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You are here: BAILII >> Databases >> European Court of Human Rights >> SEKANINA v. AUSTRIA - 13126/87 [1993] ECHR 37 (25 August 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/37.html Cite as: 17 EHRR 221, [1993] ECHR 37, (1994) 17 EHRR 221

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In the case of Sekanina v. Austria*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr N. Valticos,

Mr R. Pekkanen,

Mr A.B. Baka,

Mr J. Makarczyk,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 26 February and 25 June 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 21/1992/366/440. The first number is the case's

position on the list of cases referred to the Court in the relevant

year (second number). The last two numbers indicate the case's

position on the list of cases referred to the Court since its creation

and on the list of the corresponding originating applications to the

Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 10 July 1992, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 13126/87) against the Republic of Austria lodged with

the Commission under Article 25 (art. 25) by an Austrian national,

Mr Karl Sekanina, on 21 April 1987.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request 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 para. 2 (art. 6-2).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated his lawyer

(Rule 30), who was given leave by the President to use the German

language (Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mr F. Matscher, the elected judge of Austrian nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 26 September 1992, in the presence of

the Registrar, the President drew by lot the names of the other seven

members, namely Mr R. Bernhardt, Mr L.-E. Pettiti, Mr B. Walsh,

Mr N. Valticos, Mr R. Pekkanen, Mr A.B. Baka and Mr J. Makarczyk

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of

the Austrian Government ("the Government"), the Delegate of the

Commission and the applicant's lawyer on the organisation of the

proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in

consequence, the Registrar received the Government's memorial and the

applicant's claims under Article 50 (art. 50) of the Convention

on 16 December.

On 2 February 1993 the Commission produced various documents,

as requested by the Registrar on the President's instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 February 1993. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr F. Cede, Ambassador, Legal Adviser,

Ministry of Foreign Affairs, Agent,

Mr S. Rosenmayr, Federal Chancellery,

Mrs I. Gartner, Federal Ministry of Justice, Counsel;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) for the applicant

Mr W. Moringer, Rechtsanwalt, Counsel.

The Court heard addresses by the above-mentioned

representatives, and also their replies to its questions.

AS TO THE FACTS

I. The particular circumstances of the case

6. Mr Karl Sekanina is an Austrian national and lives in Vienna.

On 1 August 1985 he was arrested by the police on suspicion

of having murdered his wife. Mrs Sekanina had fallen from a window of

their matrimonial home, on the fifth floor of a building in Linz, on

4 July 1985.

A. The detention on remand

7. The day after his arrest he was questioned and remanded in

custody. He remained in custody until 30 July 1986, his detention

being extended on several occasions. The Linz Court of Appeal

(Oberlandesgericht) ordered the last such extension on 30 April 1986;

it ruled, pursuant to Article 193 paras. 3 and 4 of the Code of

Criminal Procedure, that the applicant could be kept in detention until

he had been in custody for a total of one year. In addition to the

murder of his wife, the applicant was accused of having threatened a

fellow detainee in connection with certain admissions relating to the

murder charge. The decisions of the Austrian courts were based on

various items of evidence and testimony.

B. The trial

8. On 30 July 1986 an assize court (Geschworenengericht) sitting

at the Linz Regional Court (Landesgericht) acquitted the applicant on

both the charges brought against him. The jury dismissed the first

charge by seven votes to one and the second charge unanimously.

The operative provisions and grounds of the judgment read as

follows:

"Pursuant to Article 259 para. 3 of the Code of Criminal

Procedure, Karl Leopold Sekanina is acquitted on the charges

brought against him, namely:

(1) that he did on 4 July 1985 intentionally kill his wife,

Maria Sekanina, by hitting her with a plastic bucket, as a

result of which she fell out of the open window of a fifth

floor flat and sustained fatal injuries on striking the

ground from a height of approximately 16.5 metres; and

(2) that he did at the beginning of August 1985, by making a

death threat, namely that 'he would catch his cell-mates

outside and kill them' if they 'gave him away', force

Egon Werger to remain silent about the statements made by

Karl Sekanina in his detention cell concerning the course of

events on 4 July 1985.

...

GROUNDS

The acquittal is founded on the jury's verdict."

9. With regard to the first charge, the record (Niederschrift)

of their deliberations stated as follows:

"There is no conclusive evidence on which to convict

Mr Sekanina of murder. According to the medical report by

Professor Kaiser, Mrs Sekanina could still have called her

husband a murderer. The testimony of certain witnesses

appears to us to be unreliable."

