AS TO THE ADMISSIBILITY OF
Application No. 18696/91
by Mezhar ABU SHAER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 14 June 1991 by
Mezhar ABU SHAER against Austria and registered on 20 August 1991 under
file No. 18696/91;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 30
October 1992 and the observations in reply submitted by the
applicant on 18 December 1992;
- the Government's further observations of 15 July 1993 and the
applicant's further submissions of 3 August 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Austrian citizen born in 1942, is a businessman
residing at Salzburg in Austria. Before the Commission he is
represented by Mr. H. Esterbauer, a lawyer practising in Salzburg.
A. Particular circumstances of the case
I.
On 10 December 1990 Mr. Ri., a student, filed a complaint with
the Vienna Federal Police Authority (Bundespolizeidirektion) alleging
that somebody had scratched the side of his mother's car with a tool
and punctured a tyre.
On 18 December 1990, after midnight, the same car was found
burning in a street in Vienna. In the morning, Ms. Re., a friend of
Ri., told the Vienna police that she believed that the applicant had
set fire to the car. She stated that she had once been employed by the
applicant. When she had wanted to quit, he had proposed to marry her.
Ms. Re. explained that the applicant then started threatening Ri.'s
family and herself by telephone.
On the same day, Mrs Ri., Mr. Ri.'s mother., rang up a lawyer,
Mr. W., in Vienna, pointing out that her car had been set on fire and
complaining about the "telephone terror" by the applicant for which
reason they now had a confidential number. She also stated that the
applicant had probably not personally set fire to her car, as she had
been telephoning him in his Salzburg apartment immediately after the
fire.
On 21 December 1990 the Duty Judge (Journalrichter) of the Vienna
Regional Court (Landesgericht) issued an "oral warrant of arrest"
(mündlicher Haftbefehl) against the applicant on the ground that he had
uttered dangerous threats (gefährliche Drohung) and on account of a
danger of committing a criminal offence (Tatbegehungsgefahr). A
written warrant of arrest of the same date stated that the applicant
was suspected of having uttered dangerous threats against Ms. Re. by
telephone, of having damaged Mrs Ri.'s car tyres, and of having set
fire to that car. The warrant of arrest further stated that there was
a danger of committing a criminal offence in view of numerous "attacks"
(Angriffshandlungen).
On 24 December 1990 the applicant was arrested in Salzburg and
remanded in custody. When questioned, he stated that he would only
reply to the charges before the competent court. The applicant signed
a document at the police station according to which he had been
informed of the reasons of his arrest.
On 25 December 1990 the applicant was taken to the Salzburg
Regional Court's Detention Centre (Landesgerichtliches Gefangenenhaus).
On 26 December 1990 the applicant was heard by the Duty Judge at
the Salzburg Regional Court. The applicant denied having committed the
offences of which he was charged. The Duty Judge telephoned a Duty
Judge at the Vienna Regional Court and informed the latter about the
case and of the applicant's submissions. Thereupon, the Vienna Duty
Judge decided, upon the request of the Vienna Public Prosecutor's
Office, to institute preliminary investigations against the applicant
on account of damage to objects (Sachbeschädigung) and compulsion
(Nötigung) and to order his detention on remand.
The applicant, informed of this telephone conversation,
declared: "I am raising a complaint against both decisions" ("erhebe
ich Beschwerde gegen beide Beschlüsse").
On the same day, 26 December, 1990, the Vienna Regional Court
issued a decision confirming the applicant's detention on remand. The
decision stated that the applicant was suspected of having uttered
dangerous threats to both families Ri. and Re. and of having damaged
Mrs. Ri.'s car. The decision further stated that there was a danger
that the applicant would carry out the threats.
As of 27 December 1990 the applicant was represented by a lawyer.
On 3 January 1991, the applicant was transferred to the Vienna
Regional Court's Detention Centre. The investigating judge in charge
of the case was on leave until Thursday, 10 January 1991.
