Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 13126/87
by Karl SEKANINA
against Austria
The European Commission of Human Rights sitting in private
on 3 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. K. ROGGE, Deputy to the Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 April 1987
by Karl SEKANINA against Austria and registered on 10 August 1987 under
file No. 13126/87;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to :
- the Commission's decision of 4 September 1989 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
2 December 1989 and the observations in reply submitted
by the applicant on 9 January 1990;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Austrian citizen born in 1937 who resides
in Vienna, is represented by Mr. Wolfgang Moringer, a lawyer
practising in Linz. He complains that the presumption of innocence
has been violated by the fact that compensation for his detention on
remand had been refused after he had been acquitted.
The facts as submitted by the parties may be summarised as follows.
The applicant was detained on remand for about one year, from
1 August 1985 to 30 July 1986, in connection with criminal proceedings
in which he was suspected of having murdered his wife. She died
following a fall out of a window of the matrimonial home on the fifth
floor of an apartment house in Linz.
Various remedies by which the applicant sought to challenge
the murder suspicion during his detention were rejected. Eventually
he was tried on a charge of murder and on a further charge of illegal
coercion against a fellow prisoner whom he had allegedly threatened to
kill if he disclosed certain admissions concerning the murder charge
which the applicant had allegedly made during his detention.
However, on 30 July 1986 a Court of Assizes (Geschworenen-
gericht) at the Regional Court (Landesgericht) of Linz acquitted the
applicant of both charges. The jury rejected the murder charge by a
verdict of seven to one, the coercion charge by a unanimous verdict.
In the jury's memorandum (Niederschrift der Geschworenen) it was
stated that, concerning the question of murder, "there was no conclusive
evidence to justify Mr. Sekanina's conviction of murder. According to
Prof. Kaiser's medical expert opinion Mrs. Sekanina would still have
been able to call her husband a murderer. The statements of some
witnesses appear incredible to us" ["keine stichhaltigen Beweise, um
Herrn Sekanina als Mörder zu verurteilen. Lt. medizin. Gutachten von
Prof. Kaiser hätte die Frau Sekanina ihren Mann noch als Mörder
bezeichnen können. Die Aussagen einiger Zeugen erscheinen uns
unglaubwürdig"]. Concerning the question of coercion the jury stated
in the memorandum "(according to their testimony) the other three
fellow prisoners have not heard anything of a serious threat of
killing" ["Die anderen 3 Mithäftlinge haben nichts von einer schweren
Drohung mit dem Tod gehört (lt. ihrer Zeugenaussagen)"].
The applicant was released immediately after the reading of
the verdict. The public prosecution did not appeal against the
applicant's acquittal.
Subsequently, the applicant requested a State contribution to
the necessary costs of his defence (in accordance with Section 393 a
of the Code of Criminal Procedure) and compensation for pecuniary
damage suffered as a result of the fact that he had been kept in
detention. The public prosecutor's office raised objections as to the
quantum of the first claim. As regards the second claim, it requested
the Court to find that the conditions of Section 2 para. 1 b of the
Act on Compensation in Criminal Matters (strafrechtliches
Entschädigungsgesetz) were not met as the suspicion raised in the
criminal proceedings against the applicant had not been entirely
dissipated.
The Regional Court of Linz, sitting without a jury,
dealt with the matter in two separate decisions.
On 12 December 1986 it ordered the State to pay a contribution
of 22,546.50 AS towards the necessary costs of the applicant's
defence. The applicant's appeal against this decision, by which he
demanded the award of a higher amount, was rejected by the Linz Court
of Appeal (Oberlandesgericht) on 15 January 1987.
The applicant's claim to be awarded compensation for
pecuniary damage was rejected by the Regional Court on 10 December
1986. The Court found that despite the applicant's acquittal the
suspicion against him had not been dissipated in the sense that no
further argument could be drawn from this suspicion as to his guilt
("Der Verdacht ist erst dann entkräftet, wenn alle gegen den
Verhafteten sprechenden Verdachtsmomente widerlegt worden sind, so
dass sie aufgehört haben, ein Argument für die Schuld des Verdächtigen
zu bilden"). There were still important elements of suspicion:
repeated threats, attacks and aggressions, satisfaction at his wife's
death, admissions made to a fellow prisoner, financial difficulties,
and unsuccessful attempts to be given the custody of the children.
