The Committee of Ministers, under the terms of Article 54 (art. 54)
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter referred to as "the convention"),
Having regard to the judgment of the European Court of Human Rights in
the Can case, delivered on 30 September 1985 and transmitted the same
day to the Committee of Ministers;
Recalling that the case originated in an application against the
Republic of Austria lodged with the European Commission of Human
Rights on 14 April 1981 under Article 25 (art. 25) of the convention
by Mr Elvan Can, a Turkish national, who complained of the duration of
his detention on remand and of the initial supervision of his
consultations with his lawyer;
Recalling that the Commission declared the application admissible on
14 December 1983 and in its report adopted on 12 July 1984 expressed
the opinion, unanimously, that there had been a violation of
Article 6, paragraph 3, sub-paragraph c (art. 6-3-c), of the
convention by reason of the refusal to allow the applicant
unsupervised personal contacts with his lawyer, and, by eleven votes to
one, that the applicant's continued detention on remand constituted a
violation of Article 5, paragraph 3 (art. 5-3), of the convention;
Recalling that the case was brought before the Court by the Commission
on 15 October 1984;
Whereas in its judgment of 30 September 1985 the Court, having taken
formal note of a friendly settlement reached by the Government of
Austria and the applicant and having satisfied itself that there were
no reasons of public policy (ordre public) of a kind which would
necessitate the continuation of the proceedings, decided unanimously
to strike the case out of its list;
Whereas under the above-mentioned friendly settlement it was inter
alia agreed that:
- the applicant would receive lump-sum compensation of
154 336,62 Austrian Schillings, 54 336,62 Austrian Schillings thereof
being intended to cover costs and expenses incurred in the domestic
proceedings;
- the Government would reimburse the applicant for any scale fees
which he might have to pay in Austria for the friendly settlement, as
well as for his costs and expenses in the proceedings before the
European Court of Human Rights and in the negotiations leading to the
friendly settlement if they were not paid under the legal-aid scheme;
- the Government would propose to the legislative assemblies new
rules on the supervision of consultations between a suspect in
detention on remand and his lawyer when there is a danger of
suppression of evidence (Article 45, paragraph 3, of the Code of
Criminal Procedure) and, when so doing, would take account of the
observations of the Commission in its report of 12 July 1984;
Recalling that Rule 48, paragraph 3, of the Court's Rules provides
that the striking out of a case shall be effected by means of a
judgment which the President shall forward to the Committee of
Ministers in order to allow it to supervise, in accordance with
Article 54 (art. 54) of the convention, the execution of any
undertakings which may have been attached to the discontinuance or
solution of the matter;
Having invited the Government of Austria to inform it of the measures
taken for the execution of the undertakings attached to the solution
of the case;
Whereas, during the examination of the case by the Committee of
Ministers, the Government of Austria gave the Committee information
about the measures taken, which information appears in the appendix to
this resolution;
Having satisfied itself that the Government of Austria has paid the
applicant the sums provided for in the friendly settlement,
Declares, after having taken note of the information supplied by the
Government of Austria, that it has exercised its functions under
Article 54 (art. 54) of the convention in this case.
Appendix to Resolution DH (88) 5
Information provided by the Government of Austria
during the examination of the Can case by the Committee of Ministers
1. The Austrian Government has paid the applicant the sums
provided for in the friendly settlement.
2. Article 45, paragraph 3, of the Code of Criminal Procedure has
been amended by the Penal Law Reform Act (Strafrechtsänderungsgesetz)
of 25 November 1987; this Act entered into force on 1 March 1988. The
new legislation takes account of the opinion expressed by the European
Commission of Human Rights in its report of 12 July 1984 concerning
the Can case.
In comparison with the previous position, the supervision of
conversations between, on the one hand, a person in detention because
of danger of collusion and, on the other hand, his defence counsel is
no longer obligatory. Article 45, paragraph 3, as amended, gives the
investigating judge a discretionary power in this regard and at the
same time restricts the possibility of supervision to exceptional
cases.
Prior to communication of the indictment, supervision of the detained
person's conversations with his defence counsel may take place:
- during the first fourteen days of judicial detention; however,
such supervision shall not take place if a risk of collusion as a
result of the conversations can be ruled out;
- after the first fourteen days of judicial detention, if there
are special circumstances which give grounds to fear that a
conversation without supervision might lead to collusion; the
investigating judge's decision in this regard must be reasoned and the
detained person can lodge an appeal against such a decision.