Application No. 11968/86
Helmut BÖHLER
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 14 December 1988)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-12). ...................................... 1
A. The application
(paras. 2-4). ............................... 1
B. The proceedings
(paras. 5-7). ............................... 1
C. The present Report
(paras. 8-12). .............................. 2
II. ESTABLISHMENT OF THE FACTS
(paras. 13-33). ..................................... 3
A. The particular circumstances of the case
(paras. 13-27)............................... 3
B. Relevant domestic law
(paras. 28-33)............................... 5
III. SUBMISSIONS OF THE PARTIES
(paras. 34-60)....................................... 8
A. The applicant
(paras. 34-48)............................... 8
a. Article 5 para. 3 of the Convention
(paras. 34-40) .......................... 8
b. Article 6 para. 1 of the Convention
(paras. 41-47) .......................... 9
B. The Government
(paras. 48-60) .............................. 11
a. Article 5 para. 3 of the Convention
(paras. 48-51) .......................... 11
b. Article 6 para. 1 of the Convention
(paras. 52-60) .......................... 11
Page
IV. OPINION OF THE COMMISSION
(paras. 61-85) ...................................... 14
A. Points at issue
(para. 61) .................................. 14
B. Article 5 para. 3 of the Convention
(paras. 62-71) .............................. 14
a. Period to be considered
(paras. 63-67) .......................... 14
b. Reasonableness of the length of the
applicant's detention
(paras. 68-70) .......................... 15
c. Conclusion
(para. 71) .............................. 15
C. Article 6 para. 1 of the Convention
(paras. 72-84) .............................. 15
a. Period to be considered
(para. 73-74) ........................... 15
b. Reasonableness of the length of the
proceedings
(paras. 75-83) .......................... 16
c. Conclusion
(para. 84) .............................. 17
D. Recapitulation
(para. 85) .................................. 17
DISSENTING OPINION OF MR. S. TRECHSEL, JOINED BY
MESSRS. J.C. SOYER, H.G. SCHERMERS AND J. CAMPINOS
AND MRS G.H. THUNE ......................................... 18
APPENDIX I: HISTORY OF THE PROCEEDINGS .................... 21
APPENDIX II: DECISION ON THE ADMISSIBILITY ................. 22
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application&_
2. The applicant, born in 1940, is an Austrian citizen who
before his detention in the present case lived in Innsbruck where he
worked as an insurance salesman. Before the Commission, he is
represented by Dr. G. Stanonik, a lawyer practising in Salzburg.
The application is directed against the Republic of Austria
whose Government were represented by their Agent, Ambassador
Helmut Türk, Head of the International Law Department at the Federal
Ministry of Foreign Affairs.
3. The application relates to criminal proceedings instituted
against the applicant on 1 July 1980. On 16 November 1982 the
Salzburg Regional Court (Landesgericht) convicted the applicant of
fraud and of violations of the foreign exchange laws and sentenced him
to eight years' imprisonment. The written judgment was served on the
applicant on 28 August 1985. The applicant then filed a plea of
nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). On
19 December 1985 the Supreme Court (Oberster Gerichtshof) reduced the
applicant's sentence to six years' imprisonment.
4. The applicant complains under Article 5 para. 3 of the
Convention that he was detained on remand for five and a half years
from 1 July 1980 until 19 December 1985. Thus he was not tried within
a reasonable time or released pending trial within the meaning of that
provision. The applicant also complains under Article 6 para. 1 of
the Convention of the length of the court proceedings, in particular
that he only received the written grounds of the judgment 33 months
after it had been pronounced.
B. The proceedings&_
5. The application was introduced on 10 January 1986 and
registered on 29 January 1986.
On 8 July 1986 the Commission decided in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the
application to the respondent Government and to invite them to present
before 17 October 1986 their observations in writing on the
admissibility and merits of the application. The Government's
observations of 13 October 1986 were received on 15 October 1986.
The applicant's undated reply was received on 1 December 1986.
6. On 7 May 1987 the Commission declared the application
admissible.
7. After declaring the application admissible, the Commission,
acting in accordance with Article 28 (b) of the Convention, also
placed itself at the disposal of the parties with a view to securing a
friendly settlement of the case. Consultations with the parties took
place between 12 May 1987 and 27 April 1988. In the light of the
parties' reaction, the Commission now finds that there is no basis
upon which a settlement can be effected.
C. The present Report&S
8. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberation and
votes, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
9. The text of this Report was adopted on 14 December 1988 and
is now transmitted to the Committee of Ministers of the Council of
Europe in accordance with Article 31 para. 2 of the Convention.
10. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
11. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
12. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case&_
13. On 1 July 1980 the applicant was arrested on suspicion of
fraud and remanded in custody. Criminal proceedings were instituted
against the applicant and in 1982 he was tried before the Salzburg
Regional Court. The case file consisted of 13 volumes with more than
100 pages of expert opinions. In addition, there were 30 volumes
consisting of documentary evidence. The trial (Hauptverhandlung)
lasted five days, during which 30 witnesses were heard. The minutes
of the trial consisted of 357 pages.
14. On 16 November 1982, after a hearing at which the applicant
was present, the Court orally pronounced its judgment and mentioned
the relevant reasons therefor. In the judgment it convicted the
applicant of various instances of fraud (Betrug), aggravated fraud
(schwerer Betrug), and professional fraud (gewerbsmäßiger Betrug) in
amounts varying between 10,000 and 1,000,000 AS as well as of
violations of the foreign exchange laws. The Court sentenced the
applicant to eight years' imprisonment, making allowance for the
period of detention on remand since 1 July 1980.