On the second charge, they noted that the three other fellow

detainees of the persons in question had denied hearing serious death

threats.

Consequently, the applicant was immediately released. The

prosecution did not appeal against the acquittal.

C. The application for the reimbursement of costs and

compensation for the detention

10. On the following day the applicant applied for a contribution

from the State to the costs necessarily incurred in his defence, in

accordance with Article 393a of the Code of Criminal Procedure (see

paragraph 15 below), and for compensation for the pecuniary damage

sustained on account of his being kept in detention.

On 4 November 1986 the public prosecutor's office expressed

the opinion that the costs sought were excessive and also opposed the

claim for compensation, on the ground that the conditions laid down by

section 2 (1) (b) of the 1969 Law on Compensation in Criminal Cases

(Strafrechtliches Entschädigungsgesetz - the "1969 Law" - see

paragraph 16 below) were not satisfied.

11. The Linz Regional Court gave two separate decisions.

On 12 December 1986 it awarded Mr Sekanina

22,546.50 schillings in respect of his necessary defence costs. His

appeal against the amount awarded was dismissed by the Linz Court of

Appeal on 15 January 1987.

12. On 10 December, on the other hand, the Regional Court had

refused to award the compensation sought. In its opinion,

"A claim to compensation under section 2(1)(b) of the

[1969] Law ... is conditional on the applicant's being

cleared of the suspicion of which he was the object in the

criminal 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.

Regard having been had to the prosecution evidence

considered as a whole, however, it was not possible to dispel

all the suspicions concerning the commission of the offence.

Serious grounds for suspecting Mr Sekanina still subsist, in

particular his numerous and repeated threats, the acts of

violence and aggressive behaviour which have come to light,

his evident satisfaction at his wife's death, the description

of events given to a cell-mate, the different versions of how

the accident happened, the fact that he was under severe

financial pressure, his unsuccessful efforts to obtain care

and custody of his two children and the consequent build-up

of aggressiveness, and his hopes of receiving payment under

a life-insurance policy taken out on his wife. In addition,

the jurors' voting shows that they decided to acquit him only

by giving him the benefit of the doubt."

13. On 25 February 1987 the Linz Court of Appeal upheld this

decision. It rejected the argument that section 2(1)(b) of the 1969

Law (see paragraph 16 below) was unconstitutional and in breach of

Article 6 para. 2 (art. 6-2) of the Convention in that it required, in

addition to an acquittal, the absence of all suspicion. The court held

that the presumption of innocence had to be respected in the

proceedings prior to the verdict, but did not confer on every detainee

the right to compensation in the event of an acquittal. The impugned

provision did not refer to guilt but to continuing suspicion. The

finding by a court that suspicions subsisted did not conflict with the

presumption of innocence. The Court of Appeal added:

"The appeal also fails on its merits. Contrary to what is

argued by the appellant, it cannot be inferred merely from

the voting of the jury ... that such a clear verdict meant

that suspicion had been removed. In order to establish

whether or not such suspicion subsists, it might be more

useful to refer to the record of the jury's deliberations.

The content of this record ... suggests rather that in the

jury's opinion all suspicion had not been removed. However,

as the court called upon to rule under the [1969] Law ... is

not bound, in its assessment of the position as regards

suspicion, by the verdict (of acquittal) at the trial, not

even the record of the jury's deliberations is of decisive

importance.

It can hardly be denied that following the police inquiries

and also after the judicial preliminary investigation there

were strong grounds for suspecting the appellant. Indeed,

the Linz Court of Appeal decided on 30 April 1986 ... that

Sekanina could be kept in detention on remand for up to one

year, thereby confirming the strength of the suspicion. In

the appealed decision, the finding by the court below that

suspicion subsisted was properly founded in particular on the

numerous repeated threats made by Mr Sekanina, his acts of

violence, his evident satisfaction at his wife's death, the

description of the events given to a cell-mate, the different

versions of how the accident happened, the severe financial

pressure, his unsuccessful attempts to obtain care and

custody of his two children, and his hopes of receiving

payment under a life-insurance policy taken out on his wife.

