CASE OF WEIXELBRAUN v. AUSTRIA
Violation of Art. 6-2;Costs and expenses partial award - Convention Proceedings
Georg Ress
9. On 4 February 1989 the Austrian police were informed via Interpol that on 30 January 1989 in Poquoson (Virginia, USA) E.P., a German citizen, and H.S., an Austrian citizen, had been killed and that the applicant, who at that time lived in Virginia, was suspected of having killed and robbed them. A warrant of arrest was issued against the applicant in the United States. 10. On 5 February 1989 the applicant, who in the meantime had returned to Austria, was arrested and on 7 February 1989 was remanded in custody. The applicant remained on remand until 17 June 1992. This period was interrupted from 17 May to 6 June 1989 and from 6 February 1998 to 17 May 1989 whilst the applicant served prison sentences imposed in respect of previous convictions. 11. Meanwhile the trial against the applicant took place before the Assizes of the Innsbruck Regional Court sitting with a jury. On 16 October 1991 the jury acquitted the applicant, but the bench of the Assize Court set aside the jury’s verdict as erroneous. A new trial against the applicant and one co-accused was held before another Assize Court of the Innsbruck Regional Court. 12. On 17 June 1992 the Court of Assizes again acquitted the applicant. The jury answered the question as to murder and the question as to aggravated robbery with six votes of “no” and two votes of “yes”. According to the record of the jury’s deliberations, the majority of its members found the applicant not guilty as there had been discrepancies between the statements of the witnesses (“Widersprüche in den Zeugenaussagen”). 13. On 1 October 1993 the Innsbruck Regional Court sitting with a single judge heard the applicant in private on his claim for compensation in respect of his detention on remand. The applicant, assisted by counsel, argued that the proceedings under the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz) infringed the presumption of innocence guaranteed by Article 6 § 2 of the Convention. He referred to the Sekanina v. Austria judgment of the European Court of Human Rights (25 August 1993, Series A no.266-A). The applicant also presented fresh evidence which, in his opinion, could entirely dissipate the suspicion still subsisting against him. 14. On 24 January 1996 a chamber of the Innsbruck Regional Court, composed of three judges, dismissed the applicant’s compensation claim. The Regional Court found that a right to compensation in the applicant’s case would require that the suspicion against him had been entirely dissipated. According to the records of the jury’s deliberations, a majority of the members had found the applicant not guilty on the grounds that there had been discrepancies between the statements of witnesses. The applicant was not acquitted because his innocence had been proven, but because he had been given the benefit of the doubt. Thus, the suspicion against the applicant had not been dissipated. As regards the applicant’s request for the taking of evidence, the Regional Court found that it was prevented from examining further evidence. It referred in this respect to the Constitutional Court’s case-law following the Sekanina judgement, according to which a fresh examination of the question of guilt in compensation proceedings following a final acquittal would be in breach of Article 6 § 2 of the Convention. 15. On 12 February 1996 the applicant appealed against this decision. He submitted, inter alia, that the Regional Court had re-examined the Assize Court’s acquittal. However, it was no longer acceptable to rely on suspicions once an acquittal had become final. 16. On 27 February 1996 the Innsbruck Court of Appeal, sitting in camera, dismissed the applicant’s appeal. It found that a suspicion of having committed a criminal offence is only dissipated if either the claimant’s innocence has been proven, or if all arguments supporting the suspicion against him have been refuted. The right to compensation demands that innocence be established. However, this requirement was not met in the applicant’s case. Referring to the Regional Court’s decision, the Court of Appeal found that the records of the jury’s deliberations clearly expressed the opinion of the members of the jury. In their mind various circumstances spoke against the applicant, but it had not been possible to convict him because of discrepancies between the statements of witnesses. 17. The Court of Appeal concluded that, according to the Sekanina judgment of the European Court of Human Rights, a fresh examination of the question of guilt in the compensation proceedings following a final acquittal would have been in breach of Article 6 § 2 of the Convention, but not the refusal of compensation itself. The Regional Court had not re-examined the question of the applicant’s guilt, rather it had referred to the reasons for which the majority of the jury had voted “not guilty”, and had concluded that the suspicion against the applicant had not been dissipated. 18. The relevant provisions of the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz) read as follows: “(1) A right to compensation arises:... (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; ...” “... (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.” 19. As a general rule, there is no public hearing in the Court of Appeal. The Court of Appeal rules after sitting in private. 20. In its judgment of 29 September 1994 (VfSlg 13879) the Constitutional Court dismissed the application filed by the Graz Court of Appeal to have section 2 (1) (b) of the 1969 Act annulled as being unconstitutional. 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 v. Austria case (judgment of 25 August 1993, Series A no. 266-A), 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. Nevertheless, the Constitutional Court observed that it would be desirable to amend section 2 (1) (b) of the 1969 Act in order to clarify the law.