CASE OF ASAN RUSHITI v. AUSTRIA
Violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
Nicolas Bratza
7. On 1 April 1993 the Graz Regional Criminal Court (Landesgericht für Strafsachen) took the applicant into detention on remand (Untersuchungs-haft) on charges of attempted murder. He was suspected of having, together with an accomplice, tried to kill M.R. in that his accomplice attacked M.R. with a knife, while the applicant prevented him from fleeing. In these and the following proceedings the applicant was represented by counsel. 8. On 1 September 1993 the Graz Regional Criminal Court, sitting as an Assize Court (Geschwornengericht), acquitted the applicant. The jury answered the main question as to attempted murder and the alternative question as to aggravated assault with seven votes "no" to one vote "yes". According to the record of its deliberations (Niederschrift), the jury had answered both questions in the negative as “the evidentiary basis was insufficient”. Following his acquittal, the applicant was released. 9. On 2 September 1993 the applicant, relying on the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz 1969, hereinafter “the 1969 Act”), filed a compensation claim relating to his detention on remand. 10. On 25 November 1993, the Graz Regional Criminal Court, after a first decision had been quashed on appeal, dismissed the applicant's compensation claim. The court was sitting in camera. 11. The court noted that it had heard the applicant on 12 November 1993. It also noted the submissions of the Public Prosecutor's Office of 16 September 1993, proposing that the compensation claim be dismissed. The court, referring to section 2 (1) (b) of the 1969 Act, found that there had been a reasonable suspicion against the applicant, which had not been dissipated, particularly in view of the statement made by the victim at the hearing of 1 September 1993, which was not entirely without credibility. 12. On 3 December 1993 the applicant filed an appeal. He submitted in particular that the Regional Court's reasoning violated the presumption of innocence guaranteed by Article 6 § 2 of the Convention. For the same reason, section 2 (1) (b) of the 1969 Act was unconstitutional. It put the onus of proof as regards the dissipation of the suspicion on the person claiming compensation, even if that person had been acquitted. Further, the applicant claimed that Article 6 of the Convention applied to the compensation proceedings at issue, as they related to a pecuniary claim. He was, thus, entitled to a public hearing and a public pronouncement of the decisions. As there had not been a public hearing at first instance, he requested that such a hearing be held before the court of appeal. 13. On 30 December 1993 the Graz Court of Appeal (Oberlandesgerich) adjourned the proceedings and requested the Constitutional Court (Verfassungsgerichtshof) to give a ruling that section 2 (1) (b) of the 1969 Act was unconstitutional. 14. On 29 September 1994 the Constitutional Court dismissed the request of the Graz Court of Appeal (see below, § 19). 15. On 15 December 1994 the Graz Court of Appeal, sitting in camera, dismissed the applicant's appeal. The court, referring to the decision of the Constitutional Court, found that in order to determine whether the suspicion against the applicant had been dissipated it was not entitled to examine the statements of the witnesses heard or other results of the taking of evidence in the criminal proceedings, but had to limit itself to the reasons which the jury gave for its finding. The court also referred to case-law according to which the suspicion was only dissipated if either the claimant's innocence had been proven, or if all arguments supporting the suspicion against him had been refuted. An acquittal for lack of evidence did not give an entitlement to compensation unless the innocence of the person concerned had at least become probable. Applying these principles to the facts of the case the court continued as follows: “It can be concluded here - from the above-mentioned questions which were put to the jury and from the record of that jury’s deliberations - that both the main and the alternative question were answered with seven ‘no’ votes and one ‘yes’ vote and that seven jurors therefore cast a ‘no’ vote in response to the main and the alternative question ‘because the evidence was insufficient’. This means that on the one hand one juror in any case found the applicant guilty, whereas on the other hand the other jurors answered the questions addressed to them in the negative only because they considered the evidence insufficient, in other words, they were of the opinion that the evidence did not suffice to find Asan Rushiti guilty of the charges brought against him. By no means can one draw the conclusion that, as a result of these considerations, the suspicion has been dispelled or Rushiti’s innocence has at least become probable!” It concluded that the suspicion against the applicant had not been dissipated. 16. This decision was served on the applicant's counsel on 5 January 1995.  17. The relevant provisions of the Compensation (Criminal Proceedings) Act 1969 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.” 18. As a general rule, there is no public hearing in the Court of Appeal. The Court of Appeal rules after sitting in private. 19. 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.