With respect to the different versions of the accident

related by the appellant to third parties, the Court of

Appeal refers in particular to the evidence given at the

trial of 28 to 30 July 1986 by the witnesses Gundula Sekanina

(pp. 45, 50 and 51 of the transcript of the trial) and

Johanna and Kurt Schöllnberger (pp. 105, 106, 117 and 119 of

the transcript). The appellant told his fellow employee

Siegfried Wurzinger that he had been in another room at the

time of the fall (Wurzinger, pp. 126, 127), whereas

Brigitte Grasböck noticed during the fall that the

claimant - wearing a light-coloured vest - was already at the

window, the entire upper part of his body being visible. He

had been holding a bucket out of the window with outstretched

arms and pouring water; in addition when he came down to his

wife he had, she thought, been wearing a blue vest (Grasböck,

pp. 65 and 66 of the transcript). During his interrogation

(which was taken down in writing) by the Linz Federal Police

on 2 August 1985 (p. 214, volume 1), the appellant placed on

record that shortly before the fall his wife had quarrelled

with him. According to the evidence of the witness Egon

Werger, the appellant had told him that 'during the quarrel

he' - Sekanina - '[had run] towards his wife in a rage'

(pp. 166 and 167 of the transcript). The appellant was

described by several witnesses as quick-tempered and violent

(pp. 44 and 82 of the transcript). He is said to have made

death threats against his wife several times, the last

occasion being about a week before her death (pp. 113 and 572

of volume 1, p. 216 of volume 2, and pp. 58, 75, 76, 102,

115, 142 and 143 of the transcript of the trial). Finally,

it may also be noted that on 3 July 1985, the day before his

wife's death, the appellant pressed his tailor for a dark

jacket he had ordered in 1983, as he now needed it."

The Court of Appeal concluded:

"Having had regard to all these circumstances, the majority

of which were not disproved at the trial, the jury took the

view that the suspicion was not sufficient to reach a guilty

verdict; there was, however, no question of that suspicion's

being dispelled."

II. The applicable domestic law

A. Acquittal

14. Under Article 259 of the Code of Criminal Procedure,

"The accused shall be acquitted by judgment of the court:

1. ...

2. ...

3. where the court finds that the act giving rise to the

prosecution is not an offence under the law or that the

alleged offence was not made out or that it has not been

established that the accused committed the act of which he is

accused or that circumstances exist which deprive the act in

question of its criminal character or that the continuation

of the prosecution is ruled out on grounds other than those

set out in paragraphs 1 and 2."

B. Reimbursement of costs

15. According to Article 393a of the same code:

"(1) Where the prosecution is not brought solely on the

basis of a private action seeking conviction or a private

action for damages (Article 48), if an accused is acquitted

..., the federal authorities shall, on an application to this

effect, make a contribution to the costs of the defence. The

contribution shall cover the expenses necessarily and

genuinely incurred by the accused and in addition, except in

the case provided for in Article 41 para. 2, a flat-rate

contribution to the costs of his defence lawyer ...

(2) ...

(3) A claim for compensation shall not be allowed where

the accused has deliberately caused the suspicion which gave

rise to the criminal proceedings or where the proceedings

have come to an end solely because the accused carried out

the act in question in a state in which he was not

responsible for his actions or because the authorisation for

the prosecution was withdrawn during the trial."

C. Compensation in respect of detention on remand

16. Entitlement to compensation for detention on remand during

criminal proceedings in which the person concerned is acquitted is

governed by section 2(1)(b) of the 1969 Law, which provides as follows:

"(1) A right to compensation arises:

(a) ...

(b) where the injured party has been remanded in custody

or placed in detention by a domestic court on suspicion of

having committed an offence which is 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 is dispelled or

prosecution is excluded on other grounds, in so far as these

grounds existed when he was arrested;

..."

PROCEEDINGS BEFORE THE COMMISSION

17. Mr Sekanina applied to the Commission on 21 April 1987. He

alleged that there had been a violation of the principle of presumption

of innocence guaranteed by Article 6 para. 2 (art. 6-2). When

dismissing his claim for compensation for wrongful detention, the

Austrian courts had considered that, despite his acquittal, he was

still the object of suspicion.

18. On 3 September 1991 the Commission declared the application

(no. 13126/87) admissible. In its report of 20 May 1992 (made under

Article 31) (art. 31), it expressed the opinion that there had been a

violation of Article 6 para. 2 (art. 6-2) (by eighteen votes to one).