On Monday, 14 January 1991 the applicant was heard by the
investigating judge at the Vienna Regional Court. He explained his
relationship with Ms. Re., alleged to be of an intimate nature, that
she had been in financial need, and that he had often helped her in
this respect. The applicant denied having uttered threats to Mr. Ri.
on the telephone. The applicant then stated: "I withdraw my complaint
against the decisions by which preliminary proceedings were instituted
and detention on remand ordered" ("ich ziehe meine Beschwerde gegen die
Beschlüsse auf Einleitung der Following a further hearing on 16 January 1991 and after having taken a vow and deposited his handgun and firearms licence the applicant was released from detention. On 8 March 1991 the applicant was informed that the criminal proceedings instituted against him had been closed. II. The applicant subsequently claimed compensation in respect of pecuniary disadvantages during his detention on remand on the ground that the suspicions levelled against him had been dissipated. His claim was rejected by the Review Chamber (Ratskammer) of the Vienna Regional Court on 3 September 1991 on the ground that the suspicion against the applicant had not been dissipated. The Chamber noted inter alia that the applicant had already threatened Ms. Re. in October 1990. The applicant's appeal against this decision was dismissed by the Vienna Court of Appeal on 17 March 1992. III. The applicant also claimed compensation for unlawful detention. This request was dismissed on 17 March 1992 by the Vienna Court of Appeal. The Court noted that the police had undertaken considerable investigations in the case and even heard witnesses. Moreover, the report to the police and the investigations warranted the conclusion that there also existed the danger of the applicant committing further offences. The Court further noted that the applicant had in due time (fristgerecht) been brought before the competent judge at the Salzburg Regional Court, after the competent Vienna Duty Judge had ordered regular detention on remand and instituted preliminary investigations. As a result, no unlawful act could be established (kann ein gesetzwidriger Vorgang nicht erkannt werden). The applicant's further appeal was dismissed by the Supreme Court (Oberster Gerichtshof) on 20 May 1992, the decision being served on the applicant on 12 June 1992. The Court noted that the applicant's arrest was based on S. 175 of the Code of Criminal Procedure and that his detention had been ordered pursuant to S. 180 of that Code (see below, Relevant domestic law). The Supreme Court considered that it had been rightly supposed that the applicant was likely to commit further offences, since according to the contents of the case-file, a strong suspicion prevailed that the applicant had uttered the dangerous threats in question and had ordered a third person to damage the car. The Court further confirmed the findings of the Vienna Court of Appeal and concluded that, although the applicant was only informed orally about the decision to remand him in custody, neither the imposition nor the continuation of the applicant's detention on remand were unlawful. B. Relevant domestic law According to S. 12 para. 1 of the Code of Criminal Procedure (Strafprozessordnung) the Review Chamber (Ratskammer) at the first instance court supervises all measures taken by the investigating judge during the preliminary investigations. S. 113 provides in particular that anybody affected by a decision of or a delay in the course of preliminary investigations ("durch eine Verfügung oder eine Verzögerung des Untersuchungsrichters") may file an application with the Review Chamber. According to S. 175 para. 1 the investigating judge may order that a suspect be brought before the court (Vorführung) or be provisionally detained (vorläufige Verwahrung), in particular if the suspect is apprehended in or shortly after the commission of a criminal offence, if he has absconded or if there is a risk of his absconding, of collusion or if it is likely that offences may be committed. In such cases the investigating judge has to issue a written warrant of arrest which has to be served upon the suspect at his arrest or within the next twenty- four hours (S. 176 para. 1). S. 177 provides that exceptionally provisional detention of a suspect may be ordered by a judge not competent for the case or by the police authorities (Sicherheitsbehörden) for the purpose of bringing him before the investigating judge, where the suspect is apprehended in or shortly after the commission of a criminal offence, or where, in cases of a risk of his absconding, of collusion or of the likelihood of the commission of offences, there is imminent danger (Gefahr im Verzug). The person provisionally detained must be questioned without delay by the judge or the police authorities and, in the absence of a reason justifying his further detention, be released, or be transferred to the competent court within forty-eight hours. S. 179 para. 1 states that any suspect transferred to the court or brought before the court upon an order of the investigating judge must be questioned by the investigating judge within 24 hours. If this is not possible, the suspect may remain in provisional detention; however, his questioning must begin as soon as possible, the latest at the expiry of three days, and the reasons why he was not questioned earlier have to be recorded. According to S. 179 para. 2, first sentence, the investigating judge, having questioned the suspect, must immediately decide upon his release or his detention on remand (Unter- suchungshaft). According to Austrian case-law, the above time-limits start to run upon transfer of the suspect to the competent court. Under S. 180 paras. 