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. 21835/93                       by Johannes WERNER                       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 16 March 1993 by 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 regard to the Commission's decision of 2 September 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 18 November 1994 and the observations in reply submitted by the applicant on 22 December 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen, living in Vienna and born in 1963. Before the Commission, he is represented by Mr. T. Prader, a lawyer practising in Vienna.        The facts of the case, as they have been submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        On 15 May 1991 M.H. and H.H. 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 into detention on remand. On 3 July 1991 the applicant, suspected of having forged the signature on the credit card and on the purchase receipts, was also taken into detention on remand.        On 8 July 1991 M.H. and H.H., and on 19 July 1991 the 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 M.H., H.H. and the applicant, as a graphological expert had found that the 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 a sufficient recollection.        Meanwhile, on 4 February 1992 the Public Prosecutor's Office (Staatsanwaltschaft) had requested the Regional Court to decide that M.H., H.H. and the applicant were not entitled to compensation for detention on remand, pursuant to S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz), as the suspicion against M.H., H.H. and the applicant had not been dissipated.        On 21 April 1992 the Investigating Judge heard M.H., H.H. and the applicant and informed them about the Public Prosecutor's Office's request of 4 February 1992.   They filed a claim for compensation for detention on remand.        On 3 June 1992 the Judges' Chamber (Ratskammer) of the Vienna Regional Court, sitting in camera, dismissed the claim for compensation under S. 2 para. 1 (b) of the Criminal Proceedings Compensation Act. No representative of the Public Prosecutor's Office was present at the deliberations.   The Judges' Chamber found that there still remained a suspicion against M.H., H.H. and the applicant.        On 15 June 1992 M.H., H.H. and the applicant appealed against the Judges' Chamber's decision.   In their appeal they requested the taking of further evidence, in particular the hearing of witnesses.        On 2 September 1992 the Senior Public Prosecutor's Office (Oberstaatsanwaltschaft) submitted written observations on the appeal. It found that the appeal would have to be dismissed.   The Senior Public Prosecutor's Office also submitted that it was not necessary to take further evidence as the statements of the witnesses requested could not lead to the dissipation of the suspicion. These observations were not served on M.H., H.H. and the applicant.        On 29 October 1992 the Vienna Court of Appeal (Oberlandes- gericht), sitting in camera, dismissed the appeal.   No representative of the Senior Public Prosecutor's Office was present at the deliberations.        The Court of Appeal 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, M.H., H.H. and the applicant had not refuted the suspicion existing against them, nor was this suspicion otherwise dissipated.        The Court of Appeal further considered that the 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 innocence of M.H., H.H. and the applicant.        The decision was served on 3 November 1992.   B.    Relevant domestic law   1.    Compensation regarding pecuniary damages 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 (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. 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.        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). The final decision in the proceedings under the Compensation Act is binding on the civil courts, whose 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).   3.    Inspection of files under Section 82 of the Code of Criminal      Procedure        According to Section 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 complaints under Article 6 para. 1 of the Convention concern the lack of a public hearing in the compensation proceedings before the Judges' Chamber of the Vienna Regional Court and the Vienna Court of Appeal, the failure of these courts to pronounce publicly their decisions and an alleged infringement of the principle of equality of arms in the proceedings before the Court of Appeal.   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 M.H. and H.H. wished to withdraw their application.        On 2 September 1994 the Commission decided to communicate the 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 and declared inadmissible the remainder of the application.        The Government's written observations were submitted on 18 November 1994.   The applicant replied on 22 December 1994.   THE LAW        The 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.        Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, read 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 the applicant failed to exhaust domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   Although he appealed against the decision of the Judges' Chamber of 3 June 1992, he neither requested an oral hearing nor expressly relied on Article 6 para. 1 (Art. 6-1) of the Convention. Moreover, the application must be considered as premature since criminal proceedings against the applicant and others have been re- opened or might be re-opened and therefore the requirements of claiming compensation under the Criminal Proceedings Compensation Act have not yet been fully clarified.        This is contested by the applicant, who submits that he had appealed against the decision of the Judges' Chamber to the Court of Appeal and in his appeal had invoked Article 6 (Art. 6) of the Convention. Furthermore there are no indications that the criminal proceedings will actually be re-opened.        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 are matters related to the merits of the complaint and cannot be determined at this stage of the proceedings.        Furthermore, the Commission cannot see how the fact that criminal proceedings against the applicant and others have or might have been re-opened has a bearing on the present application.        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 it 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 hearing including the 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 Section 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 lack of an oral hearing in the compensation proceedings the Government submit that according to the Convention organs' case-law a public hearing is only necessary when a court is concerned with establishing the facts, which is primarily the task of a first instance court, while no hearing is necessary before a second instance court deciding merely issues of law.   For the purpose of the compensation claim the underlying criminal proceedings must be considered as first instance proceedings, while the compensation proceedings themselves must be conceived as second instance proceedings in which only questions of law are determined.   Moreover, since the applicant in the compensation proceedings did not explicitly ask for a public hearing he must be deemed to have waived his right to such a hearing.        As regards the lack of a public pronouncement of the decision given in the course of the compensation proceedings, the Government, referring to the Sutter judgment of the Court, find that the requirement of public pronouncement of the decision was met because third parties could be given access to the files and allowed to make copies, if they prove a legitimate interest.   Moreover, the lack of a public pronouncement of decisions on compensation claims under the Criminal Proceedings Compensation Act would be justified since such a decision could contain the statement that a suspicion against a person continued to exist, which, in the light of the presumption of innocence, is inadvisable.        This is contested by the applicant.   He submits that in the proceedings under the Criminal Proceedings Compensation Act not merely legal questions have to be resolved but facts have also to be established.   Moreover, no public hearing was held in the criminal proceedings because they had been discontinued.   His failure to request a public hearing cannot be considered as a waiver of such a right because the relevant provisions do not provide for an oral hearing.        As regards the alleged violation of the principle of equality of arms, the Government submit that this principle has not been infringed in the compensation proceedings.   Neither before the Judges' Chamber nor before the Court of Appeal a representative of the Public Prosecutor's Office and of the Senior Public Prosecutor's Office respectively attended the deliberations of the court.   In the proceedings at first instance the applicant was confronted with the Public Prosecutor's Office's request of 4 February 1992.   In the appeal proceedings the observations of the Senior Public Prosecutor were not served on the applicant.   However, it was not necessary to let the applicant comment on the Senior Public Prosecutor's statement as it contained no new arguments.        The applicant submits that in the proceedings before the Court of Appeal he could not reply to the submissions of the Senior Public Prosecutor because he was not aware of them.   The principle of equality of arms required that he could see for himself whether the submissions of the Senior Public Prosecutor did not contain any new arguments and whether it was necessary for him to reply thereto.        After an examination of these issues in the light of the parties' submissions, the Commission considers that they raise 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 the remainder of the application 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, by a majority,        DECLARES ADMISSIBLE the remainder of the application, without      prejudging the merits.   Secretary to the Commission        President of the Commission        (H.C. KRÜGER)                       (S. TRECHSEL)