PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 28 October 1996 and by the Government of the Republic of Austria (“the Government”) on 25 November 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 21835/93) against Austria lodged with the Commission under Article 25 by an Austrian national, Mr Johannes Werner, on 16 March 1993. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Austria recognised the compulsory jurisdiction of the Court (Article 46); the Government's application referred to Article 48. The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.

The applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 31 of Rules of Court B). The lawyer was given leave by the President to use the German language (Rule 28 § 3).

The Chamber to be constituted included ex officio Mr F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 29 October 1996 the President decided that in the interests of the proper administration of justice this case and the case of Szücs v. Austria should be heard by the same Chamber (Rule 21 § 7). On the same day, in the presence of the Registrar, he drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr A. Spielmann, Mr N. Valticos, Mrs E. Palm, Mr L. Wildhaber and Mr B. Repik (Article 43 in fine of the Convention and Rule 21 § 5).

As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 § 1 and 40). Pursuant to the order made in consequence, the Registrar received the Government’s and the applicant’s memorials on 2 April 1997. On 24 January 1997 the Commission had produced various documents relating to the proceedings before it, as requested by the Registrar on the President’s instructions.

In accordance with the President’s decision, the hearing in this case and in the Szücs case took place in public in the Human Rights Building, Strasbourg, on 25 June 1997. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Mr F. Cede, Ambassador, Federal Ministry of Foreign Affairs, Agent, Mrs I. Gartner, public prosecutor, Department of Criminal Affairs and Pardons, Federal Ministry of Justice, Mrs I. Siess, Constitutional Service, Federal Chancellery, Advisers; (b) for the Commission Mr A. Weitzel, Delegate; (c) for the applicant Mr G. Bürstmayr, of the Munich Bar, Counsel; (d) for Mr Szücs Mr T. Schreiner, of the Eisenstadt Bar, Counsel. The Court heard addresses by Mr Weitzel, Mr Bürstmayr, Mr Schreiner, Mr Cede and Mrs Gartner.

AS TO THE FACTS

I. circumstances of the case

Mr Johannes Werner, an Austrian national born in 1963, lives in Vienna.

A. Detention pending trial

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.

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.

On 8 July 1991 Mr and Mrs Hauser were released, and on 19 July the applicant was released.

B. Discontinuance of the proceedings

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.

C. The claim for compensation for detention

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.

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.

The applicant and Mr and Mrs Hauser sought compensation from the State for the pecuniary damage sustained on account of their detention.

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.

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.

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.

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.