CASE OF WERNER v. AUSTRIA
Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings;Non-pecuniary damage - finding of violation sufficient
Feyyaz Gölcüklü;N. Valticos
6. Mr Johannes Werner, an Austrian national born in 1963, lives in Vienna. 7. On 15 May 1991 the police arrested a Mr and Mrs Hauser (see paragraph 25 below), who were suspected of fraudulently using a credit card which did not belong to them when making purchases in various shops in Vienna to the value of about 200,000 Austrian schillings (ATS). On 17 May they were detained pending trial. 8. On 1 July 1991 the police also arrested the applicant, who was suspected of having aided and abetted Mr and Mrs Hauser by forging the signature on the credit card. On 3 July he was detained pending trial. 9. On 8 July 1991 Mr and Mrs Hauser were released, and on 19 July the applicant was released. 10. On 24 February 1992 the investigating judge at the Vienna Regional Court (Landesgericht) 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 Mr Werner’s hand and of the fact that the witnesses called by the public prosecutor did not have sufficiently clear memories. 11. In the meantime, on 4 February 1992, the public prosecutor’s office (Staatsanwaltschaft) had asked the Regional Court to declare that the applicant and Mr and Mrs Hauser were not entitled to compensation for their detention under section 2 (1) (b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz, “the 1969 Act” – see paragraph 19 below), on the ground that the suspicion concerning them had not been dispelled. 12. On 21 April 1992 the investigating judge interviewed the applicant and Mr and Mrs Hauser and told them of the application made by the public prosecutor’s office. 13. The applicant and Mr and Mrs Hauser sought compensation from the State for the pecuniary damage sustained on account of their detention. 14. On 3 June 1992 the Review Division (Ratskammer) of the Vienna Regional Court, sitting in private, refused their compensation claims on the ground that, contrary to the requirements of section 2 (1) (b) of the 1969 Act, the suspicion concerning them had not been dispelled. No representative of the public prosecutor’s office attended the deliberations. 15. On 15 June 1992 Mr Werner and Mr and Mrs Hauser appealed against that decision to the Vienna Court of Appeal (Oberlandesgericht). They asked the Court of Appeal to take further evidence and, in particular, to hear witnesses. 16. On 2 September 1992 the principal public prosecutor’s office (Oberstaatsanwaltschaft) submitted written observations. It asked the Court of Appeal to dismiss the appeal and not to take further evidence as the witnesses’ statements were not capable of exculpating the appellants. These observations were not communicated to the applicant or to Mr and Mrs Hauser. 17. On 29 October 1992 the Vienna Court of Appeal, sitting in private, dismissed the appeal. It ruled as follows: “In the first place, the appellants’ argument that suspicion does not have to be wholly dispelled for compensation to be payable under section 2 (1) (b) of the Compensation (Criminal Proceedings) Act is contradicted by the settled case-law of the Austrian courts. It has been consistently held that suspicion must be dispelled sufficiently to establish that the detained person is not punishable, and cannot be prosecuted, on account of the conduct in respect of which his detention was ordered. Where that remains only doubtful, suspicion is not dispelled within the meaning of section 2 (1) (b) of the Act. The appellants’ assertion that this case-law reverses the burden of proof is incorrect, since cogent evidence must be adduced before it can be accepted that suspicion has been dispelled. In this connection, there is no justification for giving the appellants, as they demanded, the opportunity to prove their innocence by taking further evidence, since the evidence they propose to adduce cannot be considered likely to lead to such a result. Seeing that the suspicion concerning the appellants is based mainly on the witness statements of 16 March 1991 and that, in addition, it is not possible to determine when the other offences were committed, conclusive results cannot be expected if fresh evidence is taken in the form of the appellant Johannes Werner’s time-sheets and itineraries for 18 and 19 March, together with his tachograph discs, because the offences could have been committed during the rest stops on those journeys, or before or after them, especially as there are gaps in the time-sheets submitted by Mr Werner. The witnesses it was proposed to call have already been interviewed by the police and have already been confronted with the appellants. The main reason why the prosecution was abandoned was that with the passing of time those witnesses’ memories had begun to falter. However, if their memories were so defective that they could no longer be considered adequate to establish guilt, neither can they in the present proceedings form an adequate basis for awarding compensation. The appellants did not dispute that the police inquiries had given rise to real suspicion concerning them. That suspicion was not subsequently dispelled, but on account of some remaining doubt was simply not sufficient to support a finding of guilt. The conditions which must be met under section 2 (1) (b) of the Compensation (Criminal Proceedings) Act in order to be able to claim compensation have accordingly not been satisfied and the appellants’ claims must therefore fail.” No representative of the principal public prosecutor’s office attended the deliberations. 18. 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.” 19. The relevant provisions of the 1969 Act read as follows: “(1) A right to compensation arises: (a) … (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.” 20. 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). 21. 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). 22. At the material time Article 35 § 2 of the Code of Criminal Procedure provided: “[Public prosecutors] may attend the deliberations of the court, provided that these do not concern a decision to be delivered at the trial [Hauptverhandlung], or on the sitting day [Gerichtstag] appointed for ruling on an ordinary appeal or an appeal on points of law; they shall not, however, be entitled to be present during the vote and the taking of the decision [Beschlußfassung].” Since 1 January 1994 that Article has been worded as follows: “Where the public prosecutor at an appellate court makes observations concerning an appeal on points of law or an ordinary appeal against a judgment or any other judicial decision, the appellate court must communicate those observations to the accused (person concerned) and indicate to him that he is entitled to comment on them within a specified period that must be reasonable. Such communication is not necessary where the prosecutor does no more than submit, without argument, that the appeal should be dismissed or merely submits that it should be allowed or if the appellate court allows the accused’s appeal.” 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.