The full text of the Commission's opinion and of the dissenting opinion

contained in the report is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 266-A of Series

A of the Publications of the Court), but a copy of the Commission's

report is available from the registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 2 (art. 6-2)

19. According to the applicant, by refusing to award compensation

in respect of his detention on remand, the Austrian courts had

disregarded the presumption of innocence laid down in Article 6 para. 2

(art. 6-2), which is worded as follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Government contested this view; the Commission accepted

it.

A. Applicability of Article 6 para. 2 (art. 6-2)

20. The Government argued primarily that the above-mentioned

provision was not applicable. The applicant's claim for compensation

had been made after the criminal proceedings had been definitively

concluded by a judgment on the merits; this had not been the situation

in the cases which had previously come before the Court on this issue.

Mr Sekanina had been acquitted and had no longer had the status of a

person "charged with a criminal offence" within the meaning of

Article 6 para. 2 (art. 6-2). In addition, the decision relating to

the claim in question had not constituted a consequence or a necessary

concomitant of the acquittal because it had been taken in separate

proceedings, instituted before a different authority, namely the Linz

Regional Court.

21. The Commission, on the other hand, referring to its opinion

in a previous case (decision of 6 October 1982, application

no. 9295/81, X v. Austria, Decisions and Reports 30, p. 227),

considered that the presumption of innocence was obligatory not only

for criminal courts ruling on the merits of a charge, but also for

other authorities.

22. The Court's task is not to express a view on such a general

issue; it is confined to determining whether the approach followed in

the applicant's case affected the right which Article 6 para. 2

(art. 6-2) guaranteed to him.

Admittedly the Linz Regional Court gave its decision rejecting

the claim on 10 December 1986, several months after the judgment

acquitting the applicant on 30 July 1986 (see paragraphs 8 and 12

above). In the Court's opinion, Austrian legislation and practice

nevertheless link the two questions - the criminal responsibility of

the accused and the right to compensation - to such a degree that the

decision on the latter issue can be regarded as a consequence and, to

some extent, the concomitant of the decision on the former (see,

mutatis mutandis, the Englert v. Germany judgment of 25 August 1987,

Series A no. 123-B, p. 54, para. 35). Moreover, as is the case under

the legislation of several other European countries in which a right

to compensation in respect of detention on remand is recognised in the

event of acquittal, the criminal court which tries the case on its

merits, in this instance the Linz Landesgericht, albeit composed

differently, in principle has jurisdiction in the matter (see

paragraphs 8, 11 and 12 above).

Finally, the Austrian courts relied heavily on the evidence

from the Assize Court's case file in order to justify their decision

rejecting the applicant's claims (see paragraphs 12-13 above), thus

demonstrating that, in their opinion, there was indeed a link between

the two sets of proceedings.

The applicant can therefore invoke Article 6 para. 2

(art. 6-2) in relation to the impugned decisions.

B. Compliance with Article 6 para. 2 (art. 6-2)

23. Mr Sekanina complained that the Austrian courts had dismissed

his claim for compensation on the ground that his acquittal had not

dispelled the suspicion of which he had been the object.

24. The Government prayed in aid the Court's case-law in this area

(see in particular the following judgments: Adolf v. Austria,

26 March 1982, Series A no. 49, Minelli v. Switzerland, 25 March 1983,

Series A no. 62, and Lutz, Englert and Nölkenbockhoff v. Germany,

25 August 1987, Series A no. 123). In their contention, these cases

showed that statements are consistent with the presumption of innocence

if they refer to the continued existence of suspicion, but not if they

reflect the opinion that the person concerned is guilty. The grounds

for the contested decisions were, in the Government's view, to be

classified in the first category rather than the second.

25. The Court stresses in the first place, like the Commission and

the Government, that Article 6 para. 2 (art. 6-2) does not guarantee

a person "charged with a criminal offence" a right to compensation for

detention on remand imposed in conformity with the requirements of

Article 5 (art. 5) (see the Englert judgment, cited above, Series A

no. 123-B, p. 54, para. 36) and that the applicant did not dispute the

lawfulness of his detention.

It observes that there remains great diversity between the

laws in European countries providing for compensation in the event of

the acquittal of a person held on remand. In the majority of them the

award of any compensation is made conditional on the claimant's conduct

prior to or during the trial or is left to the discretion of the

courts.

In addition, despite certain similarities, the situation in

the present case is not comparable to that governed by Article 3 of

Protocol No. 7 (P7-3), which applies solely to a person who has

suffered punishment as a result of a conviction stemming from a

miscarriage of justice.