15. The written judgment was served on the applicant on
28 August 1985.
With regard to the period after judgment was pronounced
publicly on 16 November 1982 and the preparation of the written
judgment, the Government have submitted a schedule of the workload
of M, the judge responsible for the preparation of the written
judgment, and of his Court Department No. 20.
16. It appears from the schedule that, from 1 January 1982 until
31 July 1985, the Court Department No. 20 was overburdened in that the
number of finished cases per year never reached the total number of
new cases of the same year and of the unfinished business of the
preceding year.
17. Thus Judge M was responsible, from 29 November until
29 December 1982, alone or together with associate judges or lay
judges, for 33 hearings, for instance on 22 December 1982 for nine
hearings. Similarly, in 1983 he was responsible for 124 hearings, in
1984 for 277 hearings and until 22 July 1985 for 151 hearings. In
1984, Judge M had to bring to an end two jury trials and, from
1 January to 31 July 1985, one jury trial.
18. The Government have also indicated the steps taken by the
competent supervisory authority in order to obtain the written
judgment. Thus, as from the beginning of 1983, the supervisory
administrative authorities were constantly taking measures in respect
of Judge M in order to enable him to complete the written grounds of
the judgment of the present case. Disciplinary proceedings were
instituted against him, and on 4 March 1984 the Linz Court of Appeal
(Oberlandes gericht) as the disciplinary tribunal decided to impose on
Judge M the administrative penalty of an admonition (Ermahnung) on
account of the delays which had occurred with regard to the
applicant's written judgment.
19. When thereafter Judge M did not prepare the written judgment,
he justified the delay with his workload as well as with personal
problems, namely his father's death and heart surgery undertaken on
his son. On 4 June 1985, the supervisory panel (Personalsenat) of
the Salzburg Regional Court decided not to allocate new cases to the
judge in order to give him an opportunity to catch up on the backlog
in judgments. On 5 June 1985 the applicant filed a request for the
written judgment. New disciplinary proceedings were eventually
instituted against the judge. On 1 July 1986 the Linz Court of Appeal
decided that he was to be barred from promotion for two years. The
judge appealed against this decision.
20. While being detained on remand, the applicant filed an
application for release on 19 May 1985, which was withdrawn by him
on 4 June 1985 as he was unable to provide sufficient bail. On 5 June
1985 he again applied for his release from detention on remand whereby
he offered bail of 250,000.- AS. He submitted that his detention was
not justified in view of the fact that his wife and their child lived
in Salzburg and as his education would enable him to find work. His
application was granted by the Review Chamber (Ratskammer) at the
Salzburg Regional Court on 17 July 1985, which ordered his release on
bail.
21. The Review Chamber recalled that the judgment of the Salzburg
Regional Court had not yet acquired legal force. With reference to
Section 180 of the Code of Criminal Procedure (Strafprozessordnung) it
found, on the one hand, that the danger of repetition as a ground for
detention on remand had been sufficiently reduced by the duration of
the applicant's detention, now lasting five years. On the other hand,
danger of absconding had not become irrelevant. Rather, as the
applicant himself admitted, he had deposited bars of silver to the
amount of approximately 10,000,000.- AS in a Zurich bank and he
himself had been able during his detention on remand to organise the
sale of 60 kilos of that silver.
The Review Chamber concluded that the applicant had
connections with persons in other countries, thus giving rise to the
suspicion that he would abscond to another country in view of the
sentence of eight years imposed on him. Nevertheless, this ground of
a danger of absconding could be reduced by means of granting bail as
the more lenient measure. In view of the consequences of the offences
and in order to be effective, the Review Chamber set the amount of
bail at 2,000,000.- AS.
22. The decision of the Review Chamber was confirmed by the Linz
Court of Appeal on 14 August 1985. However, as the applicant was
unable to furnish the bail of 2 million AS ordered by the Review
Chamber, he remained in custody.
23. The written judgment of the Salzburg Regional Court was served
upon the applicant on 28 August 1985.
24. The judgment, which numbered 126 pages, mentioned in
particular the 25 persons, residing in different towns in Austria,
in respect of whom the applicant had fraudulently obtained on
altogether 42 occasions a total of approximately 10 million AS.
A substantial part of these monies had been transferred to the Federal
Republic of Germany and Switzerland. Thereby, the applicant had
violated the Austrian foreign exchange laws on seven occasions to the
amount of approximately 8,5 million AS. The Court acquitted the
applicant of three charges of fraud.
25. According to the judgment, the applicant and his wife founded
or acquired in 1979 various companies in Austria, Liechtenstein and
Switzerland. The applicant then acted as a financial adviser to
various persons to whom he promised profitable investments bearing an
interest of 17 % to 35 %. Between autumn 1979 and the end of 1980
the applicant extricated from them considerable sums of money, which
he used to finance his company and a business style which demonstrated
that the companies were sound. The Court's judgment then analysed in
detail the single offences committed by the applicant.
26. After the judgment had been pronounced the applicant filed a
plea of nullity with the Supreme Court (Oberster Gerichtshof) in which
he complained that during the proceedings his objections to an expert
and his various applications for the taking of evidence had not been
considered. He also filed an appeal (Berufung) with the Supreme Court
in which he complained about the sentence.
27. On 14 November 1985 the Supreme Court dismissed the
applicant's plea of nullity as being unfounded. On 19 December 1985
the Supreme Court granted his appeal to the extent that it reduced the
applicant's sentence from eight to six years.
B. Relevant domestic law&S
28. The offences of aggravated fraud - Section 147 para. 3 of the
Austrian Penal Code (Strafgesetzbuch) - and of professional fraud
involving aggravated fraud (Section 148) are punishable by
imprisonment lasting between one and ten years.