1 and 2 a person may be held in detention on remand if he is seriously suspected of having committed a criminal offence and if there is a risk of his absconding, of collusion or of commission of offences. By virtue of SS. 194 and 195, a person detained is to be released from detention either upon the concurring opinion of the investigating judge and the public prosecutor, or upon the decision of the review chamber following a hearing on the detainee's application for release (Haftprüfungsverhandlung). It is open to the suspect to apply for release at any time. Such an application has to be examined by the review chamber at a private hearing in the presence of the accused or his defence counsel. Once a detainee has been released, the unlawfulness of his detention has to be established in proceedings under the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz). This Act provides for compensation for pecuniary loss resulting from detention on remand and also for unlawful detention. COMPLAINTS The applicant complains under Article 5 para. 1 (c) of the Convention that he was illegally arrested. He submits that the warrant of arrest of 21 December 1990 was wrong in that it stated that he had threatened Ms. Re. and had damaged Mrs. Ri.'s car. However, Ms. Re. herself stated on 18 December that he, the applicant, had only threatened Mr. Ri., not herself; Mrs. Ri. had also said that they now had a secret telephone number. Moreover, the car concerned did not belong to the Re.s, but to Mrs. Ri. who herself had stated that after the fire she had been able to contact the applicant at his Salzburg apartment. Under Article 5 para. 3 the applicant complains that the Salzburg Duty Judge informed him on 26 December 1990 that he was not competent to release him without the permission of the Vienna Court which had issued the warrant of arrest. Thus, the applicant had to wait three weeks until he was brought before an investigating judge. In his observations in reply to the Government dated 18 December 1992 (see below, PROCEEDINGS BEFORE THE COMMISSION) the applicant, invoking Article 5 para. 5 of the Convention, requests compensation for the detention imposed on him contrary to Article 5 paras. 1 (c) and 3 of the Convention. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 14 June 1991 and registered on 20 August 1991. On 13 May 1992 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits in respect of the complaint under Article 5 para. 3 of the Convention. The Government's observations were submitted on 30 October 1992. The applicant's observations were submitted on 18 December 1992. On 18 June 1993 the Acting President decided to require further clarification from the Parties on their observations. The Government's further observations were submitted on 15 July 1993. The applicant's further submissions were submitted on 3 August 1993. THE LAW 1. The applicant complains under Article 5 paras. 1 (c) and 3 (Art. 5-1-c, 5-3) of the Convention of his unlawful arrest and that it took three weeks until he was actually brought before the competent investigating judge. a) The Government submit that the applicant has not complied with the requirement as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. Reference is made in particular to the Review Chamber which supervises compliance with all provisions of the Code of Criminal Procedure relevant to the preliminary inquiries and investigations. Thus, the Review Chamber is competent to examine the lawfulness of decisions issued by the investigating judge. The Chamber is competent to quash or alter any decision so issued. Against the Chamber's decision an appeal may be filed to the Court of Appeal. The Government contend that the applicant thus had an effective remedy at his disposal which he did not raise. The applicant also failed to lodge a request for release from detention on remand. The applicant submits that when he withdrew his complaint on 14 January 1991 a lawyer was not present to advise him. Furthermore, the investigating judge could have released him from remand without his having withdrawn his complaint. In this case, the Review Chamber would no longer have been competent to examine his complaint, as he was no longer in detention. Moreover, the investigating judge, when questioning the applicant on the prevailing suspicion against him, informed him that his release from custody would be delayed, if he maintained his complaint. It could not be expected from the applicant to remain in custody merely to pursue domestic remedies. The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective