CASE OF SZÜCS v. AUSTRIA
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Feyyaz Gölcüklü;N. Valticos
6. Mr Zoltan Szücs, a Hungarian national born in 1971, lives at Halaszetelek (Hungary). 7. On 8 October 1990 the investigating judge at the Wiener Neustadt Regional Court (Kreisgericht) began a preliminary investigation and issued a warrant for the arrest of the applicant and three other persons suspected of having made fraudulent use of another person’s credit card when making purchases in various shops in Austria to the value of about 200,000 Austrian schillings (ATS). 8. On 25 February 1991 the police arrested the applicant at the border between Austria and Hungary as he was preparing to enter Austria. 9. On 26 February 1991 the investigating judge at the Eisenstadt Regional Court interviewed Mr Szücs and detained him pending trial. 10. On 4 April 1991 he again interviewed the applicant. 11. On 11 May 1991, at the request of the public prosecutor’s office, the investigating judge decided to discontinue the proceedings in the light of a graphologist’s finding that it was unlikely that the signatures on the payment slips for the purchases made with the stolen credit card were in the applicant’s hand. 12. The applicant was released on the same day. 13. On 6 May 1991 the applicant sought compensation from the State for the pecuniary damage sustained on account of his detention. 14. On 8 May 1991 the Review Division (Ratskammer) of the Wiener Neustadt Regional Court refused his compensation claim on the ground that, contrary to the requirements of section 2 (1) (b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz, “the 1969 Act” – see paragraph 20 below), the suspicion concerning him had not been dispelled. 15. On 27 May 1991 the applicant appealed against that decision to the Vienna Court of Appeal (Oberlandesgericht). 16. On 9 January 1992 the Court of Appeal, sitting in private, dismissed the appeal. It ruled as follows: “The Court accepts the appellant’s submission that in its decision the Review Division of the Wiener Neustadt Regional Court confined itself essentially to mentioning the applicable provisions and setting out the facts and did not make use of certain concrete information apparent from the file. The appellant, who has in the meantime been convicted in Austria of handling under Article 164 §§ 1 (2) and 2 of the Criminal Code and imprisoned, is in fact suspected of having participated in obtaining goods fraudulently by using an unlawfully obtained credit card made out in the name of another person. It cannot be ruled out that he signed payment slips using a card made out in the name of a woman by wearing a wig. This attempt to investigate was necessary as it had not been possible to bring the other offenders before the court below. Against the conjecture that the signatures were written by the appellant there stands only his assertion that he did not sign any payment slips and that he does not look like a girl either. In so far as he sought to have admitted as genuine proof of his innocence the expert’s statement that the signatures on the payment slips were probably not written by the appellant, regard must be had to the scale of probability drawn up by the expert, which does not at all exclude that the appellant wrote the signatures, and it must be observed that this submission by the appellant does not refute the argument that he took part in the fraudulent acts by providing the necessary transport to the various places where the offences were committed and conveying the proceeds from them, knowing that the other persons involved were committing offences. On the contrary, the large number of fraudulent purchases made both in Austria and in Italy supports the view that the appellant was fully aware of the criminal nature of the operations and that it was in full knowledge of this that he assisted the offenders in their criminal acts by continuing to provide transport (Article 12 of the Criminal Code). Contrary to what the appellant maintained, compensation under section 2 (1) (b) of the Compensation (Criminal Proceedings) Act is payable only on condition that the innocence of the detained person can be regarded as proved; that is to say, it must be proved that the detained person is not punishable, and cannot be prosecuted, on account of the act in respect of which his detention was ordered. Where that remains only doubtful, suspicion is not dispelled and the condition on which compensation may be paid is not satisfied (see Mayerhofer-Rieder, second ed., E.11a and 12a, on section 2 of the Compensation (Criminal Proceedings) Act). In the instant case it cannot be said that suspicion has been dispelled, and the appeal, being unfounded, must therefore fail.” 17. In his pleadings of 27 May 1991 (see paragraph 15 above) Mr Szücs also complained of the excessive length of the detention pending trial and sought compensation for unlawful detention under section 2 (1) (a) of the 1969 Act (see paragraph 20 below). 18. On 9 January 1992, in a separate decision, the Court of Appeal, sitting in private as a court of first instance, dismissed the applicant’s claim on the ground that neither his arrest nor the order for his detention pending trial or the continuation of that detention had been unlawful. The Court of Appeal also referred to the reasoning in its other judgment of the same day (see paragraph 16 above). 19. Article 90 § 1 of the Federal Constitution provides: “Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law.” 20. The relevant provisions of the 1969 Act read as follows: “(1) A right to compensation arises: (a) where the detention of the injured party has been unlawfully ordered or extended by a national court ...; (b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...” “(1) ... (2) A court which acquits a person or otherwise frees him from prosecution ... (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions of compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3 ... If the investigating judge decides to discontinue the proceedings, the Review Division concerned shall rule. (3) Before ruling, the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ... (4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and on the public prosecutor ... (5) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within two weeks. (6) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision. If the court which has to rule is the court of first instance, the investigations shall be carried out by the investigating judge. (7) Once the decision has become final, it is binding on the courts in subsequent proceedings.” 21. If the courts consider that the conditions in sections 2 and 3 have been satisfied, the applicant must apply to the Auditor-General’s Department (Finanzprokuratur) for his claim to be allowed. If no decision has been taken on his claim within six months or if it has been refused in whole or in part, the claimant may bring a civil action against the Republic of Austria (sections 7 and 8 of the Act). 22. As a general rule, there is no public hearing before the Review Division of the Regional Court or in the Court of Appeal in appeal proceedings (Beschwerden) against a decision of the Review Division. The two courts rule after sitting in private and after hearing the representative of the public prosecutor’s office and the principal public prosecutor’s office respectively (Articles 32 § 1 and 35 § 2 of the Code of Criminal Procedure – Strafprozeßordnung). 23. Article 82 of the Code of Criminal Procedure provides: “The courts shall have discretion to decide whether a party or his duly appointed representative may, in cases other than those expressly provided for in the Code of Criminal Procedure, be given leave to inspect documents in the file or whether copies may be given to them, provided that the persons concerned can convincingly show that they need such copies in order to be able to claim compensation or to support an application for a retrial or for some other reason.” 24. It is the practice of the registries of the Austrian Constitutional Court and Administrative Court to make their respective court’s judgments available on request. The courts also publish a selection of their decisions each year. Since an amendment to the Supreme Court Act in 1991, the judgments of the Supreme Court (Oberster Gerichtshof) have likewise been available to the public on request. The Supreme Court also publishes a selection of its judgments each year.