29. Detention on remand is ordered under Section 180 paras. 1
and 2 of the Austrian Code of Criminal Procedure (Strafprozessordnung)
if the accused is seriously suspected of having committed a criminal
offence and if there is a danger of absconding, collusion, or
repetition. According to para. 3 of Section 180, a danger of
absconding is not to be assumed if the accused is suspected of a
criminal offence not punishable by more than five years' imprisonment.
30. According to Section 193 of the Code of Criminal Procedure, in
the version in force until 1983, detention on remand could be extended
under certain circumstances to a maximum of two years if the accused
was suspected of having committed an offence threatened with
imprisonment of at least ten years. However, since 1983 para. 5 of
Section 193 provides that this time-limit no longer applies once the
trial has commenced, as long as there are other grounds of detention
than only the danger of collusion.
31. Section 397 of the Code of Criminal Procedure states, insofar
as relevant to the present case:
"Jedes Strafurteil ist ungesäumt in Vollzug zu setzen, sobald
feststeht, daß der Vollstreckung kein gesetzliches Hindernis und
insbesondere kein rechtzeitig und von einem hierzu Berechtigten
ergriffenes Rechtsmittel entgegensteht, dem das Gesetz
aufschiebende Wirkung beimißt (§ 284 Abs. 3, § 294 Abs. 1 und
§ 344)."
"Every judgment must immediately be executed as soon as it is
certain that there is no legal obstacle to execution,
particularly no remedy which has been duly filed by a person
entitled thereto and in respect of which the law provides for a
suspensive effect (Sections 284 para. 3, 294 para. 1, and 344)."
The remedies employed by the applicant had such suspensive
effect, his plea of nullity according to Section 284 para. 3 and his
appeal according to Section 294 para. 1. According to Section 284
para. 1 these remedies must be announced (anzumelden) within three
days after the oral pronouncement of the judgment, whereupon their
suspensive effect commences. Thus, under Austrian law the applicant
remained in detention on remand while his remedies were pending before
the Supreme Court.
32. Sections 257 to 270 of the Code of Criminal Procedure govern
the judgment of the first instance Court, its pronouncement and the
preparations of the written grounds. Section 270 states, insofar as
relevant for the present case:
"(1) Jedes Urteil muss binnen vierzehn Tagen vom Tage der
Verkündung schriftlich ausgefertigt und vom Vorsitzenden
sowie vom Schriftführer unterschrieben werden.
(2) Die Urteilsausfertigung muss enthalten:
...
5. die Entscheidungsgründe. In diesen muss in gedrängter
Darstellung, aber mit voller Bestimmtheit angegeben sein,
welche Tatsachen und aus welchen Gründen der Gerichtshof sie
als erwiesen oder als nicht erwiesen angenommen hat, von
welchen Erwägungen er bei der Entscheidung der Rechtsfragen
und bei Beseitigung der vorgebrachten Einwendungen geleitet
wurde und, im Fall einer Verurteilung, welche Erschwerungs-
und Milderungsumstände er gefunden hat."
"(1) The written reasons for every judgment shall be
prepared within fourteen days from the date of the
pronouncement and shall be signed by the president as well
as the reporter.
(2) The written reasons of the judgment shall contain:
...
5. the grounds for the decision. Therein shall be
mentioned in a compressed presentation, but with full
precision, which facts are regarded as established, or not
established, by the Court, and the reasons therefor; the
considerations which guided the Court when deciding the
legal issues and when rejecting the objections made; and,
in the case of a conviction, which aggravating or mitigating
circumstances the Court has found."
As regards in particular the time-limit stated in Section 270
para. 1, non-observance of that time-limit does not according to
Austrian doctrine lead to the nullity of the judgment (see
E. Foregger/E. Serini, Die österreichische Strafprozessordnung,
Vienna 1982, p. 318 N. II).
33. In respect of the remedies available against a judgment,
Section 285 para. 1 states, insofar as it is relevant for the present
case:
"(1) Der Beschwerdeführer hat das Recht, binnen vierzehn
Tagen nach der Anmeldung der Nichtigkeitsbeschwerde, wenn
ihm eine Urteilsabschrift aber erst nach der Anmeldung des
Rechtsmittels zugestellt wurde, binnen vierzehn Tagen nach
der Zustellung eine Ausführung seiner Beschwerdegründe beim
Gericht in zweifacher Ausfertigung zu überreichen..."
"(1) The applicant has the right to submit with the Court
in duplicate the written reasons for his plea of nullity
within fourteen days after he has filed his plea of nullity
or, if the copy of the decision is served on him only after
the remedy was filed, within fourteen days after the decision
is served ..."
III. SUBMISSIONS OF THE PARTIES
A. The applicant&_
a. Article 5 para. 3 of the Convention
34. The applicant submits that despite his various applications
to be released he was not tried within a reasonable time or released from
detention pending trial within the meaning of Article 5 para. 3 of the
Convention. In particular, his detention on remand lasted from
1 July 1980 until 19 December 1985 when the judgment of the Regional
Court acquired legal force. The applicant contends that in this respect
Section 193 of the Code of Criminal Procedure is so general that it
contradicts the Convention. In particular, until 1983 Section 193
permitted detention on remand indefinitely after a person had formally
been indicted, and since 1983, it permits indefinite detention once the
trial has begun.
35. Article 5 para. 3 of the Convention is not intended, in
combination with Article 5 para. 1 (c), to guarantee that detention on
remand shall be set off against a sentence of imprisonment. Its
object is rather to limit restrictions on a person's freedom by
detention on remand before being sentenced to imprisonment as provided
for by domestic law, and, in any event, to ensure that this detention
without a final sentence is not longer than necessary. The concept of
a "conviction" can accordingly only be understood within the meaning
of this provision as a final, enforceable decision which finally
determines the charge. Article 5 para. 3 is therefore in no way
concerned with whether the applicant will possibly at a later stage
have to serve a sentence which is just as long or perhaps longer.