redress. The Commission also recalls that it is initially for the individual applicant to select which legal remedy to pursue (Eur. Court H.R., Airey judgment of 9 October 1979, Series A no. 32, p. 12, para. 23). Where therefore there is a choice of remedies open to the applicant to redress an alleged violation of the Convention, Article 26 ((Art. 26) of the Convention must be applied to reflect the practical realities of the applicant's position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (No. 9118/80, Dec. 9.3.1983, D.R. 32 p. 165). In the present case, the applicant, after being remanded in custody, raised a complaint about the unlawfulness of the detention on remand before the Review Chamber. However, after having been questioned by the investigating judge, he withdrew his complaint before it could be forwarded to the Review Chamber. The applicant was subsequently released from detention. However, the Commission notes that the applicant also filed a request for compensation for unlawful detention on remand with the Vienna Court of Appeal and, upon appeal, with the Supreme Court. Both courts were competent to establish the unlawfulness of the detention. However, both Courts concluded that in the present case the applicant's detention had not been unlawful. It follows that the domestic authorities had an opportunity to address the issues which the applicant is now raising before the Commission. This part of the application cannot therefore be declared inadmissible for non-compliance with the requirements under Article 26 (Art. 26) of the Convention. b) The applicant complains under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention of the unlawfulness of the warrant of arrest in that it did not reflect the reality. The Government disagree. Thus, the warrant of arrest of 21 December 1990 correctly stated that there were good reasons to suspect the applicant of having threatened Ms. Re., or of having damaged Mrs. Ri.'s car. The Government moreover point out that the procedure followed also complied with Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. Thus, on 26 December 1990 the Salzburg Investigating Judge informed the competent judge at the Vienna Regional Court of the applicant's response to the charges brought against him. The Vienna Duty Judge thereupon decided to order the applicant's detention; the Salzburg Duty Judge then informed the applicant thereof. The applicant submits that there is a contradiction in that the warrant of arrest repeatedly stated that the applicant had threatened Ms. Re., though it did not explain this threat. As regards the allegation that the applicant damaged Mrs. Ri.'s car, the applicant refers to a statement of Mrs. Ri.'s lawyer according to which there was no concrete evidence in this respect. The Commission must examine whether the imposition of detention on remand on the applicant complied with the conditions laid down in Article 5 para. 1 (c) (Art. 5-1-c) of the Convention, namely the lawful arrest effected for the purpose of bringing the person suspected of having committed an offence before the competent legal authority. The Commission has had regard to the findings of the Austrian Courts in the compensation proceedings for unlawful detention. These Courts found in particular that the applicant had been duly brought before the competent Duty Judge at the Salzburg Regional Court and that detention on remand had been regularly imposed on the applicant. The Courts concluded that no unlawful act could be established. As a result, the Commission finds no indication that the applicant's deprivation of liberty was not "lawful" and "in accordance with the law" within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention. The Commission furthermore recalls that the reasonable suspicion referred to in paragraph 1 (c) of this provision presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Eur. Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, p. 16, para. 32). However, Article 5 para. 1 (c) (Art. 5-1-c) of the Convention does not require that the suspected person's guilt must at that early stage be proven, and it cannot be a condition for arrest and detention pending trial that the commission of the offence with which the person concerned is charged has been established. It is precisely the purpose of the official investigation and detention that the reality and nature of the offences laid against the accused should be definitely proved (see No. 10803/94, Dec. 16.12.87, D.R. 54 p. 35). In the present case the warrant of arrest issued against the applicant on 21 December 1990 stated that the applicant was suspected of having uttered dangerous threats against Ms. Re. by telephone, of having damaged Mrs. Ri.'s car tyres, and of having set fire to this car. It was further stated that there was a danger of committing a criminal offence in view of numerous "attacks". In this respect, the Commission also notes the findings of the Supreme Court that it was rightly supposed that a likelihood of committing offences existed, since according to the contents of the case-file, a strong suspicion prevailed that the applicant had uttered the dangerous threats