26. It is true that according to the Lutz, Englert and

Nölkenbockhoff v. Germany judgments, cited by the Government (see

paragraph 24 above), "a decision whereby compensation for detention on

remand ... [is] refused following termination of the proceedings may

raise an issue under Article 6 para. 2 (art. 6-2) if supporting

reasoning which cannot be dissociated from the operative provisions ...

amounts in substance to a determination of the accused's guilt without

his having previously been proved guilty according to law ..." (see the

above-mentioned Englert and Nölkenbockhoff judgments, pp. 54-55,

para. 37, and p. 79, para. 37, and also the Lutz judgment, cited above,

p. 25, para. 60). Mr Sekanina complained, inter alia, of the reasons

given in the contested decisions.

27. Nevertheless, the Court is here confronted with a different

situation from those which it has previously encountered.

In the first place the Lutz case did not concern the possible

award of compensation for detention on remand. Only the Englert and

Nölkenbockhoff cases dealt with this issue.

Mr Englert had been sentenced at first instance to fifteen

months' imprisonment for extortion with menaces, but the Federal Court

of Justice set the judgment aside and remitted the case to the Regional

Court for retrial. The latter court discontinued the proceedings on

the ground that the sentence that Mr Englert could expect was

negligible in comparison with one he was serving at the time in respect

of another conviction. It ordered that he should bear his own

necessary costs and expenses and refused to award him compensation for

the detention on remand (which had lasted nineteen months and two

weeks), because the circumstances rebutting the presumption of

innocence were so overwhelming that a conviction was clearly more

likely than an acquittal (see the above-mentioned Englert judgment,

pp. 44-47, paras. 11, 13-14 and 17).

Mr Nölkenbockhoff had been sentenced at first instance to

eight years' imprisonment for breach of trust, criminal bankruptcy and

fraud, but he died while his appeal on points of law was still pending

before the Federal Court of Justice. His widow sought an order that

the Treasury should bear the necessary costs and expenses and claimed

compensation for her husband's detention on remand (for over three

years), but the Essen Regional Court found against her. It considered

that it had been bound to reach such a decision when, "were it not for

this technical bar [on account of the accused's death], the defendant

would almost certainly have been convicted or his conviction almost

certainly have been upheld" (see the Nölkenbockhoff judgment cited

above, pp. 69-70, paras. 14-15 and 17).

While the Court considered that the terms used by the German

courts had been ambiguous and unsatisfactory, it took the view that

their decisions described "a state of suspicion" and did not amount to

a finding of guilt (see the Englert and Nölkenbockhoff judgments cited

above, p. 55, para. 39, and pp. 80-81, para. 39).

28. It may be seen from the foregoing that in the Englert and

Nölkenbockhoff cases the proceedings had been terminated before any

final decision on the merits. The applicants in those cases had been

convicted at first instance and had then appealed from the judgments

of the relevant courts, but their appeals were still under review when

the proceedings were discontinued.

That is not the position in this case. The Assize Court

sitting at the Linz Regional Court acquitted Mr Sekanina on

30 July 1986 by a judgment which became final (see paragraphs 8-9

above).

29. Notwithstanding this decision, on 10 December 1986 the Linz

Regional Court rejected the applicant's claim for compensation,

pursuant to section 2(1)(b) of the 1969 Law (see paragraphs 12 and

16 above). In its view, there remained strong indications of

Mr Sekanina's guilt capable of substantiating the suspicions concerning

him; it listed them relying on the Assize Court file. The evidence in

question could, in its opinion, still constitute an argument for the

applicant's guilt. The court inferred from the record of the jury's

deliberations that in acquitting the applicant they had given him the

benefit of the doubt (see paragraph 12 above).

The Linz Court of Appeal went further in the grounds of its

decision of 25 February 1987. It considered that section 2(1)(b) of

the 1969 Law, according to which compensation is confined to persons

that have been not only acquitted but also cleared of all suspicion,

was in conformity with the Austrian Constitution and Article 6

para. 2 (art. 6-2) of the Convention. In this respect it did not

regard itself as bound by the Assize Court's acquittal. On the other

hand, it referred to its own decision of 30 April 1986 authorising

detention on remand for a year (see paragraph 7 above); it saw this as

confirmation of the gravity of the suspicions concerning the applicant.