This provision is also not concerned with whether the applicant
suffered "damage". Its object is rather to ensure that when the
matter is not determined within a reasonable time the applicant has a
right to be released from detention. Of course, he may later receive
a heavier sentence which he must duly serve.
36. Only on the application of 17 July 1985 did the Review Chamber
decide that the applicant should be released on bail. This release
was ordered more than two and a half years after the first instance
judgment had been pronounced. This period of time exceeded a
reasonable time. If it is argued that two years of detention on
remand were perfectly normal in the instant case, this period had
already been served a long time ago when judgment was given at first
instance. The applicant had to undergo a further two and a half years'
detention on remand before being released on bail after judgment was
given and in spite of the fact that the written judgment was not
prepared. That delay was unreasonable.
37. Under Article 5 para. 3 of the Convention release may be
conditioned by guarantees to appear for trial. The decision of the
Review Chamber of 17 July 1985 discloses that bail was required on
account of the danger that the accused might abscond. Appearance in
court is no longer necessary at this stage of the proceedings. The
accused is free to decide whether he wants to appear in the
proceedings concerning an appeal and a plea of nullity before the
Supreme Court. Accordingly, bail can only apply to the execution of
the sentence. But this is not covered by Article 5 para. 3. The
latter also does not require an application for release. This right
must be granted by the State as a matter of course.
38. The applicant submits that the length of his detention
prevented him from applying in accordance with Section 46 of the
Austrian Criminal Code for a reduction of his prison sentence on
account of good conduct. Thus he could only file his application after
five and a half years of his sentence of altogether six years had
elapsed. In view of the fact that the original sentence of eight
years could have been reduced by half, he in fact lost one and a half
years of his life on account of the unjustifiable delay caused by the
Regional Court.
39. Doctrine and practice unanimously hold that Section 46, which
provides for the conditional release from imprisonment, confers a
right on the offender. It is also no longer retrospectively possible
to reconstruct what the decision on conditional release would have
been, if it had been made earlier.
40. The applicant finds it incompatible with the Convention that,
under Austrian law, detention on remand may be continued without any
limit when the trial has opened. It is not enough to argue that
Article 5 para. 3 of the Convention only provides protection until
judgment is given at first instance. Domestic legislation should
provide the necessary guarantees, for instance that the accused is
released, if the written judgment is not prepared within the period of
two weeks specified in Section 270 of the Code of Criminal Procedure.
This would also ensure that the judge prepares the written grounds
within a reasonable time.
b. Article 6 para. 1 of the Convention
41. The applicant submits that the court proceedings in which he
was involved were not concluded within a reasonable time within the
meaning of Article 6 para. 1 of the Convention. In particular, he did
not, until 28 August 1985, receive the written grounds of the judgment
of 16 November 1982, which were essential for the appeal proceedings.
Yet, if the Regional Court had acted promptly he could have filed his
memorial stating the grounds of his plea of nullity much earlier. His
appeal to the Supreme Court eventually succeeded.
42. The applicant further refers to the rationale of Section 270
of the Code of Criminal Procedure (para. 32 above). When the Court
reaches its decision after deliberation, the judgment represents the
opinion of the court. The Court must by then have considered all the
circumstances coming to light in the course of the proceedings in the
case. Further delay can therefore not be justified by the complexity
of the case.
43. The complexity of the case might justify a long trial and
consequently a longer period of detention on remand up to the end of
the trial. In the present case, on 16 November 1982, when the judgment
was given, the Court must therefore have been fully aware of the
grounds. In fact the judge concerned had nothing more to examine. He
must merely set down the grounds arrived at in the deliberations of
the court. Possibly he may be granted a few days in order to choose
suitable wording or include cross-references in the text. But he
cannot be given more time than what he requires for correcting the
draft. Any other solution would mean that the judge concerned
produced the grounds of the judgment and that the other judges did not
really participate in reaching the decision of the court.
44. The applicant recalls that the period to be taken into account
in assessing whether the length of the proceedings was reasonable
within the meaning of Article 6 para. 1 runs up to the time when the
judgment becomes final. In the present case the time required was no
longer reasonable, particularly since an appeal to the Supreme Court
could only be filed after the written judgment had been prepared.
45. As regards the case-load before Court Department No. 20, the
number of new cases was in no way unusual or higher than in other
departments. Other judges have even more complicated cases to deal
with, in which the preparation of the written grounds did not take so
long.
46. The measures taken by the authorities in the present case were
inadequate and irrelevant. Only in 1984 did the authorities find it
necessary to impose a mild disciplinary sanction on Judge M for
failing for almost two years to prepare the written judgment. In
1985, no similar measures were taken. In 1986, a disciplinary
sanction was again pronounced against Judge M which was irrelevant for
the present case.
47. Austrian law does not provide for legislative measures as to
how a judge should be forced to perform his duties. However, the
Government had at its disposal much more effective measures to remedy
the situation. For instance, Section 104 of the Judicial Service Act
(Richterdienstgesetz) provides for the disciplinary sanctions of
reprimand, cancelling increments, reduction of salary, transfer to
another post without transfer allowances, retirement on reduced
pension and dismissal. Nevertheless, the Government only imposed the
two mildest disciplinary sanctions, and only the sanction of a
reprimand was imposed before the written grounds were prepared. Under
Section 51 of the Judicial Service Act, the staff senate of the
competent court must prepare an official report every year on each
judge's work. In the reports on Judge M there is no mention between
1982 and 1985 that his work was unsatisfactory and that he was not
even able to produce the written judgment which had already been
pronounced. In fact, the intake of new cases should have been
stopped. It would have been possible to transfer Judge M in the years
1983-1985 to another division and to employ him as an investigating
judge, a function which involves much less work.
