In the case of Windisch 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
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr F. Matscher,
Mr R. Macdonald,
Mr R. Bernhardt,
Mr J. De Meyer,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Having deliberated in private on 25 June 1993,
Delivers the following judgment, which was adopted on that
Notes by the Registrar
* The case is numbered 25/1989/185/245. 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
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 12 October 1989, 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. 12489/86) against the Republic of Austria lodged with
the Commission under Article 25 (art. 25) by an Austrian citizen,
Mr Harald Windisch, on 2 October 1986.
2. By judgment of 27 September 1990 ("the principal judgment"),
the Court held that the applicant's conviction for burglary, which
had been based to a large extent on the evidence of two anonymous
witnesses, had given rise to a violation of paragraph 3 (d) of
Article 6 of the Convention, taken together with paragraph 1
(art. 6-3-d, art. 6-1) Series A no. 186, paras. 22-32 of the reasons
and point 1 of the operative provisions, pp. 9-11 and 13).
Furthermore, the Court awarded to the applicant under Article 50
(art. 50) a certain amount in respect of costs and expenses incurred
until then (ibid., paras. 36-38 of the reasons and point 3 of the
operative provisions, pp. 12-14). The only outstanding matter to be
settled is the question of the application of Article 50 (art. 50) as
regards an award of damages.
As to the facts of the case, reference is made to paragraphs 8
to 18 of the principal judgment (ibid., pp. 6-8).
3. The applicant claimed 1,080,000 schillings for loss of earnings
and unjust imprisonment, on the ground that he would not have been
convicted had it not been for the statements of the two anonymous
In the principal judgment, the Court stated that it was unable
to accept the Government's plea as to the absence of a causal link
between the alleged prejudice and the violation found. However, it
considered that the question of the application of Article 50
(art. 50), as regards the award of damages, was not yet ready for
decision, since there was the possibility of the applicant's case being
reopened after the Attorney General had entered a plea of nullity in
the interest of the law (Nichtigkeitsbeschwerde zur Wahrung des
Gesetzes - Article 33 of the Code of Criminal Procedure) against the
judgment of 20 November 1985 (ibid., paras. 16 and 35, pp. 8 and 12).
It, therefore, reserved the matter and invited the Government and the
applicant to submit, within the coming three months, their written
comments thereon and, in particular, to notify it of any agreement
reached between them (ibid., para. 35 of the reasons and point 2 of the
operative provisions, pp. 12 and 13).
4. In a letter of 5 October 1990, the Agent of the Government
informed the Registrar that the Supreme Court had quashed the
above-mentioned judgment on 23 August 1990 and had referred the case
back to the Innsbruck Regional Court for retrial and decision.
The applicant and the Government filed observations on
2 January 1991. On 14 January the Government requested an adjournment
pending the outcome of the proceedings before the Austrian courts.
The Commission's Delegate and the applicant's counsel raised
no objection. Accordingly, the President of the Court agreed to stay
proceedings until judgment had been given by the Innsbruck Regional
5. In a letter of 19 July 1991 the Agent of the Government
informed the Registrar that by judgment of 25 June the Innsbruck
Regional Court had convicted the applicant of burglary and attempted
intimidation and sentenced him to three years' imprisonment after
hearing in public the two witnesses concerned (see paragraph 2 above).
Since this judgment was not final in view of the appeals entered by the
applicant and the public prosecutor, the Agent asked the Court to
maintain the suspension of the proceedings concerning Article 50
(art. 50). Neither the Commission's Delegate nor the applicant's
counsel objected to the request, which was allowed by the President of
the Court on 7 October.
6. On 27 April 1993 the Agent of the Government transmitted to the
Registrar, in response to the latter's requests for information made
on 24 June 1992 and 24 March 1993, copies of (1) the judgment of
20 February 1992 whereby the Supreme Court rejected the applicant's
plea of nullity and (2) the judgment of 25 March 1992 whereby the
Innsbruck Court of Appeal rejected his appeal against sentence.