After having drawn up a comprehensive list of items of evidence against

Mr Sekanina, in its view not refuted during the trial, and after having

carefully examined the statements of various witnesses, it concluded:

"The jury took the view that the suspicion was not sufficient to reach

a guilty verdict; there was, however, no question of that suspicion's

being dispelled" (see paragraph 13 above).

30. Such affirmations - not corroborated by the judgment

acquitting the applicant or by the record of the jury's deliberations -

left open a doubt both as to the applicant's innocence and as to the

correctness of the Assize Court's verdict. Despite the fact that there

had been a final decision acquitting Mr Sekanina, the courts which had

to rule on the claim for compensation undertook an assessment of the

applicant's guilt on the basis of the contents of the Assize Court

file. The voicing of suspicions regarding an accused's innocence is

conceivable as long as the conclusion of criminal proceedings has not

resulted in a decision on the merits of the accusation. However, it

is no longer admissible to rely on such suspicions once an acquittal

has become final. Consequently, the reasoning of the Linz Regional

Court and the Linz Court of Appeal is incompatible with the presumption

of innocence.

31. Accordingly, there has been a violation of Article 6 para. 2

(art. 6-2).

II. APPLICATION OF ARTICLE 50 (art. 50)

32. Under Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict with

the obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Damage

33. Mr Sekanina claimed in the first place 663,102.35 schillings

for loss of earnings, 189,457.80 schillings for the loss of a

redundancy payment and 82,887 schillings for the reduction in his

pension rights, all these different heads of damage deriving from his

detention. At the hearing of 24 February 1993 his lawyer also referred

to the loss of other opportunities, which were said to have resulted

from the violation of Article 6 para. 2 (art. 6-2).

34. The Government denied that the applicant had any right to

compensation in respect of the detention on remand because no such

obligation could be inferred from the case-law of the Convention

institutions (see paragraph 25 above). In any event, the applicant had

not produced any evidence in support of his claim.

35. The violation found by the Court does not concern the

lawfulness of the detention on remand; there is therefore no direct

causal connection between it and the damage alleged, so that the

applicant's claims must be dismissed.

B. Costs and expenses

36. The applicant sought a total of 121,908.80 schillings in

respect of his costs and expenses before the Austrian courts and the

Convention institutions.

The Government contested certain items concerning the domestic

proceedings and criticised the scales applied to the European

proceedings.

37. Making an assessment on an equitable basis, the Court awards

the applicant 110,000 schillings.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that Article 6 para. 2 (art. 6-2) is applicable in this

case and that there has been a violation of that provision;

2. Holds that the respondent State is to pay to the applicant,

within three months, 110,000 (one hundred and ten thousand)

schillings for costs and expenses;

3. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 25 August 1993.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the concurring

opinion of Mr Matscher is annexed to this judgment.

Initialled: R. R.

Initialled: M.-A. E.

CONCURRING OPINION OF JUDGE MATSCHER

(Translation)

I agree with the outcome - a finding that the contested

decisions of the Linz Regional Court and Appeal Court disregarded the

presumption of innocence.

Nevertheless I should like to stress that the conditions for

a verdict of acquittal and the conditions which must be satisfied for

the grant of compensation within the meaning of section 2(1)(b) of the

1969 Law are not identical. In particular, an acquittal may cover a

wide variety of situations. For example, the deed in question may not

constitute a criminal offence under the criminal law, or the accused

may have committed an act which was in itself punishable but while he

was in a state in which he was not responsible for his actions, or the

court may be convinced of the accused's innocence, or again there may

be insufficient evidence to convict (see Article 259 para. 3 of the

Code of Criminal Procedure).

In the present case it is clear that the acquittal was based

on the last of the above-mentioned possibilities. Accordingly, it

would seem to me to be difficult to affirm (see paragraph 30 of the

judgment) that the finding in a subsequent decision relating to a

compensation procedure that suspicion subsists leaves open a doubt as

to the correctness of the Assize Court's decision.

I have nevertheless reached the conclusion that there was a

violation of the Convention and this is on account of some of the

reasons given in the contested decisions, which went beyond what is

required under section 2(1)(b) of the 1969 Law as grounds for rejecting

a claim for compensation. I do, however, accept that - given the

wording of the provision in question - the statement of such grounds

compels the court to engage in a balancing act between a lack of

adequate reasons and the risk of offending against the presumption of

innocence.

It would therefore be desirable to amend the text of

section 2(1)(b) of the 1969 Law.