B. The respondent Government&S
a. Article 5 para. 3 of the Convention
48. The Government point out that the applicant only once applied
for release from detention on remand which was eventually allowed.
Thus, after providing bail of 2 million AS, the applicant would have
been released until the sentence became final. The authorities cannot
be blamed for the fact that the applicant was unable to provide bail
and therefore had to remain in prison.
49. Article 5 para. 3 of the Convention permits the interpretation
that the period to be assessed under this provision ends with the
pronouncement of the judgment of the court of first instance. The
need to have a written judgment cannot be inferred from the law.
Moreover, according to the case-law of the European Court of Human
Rights, the period relevant under Article 5 para. 3, which in the
applicant's case commenced on 1 July 1980, ends with the release from
pre-trial detention or the pronouncement of the judgment of the court
of first instance, i.e. in the present case on 16 November 1982.
This period cannot be considered unreasonably long in view of the
complexity of the case, the necessity to question numerous persons
within the framework of mutual legal assistance, the extent of the
punishment involved, the strong suspicion of a criminal act and the
existing reasons for arrest. Up to the pronouncement of the judgment,
the domestic judicial authorities dealt with the matter expeditiously.
Therefore, the Convention has also not been violated in this respect.
50. As regards Section 193 of the Code of Criminal Procedure,
the Convention contains no requirement concerning an absolute
time-limit for detention on remand. A statutory regulation which
nevertheless makes provision for such a time-limit cannot therefore be
in contravention of Article 5 para. 3 of the Convention, as it makes
the end of this time-limit dependent on a certain stage of the
proceedings, i.e. after the trial has begun.
51. Under Section 193 para. 2 of the Code of Criminal Procedure,
the reasonableness of the length of the detention on remand must also
be checked particularly under the aspect of the principle of
proportionality namely as to whether or not the duration is reasonable
in relation to the expected sentence. In the case of obvious
unreasonableness, detention must be terminated. Before the judgment
is given, the reasonableness and proportionality of detention on
remand must be viewed in particular in the light of the penalty in
question, the severity of the offence and the personal circumstances
of the accused, namely his criminal record. The assessment of the
proportionality of detention on remand becomes more concrete once the
court of first instance has given its judgment. In the light of the
above, it emerges that the applicant's detention on remand was not
unreasonably long.
b. Article 6 para. 1 of the Convention
52. According to the constant case-law of the Convention organs,
the complexity of the case as well as the conduct of the applicant and
of the competent public authorities must be examined in order to
assess the reasonableness of the length of the proceedings.
53. The present criminal case with its economic implications and
connections with other countries was based on complex facts.
Reference may be made to the great number of files, days of hearings
and witnesses heard. Moreover, at the time of pronouncement of
judgment, it was not necessary for the judge to have prepared a draft
version of the grounds. When preparing the written judgment he must
again study all files containing expert opinions, documentary evidence
and the testimony of witnesses so as not to overlook any detail and to
avoid any contradictions. Finally, the judge must be able to submit a
written judgment which will bear review by the appellate court.
54. As to the applicant's conduct, it must be noted that he urged
preparation of the written judgment only once, namely on 5 June 1985.
He also did not file a hierarchical appeal (Aufsichtsbeschwerde) under
Section 15 of the Code of Criminal Procedure.
55. As regards the conduct of the competent authorities, the
Government refer to the case-law of the Convention organs according to
which delays may be justified if the courts were not able to cope
with the sharply increasing number of cases (Eur. Court H.R., Guincho
judgment of 10 July 1984, Series A No. 81, p. 16 para. 38). Such
delays, however, would have to be kept as short as possible by the
State. Moreover, delays cannot entail responsibility of the State if
the latter takes immediate and appropriate remedial action (cf. Eur.
Court H.R., judgment of Zimmermann and Steiner of 13 July 1983,
Series A No. 66, p. 12 para. 29). The delay in the present case
resulted from the complexity of the case and the competent authorities
took all possible measures to expedite the preparation of the written
judgment, i.e. exemption of the judge concerned from new business;
monitoring by the supervisory authority; disciplinary measures.
56. Nevertheless, if one considers the constitutionally ensured
principle of the independence of judges, guaranteed by the rules of
irremovability and freedom from transfer, as well as the resulting
principle of the fixed allocation of work, delays may occur in the
interest of the certainty of law as long as, in exceptional cases,
judges who do not satisfy the requirements which they are expected
to meet may be transferred within the framework of disciplinary
proceedings. Another judge can then be appointed as head of the
department.
57. The Government do not accept that a violation of Section 270
para. 1 of the Code of Criminal Procedure implies a violation of
Article 6 para. 1 of the Convention. The Commission has stated that a
violation of Section 270 para. 1 does not breach Article 6 para. 1 of
the Convention if the written reasons for the judgment have not been
available eight months after its pronouncement (See No. 4459/79,
Dec. 3.4.71, Collection 38 p. 44).
58. The issue whether or not the delays were to the detriment
of the applicant must be judged by taking all circumstances into
consideration. Thus, at the hearing on 16 November 1982 the judgment
was pronounced publicly and the pertinent reasons were mentioned. The
fact that the judgment, the contents of which were already known to
the applicant, was not put into written form had the sole consequence
that the Supreme Court was not able immediately to decide on the
appeals lodged by the applicant. Nevertheless, the applicant would in
any case have had to serve the sentence. Even if the first judge had
issued the written judgment immediately, the Supreme Court would still
not have reduced the sentence to less than six years. However, the
applicant did not have to serve more than six years. The delay in the
preparation of the written reasons was not therefore detrimental to
the applicant.