in question and had ordered someone else to damage the car. Thus, the Commission accepts that, on the basis of the investigations at that early stage of the proceedings, there was a reasonable suspicion against the applicant as required by Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. Finally, Article 5 para. 1 (c) (Art. (Art. 5-1-c) of the Convention also requires that the arrest be effected "for the purpose of bringing him before the competent legal authority". In this respect, the Commission recalls that "paragraph 1 (c) forms a whole with paragraph 3" and "`competent legal authority' is a synonym, of abbreviated form, for `judge or other officer authorised by law to exercise judicial power'" (Eur. Court H.R., Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 75, para. 199; Schiesser judgment of 4 December 1980, Series A no. 34, p. 12, para. 29). However, the Commission also recalls that the existence of such a purpose must be considered independently of its achievement (Eur. Court H.R., Brogan and others judgment of 29 November 1988, Series A no. 145-B, p. 29, para. 53). The Commission notes that the applicant was arrested upon the Vienna Duty Judge's warrant of arrest. The applicant was then brought before the Duty Judge of the Salzburg Regional Court, who, as the Government concede, was not competent to order release on his own accord. However, the Commission notes that the applicant, on 3 January 1991, was transferred to the Vienna Regional Court's Detention Centre and subsequently brought before the Vienna investigating judge. Thus, the Commission considers that the applicant was deprived of his liberty for the purpose of bringing him before the competent legal authority, the Vienna investigating judge, as required by Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. c) The applicant also complains under Article 5 para. 3 (Art. 5-3) of the Convention that it took three weeks until he was brought before the competent investigating judge. In the Government's opinion, the requirements of Article 5 para. 3 (Art. 5-3) of the Convention were complied with. Thus, the applicant was heard by the Salzburg Duty Judge within 24 hours. It is in conformity with Austrian law, that the Duty Judge holding the person immediately contacts the competent investigating judge of the court which has jurisdiction over the offence. That judge can then issue his decision on the detention within the time normally available if the prisoner had been brought to his jurisdiction. However, the Government admit that the Duty Judge at the Salzburg Regional Court was not competent, on his own accord, to release the applicant from detention on remand. The applicant submits that the Duty Judge who heard him on 26 December 1990 was not competent to release him and in any event did not have the relevant documents at his disposal. The applicant points out that both the Vienna and the Salzburg Courts had fax-machines, which would have enabled the transmission of relevant documents from one court to the other. Once the applicant was brought before the competent investigating judge on 14 January 1991, he was indeed released from detention. The Commission finds that this complaint raises difficult questions of fact and law which require an examination of the merits. 2. In his observations in reply to the Government the applicant, invoking Article 5 para. 5 (Art. 5-5) of the Convention, requests compensation for the detention imposed on him contrary to Article 5 paras. 1 (c) and 3 (Art. 5-1-c, 5-3) of the Convention. Assuming that the applicant may be understood as complaining under Article 5 para. 5 (Art. 5-5) of the Convention that the Austrian courts did not award him compensation for the allegedly unlawful detention, the Commission recalls that according to Article 26 (Art. 26) of the Convention it "may only deal with a matter ... within a period of six months from the date on which the final decision was taken." In the present case the applicant claimed compensation for unlawful detention before the domestic authorities. His request was dismissed, upon appeal, by the Supreme Court on 20 May 1992, the decision being served on the applicant on 12 June 1992. This was the final decision regarding the subject of this particular complaint, whereas the applicant raised the complaints at issue before the Commission on 18 December 1992, that is more than six months after the date of the final decision. Furthermore, an examination of the case does not disclose any special circumstances which might have interrupted or suspended the running of that period. It follows that the remainder of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention. For these reasons, the Commission unanimously, DECLARES ADMISSIBLE, without prejudging the merits of the case, the complaint that the applicant was not brought promptly before a judge competent to order his release within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention; and by a majority, DECLARES INADMISSIBLE the remainder of the application. Secretary to the First Chamber President of the First Chamber (M.F. BUQUICCHIO) (A. WEITZEL)
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