European Court of Human Rights

There appeared before the Court:

- for the Commission:

       Mr. J. E. S. FAWCETT,                                              Principal Delegate,

       Mr. F. ERMACORA and Mr. G. SPERDUTI,                           Delegates;

- for the Government:

       Mr. E. NETTEL, Envoy Extraordinary and Minister Plenipotentiary,

Agent;

       Mr. W. PAHR, Head of the International Department of

                            the Constitutional Service of the Federal Chancellery;

       Mr. C. MAYERHOFER, Ministerialsekretär

                            at the Federal Ministry of Justice;

       Mr. G. SAILER, Oberprokuratsrat

                            at the Finanzprokuratur,                                           Counsel.

The Court heard the addresses and submissions of these representatives as well as their replies to questions put by Judges. In the course of these proceedings the Government produced several documents.

The hearings were declared provisionally closed on 27 May 1972.

AS TO THE FACTS

On 10 September 1971, the Minister replied that in view of his Ministry’s competence under the Constitution it was not in a position to deal with the matter.

The applicant has set out more particulars of his claims in letters which he and his wife sent to the Commission on 24 November 1971, 10 December 1971, 21 January 1972 and 8 February 1972. He alleges that he has sustained considerable material damage resulting, inter alia, from interference with the conduct of his business and from loss of property and rents in Austria and for this he claims some 100 million Schillings. Furthermore, he states that he is entitled to compensation, in an amount which he leaves the Court to assess: for personal injury, for damage to his reputation and "for detention".

AS TO THE LAW

I. ON THE ADMISSIBILITY OF THE APPLICANT’S CLAIM

In the first place, the Court notes that if it accepted this submission it would follow that even after the new proceedings, which the Government considers to be necessary, the Court could not deal in its present composition with any question of the application of Article 50 (art. 50) since each new case requires, under Article 43 (art. 43), the setting up of a new Chamber.

It is clearly to be preferred, however, in the interests of the proper administration of justice, that consideration of the reparation of damage flowing from a violation of the Convention should be entrusted to the judicial body which has found the violation in question.

The practice adopted so far by the Court in this matter has been clearly inspired by a desire to take account as far as possible of the wishes of respondent States: they may be reluctant to argue the consequences of a violation the existence of which they dispute; and they may wish, in the event of a finding of a violation, to maintain the possibility of settling the issue of reparation directly with the injured party without the Court being further concerned.

It was therefore normal that the applicant, having no locus standi before the Court, should present his claims to the Commission. As the Court was duly seised of the Ringeisen case, the Commission acted within the scope of its functions in bringing Ringeisen’s claim to the notice of the Court and thus the Court is also duly called upon to ascertain whether it is necessary to apply Article 50 (art. 50).

II. AS TO THE FULFILMENT OF THE CONDITIONS FOR THE APPLICATION OF ARTICLE 50 (art. 50)

(1) since it was possible to make full reparation in internal law for the consequences of the violation of Article 5 § 3 (art. 5-3) and this was in fact done by the decision of the Linz Regional Court on 24 April 1968 to reckon the entire time spent in detention on remand as part of the prison sentence;

(2) since, even assuming that that decision did not make restitutio in integrum to Ringeisen and the violation of Article 5 § 3 (art. 5-3) had caused him other damage, he could exercise several remedies.

The consequence of the Government’s reasoning would be to deprive Article 5 § 3 (art. 5-3) of much of its effectiveness, at least in cases where the person detained on remand for more than a reasonable time is found guilty afterwards: in such cases it would suffice, in order to avoid the application of Article 50 (art. 50), that the time spent in detention on remand should be less than the term of the prison sentence pronounced later and should be deducted from it.

Furthermore, in the present case it appears that if Ringeisen’s detention on remand had ended at the time of the adjudication in bankruptcy, that is 14 May 1965, and if he had been arrested after judgment to serve what remained of his sentence, he would have stood a good chance of being released on probation for one-third of the prison term ordered, which would have reduced the duration of his deprivation of liberty to twenty-two months while his detention on remand lasted almost twenty-nine months.

The Court refers on this point to paragraphs 15 and 16 of its judgment of 10 March 1972 on the question of the application of Article 50 (art. 50) in the De Wilde, Ooms and Versyp cases. It is true that the Government has declared that it is not seeking to rely on Article 26 (art. 26) nor insisting on the exhaustion of domestic remedies prior to any consideration by the Court of a request for just satisfaction. Partial exercise of domestic remedies would, however, serve no purpose and would lead to the same result of preventing the Court from speedily affording reparation for the damage caused by the violation it found.