59. Different criteria must be used for judging the reasonableness
of the length of proceedings before and after pronouncement of the
judgment. Before the judgment is pronounced, the accused is under the
strain of not knowing whether he will be found guilty and if so what
sentence will be imposed on him. The right to a speedy conclusion of
the proceedings under Article 6 para. 1 of the Convention serves
especially to keep this strain on the accused within justifiable
limits. While in the present case, the oral pronouncement of the
judgment did not completely eliminate this uncertainty, it was
considerably reduced. The two and a half years required for the
preparation of the written reasons of the judgment did not put as
great a strain on the applicant as a similarly long delay in the
preparatory proceedings would have posed for an accused who was
detained pending trial.
60. If the applicant submits that, after having served two-thirds
of his sentence, he was not released on probation because no written
reasons had been prepared for the judgment, he overlooks that a
criminal has no right to claim parole. His release on probation would
not have been granted if the first judge had produced the written
judgment immediately. In the present case, the applicant filed a
request for release on probation on 28 March 1986 which was rejected
by two courts. The latter held that the purpose of the punishment is
to deter the offender from further wrongdoing.
IV. OPINION OF THE COMMISSION
A. Points at issue&S
61. The points at issue are
a) whether there has been a violation of Article 5 para. 3 of the
Convention, in that the applicant's detention on remand exceeded a
reasonable time;
b) whether there has been a violation of Article 6 para. 1 of the
Convention, in that the criminal proceedings instituted against the
applicant exceeded a reasonable time.
B. Article 5 para. 3 of the Convention&S
62. Article 5 para. 3, insofar as relevant, provides as follows:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article ... shall be
entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to
appear for trial."
a. Period to be considered
63. The applicant was arrested on suspicion of fraud and remanded
in custody on 1 July 1980. On this date the period commenced which is
to be considered under Article 5 para. 3 of the Convention.
64. As regards the end of the period to be considered under this
provision, the applicant submits that his detention on remand
terminated on 19 December 1985 when the Supreme Court gave its
judgment on the appeal. The Government contend that the period to be
considered ended with the pronouncement of the judgment of the court
of first instance on 16 November 1982.
65. The Commission recalls the judgment of the European Court of
Human Rights in the Wemhoff case according to which the relevant
period under Article 5 para. 3 ends with the day on which the charge
is determined by a court of first instance. Thereafter, the person is
in a position provided for by Article 5 para. 1 (a) of the Convention,
which authorises deprivation of liberty "after conviction" (judgment
of 27 June 1968, Series A No. 7, p. 23f para. 9).
66. The Commission notes that important differences exist among
the Convention States on the question whether a person convicted in
first instance has started serving the sentence while an appeal is
pending. The Commission considers that the important guarantees of
Article 5 para. 3 of the Convention cannot be made dependent on the
national situation. Rather, the Commission notes that Article 5
para. 1 (a) of the Convention refers to the detention "after
conviction by a competent court". The Commission therefore is of the
opinion that, even where according to national law a person convicted
in first instance continues to be detained on remand while an appeal
is pending, Article 5 para. 1 (a) of the Convention creates the
justification for such detention under the Convention.
67. As a result, the applicant's detention on remand ended on
16 November 1982 when the charges brought against him were determined
by a first instance court.
The entire period of detention on remand therefore lasted from
1 July 1980 until 16 November 1982, i.e. two years, four months and
fifteen days.
b. Reasonableness of the length of the applicant's detention
68. The applicant has not complained specifically about the period
of his detention on remand between 1 July 1980 and 16 November 1982.
The Government contend that the length of the applicant's
detention on remand cannot be considered unreasonable in view of the
complexity of the case, the necessity to question numerous persons
within the framework of international legal assistance, the punishment
imposed, the strong suspicion of a criminal offence and the existing
reasons of arrest.
69. The Commission notes that the case concerned complex offences,
namely a number of instances of fraud perpetrated on various occasions
and involving many witnesses residing in Austria and abroad. The
case-file eventually consisted of 43 volumes, and at the trial thirty
witnesses were heard. Moreover, there is no indication that the
authorities failed to display the diligence required by the Convention
in the case of a detained person.
70. The Commission is therefore satisfied that this period of
the applicant's detention on remand was necessary to pursue the
investigations in his case. It concludes that the applicant's
detention on remand, did not exceed a reasonable time within the
meaning of Article 5 para. 3 of the Convention.
c. Conclusion
71. The Commission concludes, by 11 votes to 5, that there has
been no violation of Article 5 para. 3 of the Convention.
C. Article 6 para. 1 of the Convention&S
72. Article 6 para. 1 of the Convention, insofar as it is relevant
for the present case, provides as follows:
"In the determination ... of any criminal charge against him,
every one is entitled to a ... hearing within a reasonable
time."
a. Period to be considered
73. The period to be considered under Article 6 para. 1 of the
Convention lasted from 1 July 1980, when criminal proceedings were
instituted against the applicant, until 19 December 1985, when the
Supreme Court partly granted the applicant's appeal, i.e. in all five
years, five months and 18 days.
74. While it is always the entire span of the proceedings which it
must examine, the Commission observes that the main question of the
present case concerns the time required by the competent judge at the
Salzburg Regional Court for the preparation of the written judgment.
This judgment was served on the applicant on 28 August 1985, i.e. two
years, nine months and 11 days, or approximately 33 months after the
judgment had been pronounced on 16 November 1982.
b. Reasonableness of the length of the proceedings
75. The applicant submits that he was kept waiting for more than
two and a half years for the preparation of the written judgment which
had already been pronounced orally, although according to Section 270
para. 1 of the Austrian Code of Criminal Procedure, the written
judgment should have been prepared within fourteen days after the
pronouncement.
