E.R. v. AUSTRIA



THE FACTS

The facts presented by the parties and apparently not in dispute
between them may be summarised as follows:

1. On 26 October 1950 the applicant was convicted of murder by the
Regional Court (Kreisgericht) of Korneuburg and sentenced to life
imprisonment. His plea of nullity (Nichtigkeitsbeschwerde) from this
decision was dismissed by the Supreme Court (Oberster Gerichtshof) on
31 March 1951.

2. On 30 October 1959 the applicant made his first application (No.
624/59) to the Commission. This application was rejected on 3 June 1960
on the ground that, with the exception of the allegation that the
Central Murder Commission had refused to make a fresh investigation of
his case, all the facts alleged related to a period before 3 September
1958, the date of the entry into force of the Convention with respect
to Austria. Moreover, the refusal of a fresh investigation did not
violate any of the rights and freedoms guaranteed by the Convention.

3. On 23 December 1960 the applicant made an application for retrial
which led to new extensive investigations. On 6 May 1966 the Regional
Court set aside the applicant's conviction on the ground that there was
new evidence available.

The prosecution appealed against this decision but it was confirmed by
the Court of Appeal (Oberlandesgericht) in Vienna on 8 July 1966.

The applicant was thereupon transferred to detention on remand and the
prosecution commenced investigations with a view to retrial. On 13
October 1966 the prosecution applied for the proceedings against the
applicant to be terminated and on 14 October 1966 the applicant was
finally released, having been imprisoned for a total period of 17
years, 4 months and 10 days.

4. On 19 October 1966 the Regional Court in Korneuburg rejected the
applicant's claim for compensation during the two periods of detention
on remand from 4 June 1949 to 31 March 1951 and from 8 July 1966 to 14
October 1966 and also the applicant's claim for compensation on account
of his conviction and sentence. The court considered that the applicant
had not succeeded in invalidating (entkräften) the suspicion which lay
upon him.

The applicant's appeal (Beschwerde) against this decision was rejected
by the Court of Appeal on 30 December 1966.

5. The applicant alleged violations of Articles 4, 5 and 6 of the
Convention.
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*    The partial decision of 3-4 February 1969 has been published in
Collection of Decisions, Vol. 30, pp. 31-52.
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PROCEEDINGS

1. By its partial decision of 3 and 4 February 1969, the Commission
declared inadmissible the applicant's complaints under:

-    Articles 4 and 5 of the Convention concerning his detention as
a convicted person and pending the retrial proceedings;

-    Article 6 of the Convention concerning the proceedings on his
application for retrial;

-    Article 6 (2) and (3) of the Convention concerning the
proceedings on his application for compensation.

The Commission further decided to adjourn its examination of the
applicant's remaining complaint that Article 6 (1) of the Convention
was violated in the proceedings on his application for compensation.
In this connection, the Commission had regard to the submission of the
applicant that his claim for compensation must be classified as a
"civil right" within the meaning of Article 6 (1) of the Convention and
that, in the determination of this right, the principle of "equality
of arms" had been violated by the Austrian courts.

2. When taking the above decision, the Commission noted that reform
legislation concerning compensation for unjustified detention was
pending before the Austrian Parliament which might also affect the
situation of the applicant.

3. Some months after the Commission's decision the Federal Act of 8
July 1969 on Compensation for Detention, under Criminal Law and
Conviction (Bundesgesetz vom 8. Juli 1969 über die Entschädigung für
strafgerichtliche Anhaltung und Verurteilung) was promulgated.

It appears from Article 2 (1) (c) of this Act that compensation for
detention following a final conviction which has later been set aside
can no longer be refused on the ground that the suspicion against the
claimant has not been invalidated. Further, under Article 12 (2) (b)
in fine, compensation for such detention may be claimed by persons
convicted after 27 April 1945 and detained for a period of 10 years or
longer. This clause covers the applicant's case.

4. Immediately after the promulgation of the above Federal Act, counsel
for the applicant filed a new application for compensation with the
Regional Court and on 25 May 1970 the Court decided that:

-    the applicant was not entitled to compensation for his detention
pending trial at first instance and appeal (4 June 1949 to 31 March
1951) and for his detention pending retrial (8 July to 14 October
1966);

-    The applicant was entitled to compensation for the damage
suffered as a result of his conviction in 1950-51, i.e. in connection
with his detention as a convicted person from 1 April 1951 until 7 July
1966.

The amount of compensation to be paid to the applicant was to be fixed
in subsequent proceedings.

5. On 22 July 1970 the Commission took note of the new Federal Act and
of the proceedings mentioned under 4 above. It decided to adjourn its
examination of the admissibility of the applicant's remaining complaint
under Article 6 of the Convention until the new domestic proceedings
concerning his claim for compensation have been concluded by a final
decision on the amount.

6. By letters of 10 and 13 March, the applicant informed the Commission
that he had on 9 March 1971 concluded a compromise (Vergleich) with the
Republic of Austria, represented by the Federal Minister of Justice.

Under the terms of this agreement, a copy of which has been submitted:

- the applicant is to receive 1,000,000 Austrian Schillings
compensation for the damage suffered as a result of his conviction in
1950;

- the Government undertakes to pay retroactively the applicant's social
security contributions (Sozialversicherungsbeiträge) for the period
between 1 April 1951 and 7 July 1966 in the amount of 5,656.10
Schillings;

- the applicant states that any claims which he may have against the
Republic will be satisfied by the payment of the above sums;

- the applicant has accordingly informed the Commission that he wishes
to withdraw his application.

FINDINGS OF THE COMMISSION

The Commission notes the applicant's statement that any claims which
he may have against the Republic of Austria will be satisfied by the
payment of the sum agreed upon and also considers that the compromise
concluded between the applicant and the Republic of Austria on 9 March
1971 is in harmony with human rights as defined in the Convention. It
finds that consequently there are no reasons of a general character
affecting the observance of the Convention which, in spite of the
applicant's declaration of withdrawal of 10 March 1971, would
necessitate a further examination of the remainder of the application.

For these reasons, the Commission decides TO STRIKE THIS APPLICATION
OFF ITS LIST OF CASES