ISSA-CHURCHILL proti Rakousku



AS TO THE ADMISSIBILITY OF

Application No. 23398/94

by Tony ISSA-CHURCHILL

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 May 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 January 1994

by Tony ISSA-CHURCHILL against Austria and registered on

4 February 1994 under file No. 23398/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, born in 1941, is an Austrian national residing in

the United States of America. In the proceedings before the Commission

he is represented by Mr. H. Rabitsch, a lawyer practising in Vienna.

On 9 July 1986 the Vienna Regional Criminal Court (Landesgericht

für Strafsachen), in the course of preliminary investigations against

the applicant, issued a warrant for arrest of a fugitive (Steckbrief).

The Regional Court found that the applicant was under strong suspicion

of having committed misappropriation (Veruntreuung). He had allegedly

taken several works of art on commission but had, after selling them,

not transferred the due price to the seller.

On 14 February 1989 the applicant was arrested in Paris upon the

request of the Austrian authorities.

On 16 February 1989 the Vienna Regional Criminal Court issued a

warrant of arrest (Haftbefehl) against the applicant on the strong

suspicion of having committed misappropriation. It found that he had

gone abroad and had apparently tried to evade the criminal proceedings

pending against him. Thus, there was also a danger of his absconding.

Subsequently, the Austrian authorities filed a request to extradite the

applicant.

On 30 March 1989 the applicant was released on bail from

detention with a view to his extradition.

On 21 June 1989 the Paris Court of Appeal (cour d'appel)

dismissed the Austrian authorities' request to extradite the applicant.

The Court referred in particular to several documents presented by the

defence and relating to the contracts between the applicant and the

sellers of the works of art at issue. It found that the applicant did

not have a sales order within the meaning of the relevant provision of

the French Criminal Code, as it did not appear that he was obliged to

sell the works of art at a fixed price or a minimum price. Thus, the

charges against him constituted a dispute of a merely civil or

commercial nature. In these and the subsequent proceedings the

applicant was represented by counsel.

On 15 February 1993 the investigating judge at the Vienna

Regional Criminal Court dismissed the applicant's request of

8 January 1993 to set aside the warrant for arrest of a fugitive of

1986 and the arrest warrant of 1989. The investigating judge noted that

such warrants of arrest had to be set aside, if the reasons for issuing

them were no longer valid. However, a strong suspicion of having

committed misappropriation still subsisted against the applicant.

Moreover, his whereabouts were unknown since his release from detention

on 30 March 1989. Thus, there was still a danger of his absconding.

Finally, the applicant was an Austrian national and the offence, of

which he was suspected, had been committed in Austria. Therefore

Austrian law applied exclusively as regards the assessment of the

offence as well as regards the question of issuing or setting aside an

arrest warrant.

On 1 June 1993 the Vienna Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal (Beschwerde). It noted that the

applicant had referred to the decision of the Paris Court of Appeal and

thereby relied on S. 65 of the Austrian Criminal Code (Strafgesetz-

buch), which provides that offences committed abroad can only be tried

in Austria, if they are also punishable under the law of the State

where they were committed. However, as the offence at issue had been

committed in Austria, Austrian jurisdiction applied in accordance with

S. 62 of the Criminal Code. There were no reasons to quash the warrant

for arrest of a fugitive and the arrest warrant.

On 21 July 1993 the Supreme Court (Oberster Gerichtshof) rejected

the applicant's complaint under the Fundamental Rights Complaints Act

(Grundrechtsbeschwerde-Gesetz) as being inadmissible. It noted that the

applicant had requested it to render a declaratory decision that the

refusal by the Vienna Court of Appeal to set aside the warrants of

arrest against him violated his right to liberty. However, the

Fundamental Rights Complaints Act only applied where a court decision

had caused the applicant's arrest or detention. The contested decision

had been taken after his release from detention with a view to his

extradition and did, therefore, not meet this requirement.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the Austrian courts' refused to set aside the warrant for arrest of a

fugitive and the arrest warrant against him. He submits in particular

that the decision by the Paris Court of Appeal should be binding for

the Austrian courts.

THE LAW

The applicant complains that the decisions of the Austrian courts

refusing to set aside the warrant for arrest of a fugitive and the

arrest warrant against him, violated Article 6 (Art. 6) of the

Convention, which, so far as relevant, reads as follows:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ... ."

The Commission considers that the decisions complained of, while

relating to criminal proceedings against the applicant, concerned

exclusively the question whether the requirements for upholding the

warrant for arrest of a fugitive and the arrest warrant, i.e. a strong

suspicion of the offence at issue and a danger of his absconding, were

still met. Although the decisions, thus, implied a finding as to

whether there was a certain degree of suspicion against the applicant,

they did not involve a finding of guilt (see mutatis mutandis, No.

11669/85, Dec. 7.12.87, D.R. 54 p. 95). The Commission finds that the

contested decisions against the applicant did not constitute the

determination of a criminal charge within the meaning or Article 6

(Art. 6) of the Convention. This provision is consequently not

applicable.

It follows that the application is incompatible ratione materiae

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)