The Government submit that Article 6 para. 1 calls for
different criteria when establishing the reasonableness of the length
of criminal proceedings once the judgment of a court of first instance
has been pronounced, since the delay caused by the preparation of the
written reasons of the judgment no longer puts so great a strain on
the applicant.
76. The Commission recalls that the reasonableness of the length
of criminal proceedings has to be assessed in each case according to
its particular circumstances and having regard in particular to the
complexity of the case as well as to the conduct of the applicant and
the judicial authorities (see Eur. Court H.R., Corigliano judgment of
10 December 1982, Series A No. 57, p. 14 para. 37).
Insofar as the applicant refers to the time-limit stated in
Section 270 para. 1 of the Code of Criminal Procedure, the Commission
considers that its assessment of the reasonableness of the length of
the proceedings cannot be made dependent on time-limits stipulated
under domestic law.
77. The Commission has already found that the charges brought
against the applicant raised complex problems for the prosecuting
and investigating authorities as well as for the trial court (see
para. 69). Nevertheless, once the judgment of the Regional Court had
been pronounced on 16 November 1982, the judge called upon to prepare
the written judgment was no longer required to undertake further
investigations of the case. While the task of producing the written
judgment may still have been a laborious one, it cannot, in the
Commission's opinion, be regarded as so complex as to justify under
Article 6 para. 1 of the Convention, the period of 33 months.
78. The delay in the preparation of the written judgment cannot be
attributed to the applicant. Under Austrian law, the applicant had no
means of expediting the proceedings (see No. 4459/70, Dec. 3.4.71,
Collection 38 p. 44).
79. As regards the conduct of the authorities, the Commission
observes that, after the Salzburg Regional Court had pronounced its
judgment on 16 November 1982, Judge M was responsible for a considerable
number of other cases, i.e. in 1983 for 124 hearings, in 1984 for 277
hearings, and in the period from 1 January until 22 July 1985 for 151
hearings.
Thus, rather than relieving the judge of other tasks in order
to hasten the preparation of the written judgment, the authorities in
fact assigned substantial further duties to Judge M.
80. The Commission notes further that the disciplinary proceedings
instituted against Judge M resulted in a disciplinary admonition on
4 March 1984, i.e. 15 months after the judgment had been given, and
that after the imposition of this disciplinary admonishment another
17 months went by before the written judgment was produced.
81. The Commission is not required to establish in detail whether
an alleged violation is imputable to any individual authority. Under
the terms of the Convention, the High Contracting Parties are
responsible for all their organs. Moreover, the fundamental purpose of
the Convention is to provide for the protection of the rights of
individuals. The Convention organs are thus required under Article 19
of the Convention to guarantee protection of these rights and not to
establish whether any specific national authority must be considered
"guilty" (see Zimmermann and Steiner v. Switzerland, Comm. Report
9.3.82, Eur. Court H.R., Series B No. 54, p. 20 para. 46; Eur. Court
H.R., Foti and others judgment of 10 December 1982, Series A No. 56,
p. 21 para. 63).
82. In the present case the Government have not, in the
Commission's opinion, demonstrated that the authorities acted with the
necessary diligence and expedition, for instance when organising the
workload of the judge concerned, or in speedily undertaking efficient
supervisory measures.
83. Consequently, the Commission considers that, as a result of
the delay for which the authorities must be held responsible, the
applicant did not get a hearing within a reasonable time as required
by Article 6 para. 1 of the Convention.
c. Conclusion
84. The Commission concludes by a unanimous vote that there has
been a violation of Article 6 para. 1 of the Convention in that the
criminal proceedings instituted against the applicant exceeded a
reasonable time.
D. Recapitulation&S
85. The Commission concludes, by 11 votes to 5, that there has
been no violation of Article 5 para. 3 of the Convention (para. 71).
The Commission concludes by a unanimous vote that there has
been a violation of Article 6 para. 1 of the Convention in that the
criminal proceedings instituted against the applicant exceeded a
reasonable time (para. 84).
Secretary to the Commission President to the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
DISSENTING OPINION OF MR. S. TRECHSEL,
JOINED BY MESSRS. J.C. SOYER, H.G. SCHERMERS AND J. CAMPINOS
AND MRS G.H. THUNE
I share the Commission's opinion as to its conclusions under
Article 6 para. 1 of the Convention that the length of the criminal
proceedings in which the applicant was involved exceeded a reasonable
time.
To my great regret, however, I cannot follow the Commission's
view that the applicant's detention on remand did not exceed a
reasonable time.
In particular, I consider that Article 5 paras. 1 (c) and 3 of
the Convention were applicable in the present case.
The starting point is the judgment of the European Court of
Human Rights in the Wemhoff case according to which the relevant
period under Article 5 para. 3 ends with the day on which the charge
is determined by a court of first instance. Thereafter, the person is
in a position provided for by Article 5 para. 1 (a) of the Convention,
which authorises deprivation of liberty "after conviction" (judgment
of 27 June 1968, Series A No. 7, p. 23f para. 9), irrespective of
whether that "conviction" has become definitive or not and whether,
under national law, it could be executed or not.
The Court has not reexamined this issue since the Wemhoff
case, though it has occasionally been confronted with the scope of
Article 5 para. 1 (a). Thus it has held that
"The word 'after' in sub-paragraph (a) does not simply mean
that the detention must follow the 'conviction' in point of
time: in addition, the detention must result from, follow
and depend upon or occur by virtue of the 'conviction' ...
