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 Toth case delivered on 12 December 1991 and
transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application against
Austria lodged with the European Commission of Human Rights on
12 October 1985 under Article 25 (art. 25) of the Convention by
Mr Stefan Toth, an Austrian national, who complained on the one
hand of the length of his pre-trial detention and on the other
hand that the proceedings before the Court called on to rule on
his release were not adversarial;
Recalling that the case was brought before the Court by the
Commission on 15 October 1990 and by the Government of Austria
on 18 December 1990;
Whereas in its judgment of 12 December 1991 the Court:
- held unanimously that there had been a violation of
Article 5, paragraph 3 (art. 5-3);
- dismissed unanimously the preliminary objection raised by
the Government concerning the complaint on the proceedings in the
Court of Appeal for the examination of Mr Toth's applications for
release;
- held by eight votes to one that there had been a violation
of Article 5, paragraph 4 (art. 5-4), inasmuch as those
proceedings were not adversarial;
- held by eight votes to one that Article 5, paragraph 4
(art. 5-4), did not apply to the proceedings in the Court of
Appeal concerning the extensions of the applicant's pre-trial
detention;
- held unanimously that the respondent state was to pay to
the applicant, within three months, 7 853,40 Austrian schillings
in respect of costs and expenses;
- dismissed unanimously the remainder of the claim for just
satisfaction;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of
the Convention;
Having invited the Government of Austria to inform it of the
measures which had been taken in consequence of the judgment of
12 December 1991, having regard to its obligation under
Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of Austria gave the Committee
information about the measures taken in consequence of the
judgment, which information appears in the appendix to this
resolution;
Having satisfied itself that the Government of Austria has
paid the applicant the sum provided for in the judgment,
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 (93)4
Information provided by the Government of Austria
during the examination of the Toth case
by the Committee of Ministers
A bill amending the Code of Criminal Procedure in order to
take into account the findings of the Court in the present case
was brought before Parliament in January 1993.
Pending entry into force of this act, the Minister of
Justice already invited, via a circular (Erlass) dated
5 October 1992, the presidents of the courts and the principal
public prosecutors to take the necessary measures in order to
avoid situations in the future such as the one that led in the
present case to findings of violations of paragraphs 3 and 4 of
Article 5 (art. 5-3, art. 5-4) of the Convention.
The circular indicates that pending deletion of Section 35,
paragraph 2, of the Code of Criminal Procedure, members of the
principal public prosecutors' office are invited not to use the
right that this provision confers upon them to participate in the
hearing before second instance courts, as it is not possible for
the accused to be heard.
The circular also provides that, in order to avoid delays
in the investigation of criminal cases due to the transmission
to appellate or other courts of the original file, the competent
investigation authorities must in future, before transmission,
make a photocopy of the file or the relevant parts thereof, at
least in those cases where the person charged is in detention.
The sum awarded in respect of costs and expenses was paid
on 11 February 1992.
Full & Egal Universal Law Academy