The vote of the jury also showed that it had acquitted the applicant
only because it gave him the benefit of the doubt.
On 25 February 1987 the Linz Court of Appeal confirmed this
decision. It rejected the applicant's argument that the relevant
provision of the Act on Compensation in Criminal Matters (Section 2
para. 1b) was unconstitutional and infringed Article 6 para. 2 of the
Convention because it required, beyond an acquittal, dissipation of
suspicion. The presumption of innocence was to be observed in the
proceedings prior to the judgment, but did not give a right to
compensation to every detained person in case of his acquittal. The
exclusion of compensation in the challenged provision was not based on
guilt, but on continued existence of suspicion. The finding by a
court that such a suspicion still existed did not infringe the
presumption of innocence. In the present case it could not be
concluded merely from the vote of the jury that the suspicion had been
dissipated. More important was the memorandum of the jury which
implied doubts in this respect. In any event the court competent to
decide on the compensation issue was not bound by the acquittal as
regards the question of suspicion. This suspicion had repeatedly been
confirmed in the investigation, in particular by the decisions
prolonging the applicant's detention on remand. The Regional Court
had rightly described the elements justifying the assumption of
continued suspicion. In addition there was further evidence to
support this assumption in the light of the trial.
COMPLAINT
The applicant alleges a violation of Article 6 para. 2 of
the Convention.
PROCEEDINGS
The application was introduced on 21 April and registered on
10 August 1987.
On 4 September 1989 the Commission decided to give notice of
the application to the respondent Government and to invite them to
submit observations in writing on the admissibility and merits of the
application.
On 1 December 1989 the Government submitted their observations
to which the applicant replied on 9 January 1990.
THE LAW
Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:
"Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law."
The applicant alleges a violation of this provision in that,
despite his acquittal, the courts assumed a continuing suspicion
against him when refusing his claim to be compensated for his
detention. The Commission notes that the relevant decisions were
taken under Section 2 para. 1 (b) of the Act on Compensation in
Criminal Matters which provides for compensation, inter alia, if the
person concerned has been acquitted and the suspicion against him
has been dissipated. The Austrian courts interpret this provision in
the sense that the acquittal must also have removed any suspicion
against the accused.
The Government submit that the European Court of Human Rights
repeatedly found it compatible with the presumption of innocence, as
laid down in Article 6 para. 2 (Art. 6-2), to refer to a continued state of
suspicion where this did not amount to a determination of the accused
person's guilt (cf. Adolf judgment of 26 March 1982, Minelli judgment
of 25 March 1983, and the Lutz, Englert and Nölkenbockhoff judgments
of 25 August 1987, Eur. Court H.R., Series A nos. 49, 62 and 123).
The Government contend that the principles developed in these
judgments also apply in the present case. In this respect the
Government emphasise in particular that the statements contained in
the relevant Austrian court decisions did not amount to a finding of
guilt, but were merely based on a state of suspicion, and thus
compatible with the presumption of innocence as laid down in Article 6
para. 2 (Art. 6-2) of the Convention.
The applicant contests this. He observes that in the present
case it was only for technical reasons that the decision on the
consequences of his acquittal was not entrusted to the Court of
Assizes itself. In substance this decision was part of the
determination of the criminal charges against him, and after his
acquittal there was in his opinion no longer any room for maintaining
a suspicion against him, since the jury's verdict should be the final
word on this question.
The Commission considers that the case raises complex issues
concerning the interpretation of Article 6 para. 2 (Art. 6-2) of the
Convention. The application cannot therefore be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 6-2) of the Convention, but requires to be examined as to the
merits.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Deputy to the Secretary President of the Commission
to the Commission
(K. ROGGE) (C.A. NØRGAARD)