In short, there must be a sufficient causal connection
between the conviction and the deprivation of liberty at
issue ..." (Eur. Court H.R., Monnell and Morris judgment
of 2 March 1987, Series A No. 115, p. 17f para. 40;
van Droogenbroeck judgment of 24 June 1982 Series A No. 50,
p. 19 para. 35)
I consider that this case-law calls for a reconsideration of
the position of detention following conviction by a court of first
instance within the system of Article 5 para. 1 of the Convention. The
question arises in particular as to whether the applicant's detention
between 16 November 1982 and 19 December 1985 falls to be considered
under Article 5 para. 1 (a) of the Convention in that there was a
"sufficient causal connexion" between the judgment of the Regional
Court of 16 November 1982 and the applicant's subsequent deprivation
of liberty. In resolving this issue, I note that the Court, when
interpreting the terms "sufficient causal connection", has relied
substantially on the domestic law in question (see Monnell and Morris
judgment, ibid., p. 19 para. 46).
At this stage it is useful to consider the domestic legal
situation. According to Section 397 of the Austrian Code of Criminal
Procedure, a court judgment imposing a prison sentence is not executed
as long as the person in question has filed a remedy endowed with
suspensive effect and the appeal proceedings are still pending.
In the present case the Salzburg Regional Court sentenced the
applicant on 16 November 1982 to eight years' imprisonment. The
applicant thereupon filed a plea of nullity and an appeal. According
to Sections 284 para. 3 and 294 para. 1 of the Code of Criminal
Procedure, both these remedies are endowed with suspensive effect.
The applicant's conviction and sentence only acquired legal force
under Austrian law on 19 December 1985, on which date the applicant's
detention on remand was transformed into detention following
conviction.
Under Austrian law, the applicant's deprivation of liberty
after the judgment of the Regional Court of 16 November 1982 was
clearly not the result of the conviction because at that time the
latter had not acquired legal force. Rather, the proceedings
concerning the charges against him were then still pending, and the
applicant was still detained on remand for the purpose of appearing
before the court within the meaning of Article 5 para. 3 of the
Convention. In fact, during this period of time the applicant had not
been proved guilty according to law and was therefore to be presumed
innocent within the meaning of Article 6 para. 2 of the Convention.
It cannot therefore be said that the applicant's detention
between 16 November 1982 and 19 December 1985 "resulted from, followed
and depended upon or occurred by virtue of the 'conviction'" of the
Regional Court of 16 November 1982. On the other hand, there was a
"sufficient causal connection" between the judgment of the Supreme
Court dismissing the applicant's plea of nullity and reducing the
sentence on his appeal, and the concomitant sentence which he then
commenced to serve.
It is true that the Court held in its judgment in the Wemhoff
case that Article 5 para. 3 could not lend itself to such an
interpretation for the decisive reason that it "would exclude the
arrest at the hearing of convicted persons who appeared for trial
while still at liberty" (ibid., p. 23f. para. 9). However, I find
that Article 5 para. 1 (c) could equally be invoked when undertaking
such an arrest. In fact, under Austrian law, as long as the
conviction has not acquired legal force such an arrest at the trial
is possible if the grounds for detention on remand according to
Section 180 of the Code of Criminal Procedure are met.
I should also point out the following flaws when applying
Article 5 para. 1 (a) to detention following the first instance
judgment. Let us assume, first, that a person is being prosecuted and
the first instance court acquits him of the charges brought against
him. The Public Prosecutor then appeals against the acquittal. In
this case, under Austrian law - and the same applies for other legal
systems of the continental type - the defendant can be kept in
detention. Here we are clearly faced with detention on remand and
Article 5 para. 3 applies.
Let us assume, second, that a person detained on remand is
convicted in first instance and, upon appeal, acquitted of the charges
brought against him. Here, under domestic law he is a free man, and
on account of the presumption of innocence he will never have been
considered guilty. Yet, if the detention on remand after the first
instance conviction were to fall under Article 5 para. 1 (a), he must
actually be considered as having served a prison sentence!
A further problem arises, if we examine the situation created
by the "Wemhoff-approach" on the national level, taking Austria as an
example. Under the national law of criminal procedure, the applicant
was detained on remand up to 19 December 1985 and he could claim the
specific protection of Article 5 para. 3. Under the Convention,
however, the same detention would fall to be considered under
Article 5 para. 1 (a), and the specific protection of para. 3 would
be lacking. By giving precedence to Convention law over national
law, the authorities could put the applicant in a less favourable
position. This would run contrary at least to the spirit of
Article 60 of the Convention.
As a result I conclude that the applicant's detention on
remand between 16 November 1982 and 19 December 1985 falls to be
considered under Article 5 para. 1 (c) taken together with para. 3
rather than under para. 1 (a) of Article 5 of the Convention.
The entire period of detention on remand to be taken into
account under Article 5 para. 3 of the Convention thus lasted from
1 July 1980 until 19 December 1985, i.e. five years, five months and
18 days.
This period is not reasonable under Article 6 para. 1, and
even less so under Article 5 para. 3.
As a result I come to the conclusion that, in the present
case, there has also been a violation of Article 5 para. 3.
It is true, as the majority of my colleagues imply, that my
approach leads to a certain inequality between different legal
systems. However, such inequality is pre-existent and cannot be
blamed on a specific interpretation of the Convention. On the other
hand, I would find it unacceptable to create uniformity by using the
Convention to lower the level of protection for, e.g., defendants in
Austria.
&SAPPENDIX I&-
HISTORY OF PROCEEDINGS
Date Item
----------------------------------------------------------------------
10 January 1986 Introduction of the application
29 January 1986 Registration of the application
Examination of admissibility
8 July 1986 Commission's deliberations and decision to
invite the Government to submit observations
on the admissibility and merits of the
application
13 October 1986 Government's observations
1 December 1986 Applicant's observations in reply
7 May 1987 Commission's deliberations and decision to
declare the application partly admissible
Examination of the merits
10 October 1987, Commission's consideration of the state
5 March and of proceedings
7 May 1988
12 December 1988 Commission's deliberations on the merits
and final vote
14 December 1988 Adoption of the Report