CASE OF LAMANNA v. AUSTRIA
Preliminary objection joined to merits (victim);No violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
Nicolas Bratza
8. On 11 March 1993 the applicant was arrested by the Belgian police in Brussels on the basis of an international arrest warrant issued by the Salzburg Regional Court (Landesgericht) on 14 May 1992. The applicant was suspected of attempted murder. Following his extradition by the Belgian authorities, he was placed in Salzburg Prison on 2 July 1993 and remanded in custody. 9. On 13 January 1994 the Salzburg Public Prosecutor’s Office referred the applicant’s case to the Salzburg Regional Court, charging him with attempted murder, aggravated robbery and the unlawful possession of a weapon. 10. On 10 October 1994 an assize court (Geschwornengericht) sitting at the Salzburg Regional Court acquitted the applicant of all the charges against him. The operative provisions and grounds of the judgment read as follows: “Salvatore Lamanna is acquitted of the charges brought against him, namely that, on 2 May 1992 in Wagrain, acting as an accomplice to his brother A.Lamanna, who was prosecuted in separate proceedings, 1. he had attempted to murder Dani and Pedro N. by stabbing Dani N.’s left thigh, left hand, upper part of the body and throat and by shooting at his head which had been grazed by a bullet, ... 2. he had taken unlawfully by force, as described under point 1.), and with a weapon the luggage of Dani and Pedro N. which contained about ATS 250,000 in different currencies; 3. he had unlawfully possessed and carried a revolver; ... in accordance with section 336 of the Code of Criminal Procedure (Strafprozessordnung). Grounds The acquittal is founded on the jury’s verdict.” 11. According to the record of the jury’s deliberations (Niederschrift), as regards the attempted murder charge, the jury found, in dubio pro reo, that the applicant’s defence could not be refuted. In this respect, they noted that the applicant had been alone and the weapon had been in the possession of Dani and Pedro N. who had not testified at the trial. As regards the second charge of taking property by force, the jury considered that the applicant had had no intention to commit a robbery. Finally, concerning the unlawful possession of a revolver, they noted that the weapon had been in the possession of Dani and Pedro N. and that the applicant had only taken it in the course of the fight. 12. Upon pronouncement of the judgment, at the same hearing, defence counsel applied for the applicant’s release and for compensation for pecuniary damage caused by his detention on remand. The prosecutor opposed the claim. The hearing was interrupted for the court to deliberate, but the compensation decision was not announced there and then as the judgment was not yet final. On resumption, the applicant’s release was ordered and the trial closed. 13. The decision of the assize court of 10 October 1994, dismissing the applicant’s request for compensation, was served upon the applicant’s counsel on 4 November 1994. In that decision, the assize court found that the conditions laid down by section2(1)(b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz – “the 1969 Act”) were not satisfied. In its opinion, “A claim to compensation under section 2(1)(b) of the Compensation (Criminal Proceedings) Act ... is conditional on the applicant being cleared of the suspicion of which he was the object in the proceedings. A person who has been detained is so cleared only if all the suspicious circumstances telling against him have been satisfactorily explained, so that they cease to constitute an argument for the suspect’s guilt. Having regard to the record of the jury’s deliberations, who expressly referred to the principle of ‘in dubio pro reo’ when answering the first main question, it had to be assumed that the suspicion against the applicant had not been dispelled. This circumstance was decisive for the decision of the assize court to refuse the request for compensation.” 14. On 18 November 1994 the applicant appealed to the Linz Court of Appeal (Oberlandesgericht), arguing that the reasoning of the assize court was wrong. Reference was also made to Article 6 § 2 of the Convention and the judgment of 25 August 1993 of the European Court of Human Rights in the case of Sekanina v. Austria (Series A no. 266-A). 15. On 1 February 1995 the Linz Court of Appeal, sitting in private, dismissed the appeal as being unfounded. The reasons for its decision started with a summary of the Regional Court’s decision. They went on to refute the applicant’s objections as to the Regional Court’s interpretation of the record of the jury’s deliberations, confirming that the conditions of section 2 § 1 (b) of the 1969 Act were not met. Further, it was stated that the applicant’s reference to the judgment of the European Court of Human Rights in the Sekanina case was not relevant as there was no new and independent assessment of guilt in the present case. Finally, it was held that the Regional Court had correctly refused to take further evidence. 16. Following the Court’s admissibility decision of 29 February 2000, the Supreme Court (Oberster Gerichtshof), upon the Attorney General’s plea of nullity for the preservation of the law as regards the lack of publicity (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), found on 9 November 2000 that there had been a violation of section 6 § 4 of the 1969 Act, taken in conjunction with Article 6 § 1of the Convention, in that the Salzburg Regional Court’s decision of 10 October 1994 had not been pronounced publicly, a deficiency which had not been remedied by the Linz Court of Appeal when taking its decision of 1 February 1995. Therefore, the Supreme Court ordered the Linz Court of Appeal to pronounce its decision of 1 February 1995 in public. 17. On 9 February 2001 the Linz Court of Appeal complied with this order, pronouncing its decision of 1 February 1995 at a public hearing. 18. Under section 336 of the Code of Criminal Procedure, the assize court must acquit the accused as soon as the jury has answered the question of guilt in the negative. 19. 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 the prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...” Section 6 “(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 for 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 judgment was based on the verdict of a jury, the bench shall decide together with the jury. ... (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. ...” 20. As a general rule, there is no public hearing in the Court of Appeal. The Court of Appeal rules after sitting in private. 21. In its judgment of 29 September 1994 the Constitutional Court ruled on the constitutionality of section 2 (1)(b) of the 1969 Act. It found that this provision in itself 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. 266A), 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.