There can be no doubt that for the Court to be able to give application to Article 50 (art. 50), there should be a need to do so (French: "il y ait lieu"; or, in the English text, "if necessary"); but this necessity exists once a respondent government refuses the applicant reparation to which he considers he is entitled. This is what happened in the present case.

The reason why the applicant wrote to the Minister of Justice rather than to any other authority is apparently because Section 4 of the Act of 18 August 1918 on compensation for detention on remand indicated this course for claims based upon that Act.

III. AS TO THE QUESTION OF AFFORDING JUST SATISFACTION

The Court does not overlook that Ringeisen was found guilty and sentenced to a term of imprisonment longer than the time he had spent in detention on remand, that his time in detention was reckoned in full to his advantage as part of the sentence, and that he was subject in detention to a regime less severe than that which the prison sentence would have entailed.

These circumstances go some way to compensate the damage of which he complains.

However, the applicant protested his innocence and certainly felt such excessive detention on remand to be a great injustice. The detention must have been all the more hard to bear in that it inevitably made it much more difficult for him to conclude a composition for the termination of his bankruptcy.

Assessing these various factors, the Court considers that Ringeisen should be afforded just satisfaction and fixes at twenty thousand German marks (20,000 DM) the overall sum to be paid to him in this regard.

The Court considers that it can leave this point to the discretion of the Austrian authorities. The Court notes in this regard that under the terms of Section 2 of the Act of 18 August 1918 referred to above "no attachment or seizure may be made against a right to compensation except to secure payment of maintenance as provided for by law" and that a similar provision appears in Section 4 of the Federal Act of 8 July 1969 on compensation for detention and conviction by the criminal courts. It would seem to be a matter of course that the same exemption from seizure must be allowed in the case of compensation due under a decision of the Court to a person whose detention on remand has been prolonged beyond the reasonable time laid down in Article 5 § 3 (art. 5-3) of the Convention.

FOR THESE REASONS, THE COURT

Unanimously affords to the applicant Michael Ringeisen compensation in the sum of twenty thousand German marks to be paid by the Republic of Austria.

Done in French and in English, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-second day of June, one thousand nine hundred and seventy-two.

Henri ROLIN

President

Marc-André EISSEN

Registrar

Judge Holmbäck and Judge Wold make the following joint declaration:

As to the jurisdiction of the Court in this case, we refer to our joint separate opinion annexed to the judgment of 10 March 1972 in the De Wilde, Ooms and Versyp cases, but feel obliged to defer to the opinion of the majority of the Court on this point.

Judge Holmbäck makes the following declaration:

In a separate opinion annexed to the Court’s judgment of 16 July 1971 in this case, I made it clear that in my opinion the Republic of Austria had not violated Article 5 § 3 (art. 5-3) of the Convention.

Since my opinion was overruled in that judgment, I feel bound to accept the finding of the majority of the Court and in these circumstances I agree with the amount of compensation awarded on the basis of a violation of Article 5 § 3 (art. 5-3).

Judge Verdross makes the following declaration (translation):

In my separate opinion annexed to the Ringeisen judgment of 16 July 1971, I stated the reasons which prevented me from wholly agreeing with the way in which the Chamber calculated the unreasonable time of detention on remand.

Similarly, in my separate opinion annexed to the De Wilde, Ooms and Versyp judgment of 10 March 1972, I explained why I could not subscribe to the construction put by the plenary Court on Article 50 (art. 50) of the Convention.

Nevertheless, since under Rule 48 of our Rules of Court a Chamber may not, of its own will, decline to follow an interpretation of the Convention given by the plenary Court or a Chamber, I am obliged to take the two judgments referred to above as a basis for the present judgment.

Judge Zekia makes the following declaration:

Notwithstanding my dissenting opinion as to any breach of Article 5 § 3 (art. 5-3) of the Convention (annexed to the judgment of 16 July 1971), I feel bound to accept the finding of the Court that there was a contravention under the aforesaid Article (art. 5-3) of the Convention in that the unreasonable period of detention lasted more than twenty-two months, and in the circumstances I agree that the amount awarded is an appropriate one.

H. R.

M.-A. E.