reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Government submit that the applicant's acquittal was an acquittal in dubio pro reo which had been pronounced despite the fact that suspicions against the accused persisted. The present case must be distinguished from the Sekanina v. Austria judgment of 25 August 1993 (Series A no 266-A) as the Court's main argument for finding a violation of Article 6 § 2 was that the decision of the Court of Appeal on Mr. Sekanina's request for compensation involved a new assessment of Mr. Sekanina's guilt and was not merely based on the acquittal judgment or the record of the deliberations of the jury. In the present case, however, the decision dismissing the compensation claim referred exclusively to the doubts expressed in the supplementary document to the summary judgment, and it was made clear that no statement equivalent to a conviction was made by the court dealing with the compensation claim, which only noted that the suspicions had not been dissipated.

The applicant contests that he has been acquitted in dubio pro reo, as the Criminal Code does not distinguish between an acquittal in dubio pro reo and any other kind of acquittal. He submits that, on the basis of the findings in the Sekanina case, any voicing of suspicions, once the acquittal has become final, is no longer admissible. Furthermore, the reasons for his acquittal were only furnished because of the compensation proceedings. Therefore they could not be considered to be part of the original judgment. The considerations that the suspicion had not been dissipated had been taken from the case-file after the acquittal had become final. The conduct of the Austrian courts thereby contravened Article 6 § 2 of the Convention.

The Court considers, in the light of the parties' submissions, that the applicant's complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case, the remainder of the application.

S. Dollé N. Bratza 
 Registrar President

27629/95 - -


- - 27629/95