7. In accordance with an order made by the President of the Court,
the Registrar received, on 28 May and 14 June 1993 respectively, the
applicant's and the Government's supplementary observations. The
Commission's Delegate replied on 22 June 1993.
AS TO THE LAW
8. Article 50 (art. 50) of the Convention provides:
"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."
At this stage of the proceedings the applicant is no longer
claiming the reimbursement of costs and expenses.
9. In observations filed on 5 March 1990 - that is to say prior
to the Court's principal judgment - Mr Windisch's counsel had stated
that her client was seeking financial compensation both for pecuniary
and non-pecuniary damage deriving from the injustice suffered as a
consequence of the long prison sentence and for the accompanying loss
of earnings. She assessed the appropriate compensation at
1,080,000 Austrian schillings on the basis of the sums awarded
customarily in Austria in such cases and by the Court in the
Unterpertinger v. Austria judgment of 24 November 1986 (Series A
no. 110, p. 16, para. 35).
10. For its part, the Government submitted at the hearing of
23 April 1990 that the applicant's claims should be rejected for lack
of causal link between the alleged damage and any violation that the
Court might find.
However, the Court considered in its principal judgment that
"the applicant's detention after his conviction was the direct
consequence of the establishment of his guilt, which was effected in
a manner that did not comply with some of the requirements of Article 6
(art. 6)" (Series A no. 186, p. 12, para. 35).
11. The proceedings subsequently brought in Austria (see
paragraphs 4-6 above) redressed the violation found by the Court on
27 September 1990 (see, mutatis mutandis, the Piersack v. Belgium
judgment of 26 October 1984, Series A no. 85, pp. 15-16, para. 11).
Following the annulment by the Supreme Court on 23 August 1990 of the
judgment delivered by the Innsbruck Regional Court on 20 November 1985,
the case was referred back to the latter court, which retried the
applicant. On 25 June 1991 the Regional Court convicted him again and
imposed a sentence identical to that originally passed, but on this
occasion the trial was attended by all the guarantees laid down by
the Convention (ibid., p. 16, para. 11); in particular, the two
anonymous witnesses who had not been heard in public during the first
trial gave evidence at the retrial (see paragraph 5 above). This
judgment has now become final (see paragraph 6 above).
12. In her observations of 28 May 1993 (see paragraph 7 above),
counsel for the applicant complained that, because of the conduct of
the Austrian authorities, and especially the Attorney General's refusal
to file a plea of nullity before the lodging of the application to the
Commission, the proceedings against Mr Windisch had been excessively
long. If the applicant's claims for compensation were rejected, the
result of his application to the Commission would turn out to his
disadvantage only. In fact, notwithstanding the finding of a violation
by the Court, the only result for the applicant would be, following the
reopening of domestic proceedings, an excessively long procedure and
the persistence of an undecided situation for many years.
13. The Government replied on 14 June 1993 (see paragraph 7 above)
that the applicant could not claim compensation for the length of the
proceedings, since the violation found by the Court did not concern
this point. Furthermore, in view of the fact that the second set of
proceedings had the same outcome as the first, just satisfaction could
only be claimed for non-pecuniary damage and, in this respect, the
finding of a violation was sufficient.
The Delegate of the Commission agreed.
14. As regards the claim for pecuniary damage, the Court agrees
with the Government: the end-result of the fresh set of proceedings,
together with the fact that the term of imprisonment previously served
by the applicant was fully taken into account, have brought about a
situation as close to restitutio in integrum as was possible in the
nature of things (see the above-mentioned Piersack judgment, Series A
no. 85, pp. 15-16, para. 11).
15. Furthermore, the Court considers, like the Government, that the
compensation sought in respect of the length of the national
proceedings is not recoverable because the violation found in the
principal judgment did not concern this point.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Rejects the remainder of the claims for just satisfaction.
Done in English and in French, and notified in writing under
Rule 55 para. 2, second sub-paragraph, of the Rules of Court on
28 June 1993.
Signed: Rolv RYSSDAL
Signed: Marc-André EISSEN