AS TO THE ADMISSIBILITY OF
Application No. 23672/94
by Dragan DUMANCIC
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 November 1993
by Dragan DUMANCIC against Austria and registered on 14 March 1994
under file No. 23672/94;
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 1962, was a citizen of former Yugoslavia
and is residing in Vienna. In the proceedings before the Commission he
is represented by Mr. K. Bernhauser, a lawyer practising in Vienna.
On 27 July 1991 the applicant, upon an arrest warrant of the
Vienna Regional Criminal Court (Landesgericht für Strafsachen), was
taken in detention on remand at the Hirtenberg prison, which is
situated outside Vienna.
On 5 December 1991 the Vienna Regional Court acquitted the
applicant and ordered the officers of the prison authorities (Justiz-
wachebeamte) at 10.45 a.m. that he be released. Subsequently, the
applicant was held in the guard-room of the Regional Court's prison
until the trials of two other prisoners had ended. At 12.15 p.m. a
transport with the applicant and these two prisoners left the Regional
Court and arrived at the Hirtenberg prison at 1.30 p.m. After having
collected his personal belongings, the applicant came to the so called
reception room at 2.10 p.m. Subsequently, the payment of some
administrative fines was settled and he was released at 2.45 p.m.
On 9 January 1992 the applicant lodged a complaint (Beschwerde)
with the Vienna Independent Administrative Tribunal (Unabhängiger
Verwaltungssenat). He submitted in particular that his detention on
5 December 1991 between 10.45 a.m., when the Court ordered his release,
and 2.45 p.m., when he was actually released, was unlawful and violated
his right to liberty. In these and the subsequent proceedings the
applicant was represented by counsel.
On 14 September 1992 the Vienna Independent Administrative
Tribunal rejected the applicant's complaint as regards his detention
on 5 December 1991 between 10.45 a.m. and 2.10 p.m, but declared that
his further detention between 2.10 and 2.45 p.m. had been unlawful.
As regards the period between 10.45 a.m. and 2.10. p.m., the
Independent Administrative Tribunal found that a court order to release
a prisoner on remand did not mean that he had to be released on the
spot, but that the necessary steps for his release had to be taken
without delay. During this short transitional period, the court order
served as a legal basis for the detention. The Hirtenberg prison, where
the applicant had been held in detention on remand, was between forty-
five minutes' and two and a half hours' drive from the Vienna Regional
Court, depending on the weather and traffic conditions. In these
circumstances, it was justified to organise "collective transports" of
a number of prisoners, if this could be done within reasonable time.
The waiting time before the departure from the Regional Court at
12.15 p.m. was not yet unreasonable. However, advance notice of the
applicant's acquittal should have been given to the prison authorities
and the release formalities should have been concluded after he had
collected his personal belongings at 2.10 p.m. Until this time his
detention was still covered by the Regional Court's order.
As regards the period between 2.10 and 2.45 p.m., the Independent
Administrative Tribunal found that the applicant's detention served in
particular to settle the payment of some administrative fines. However,
it was no more covered by the Regional Court's order and there was no
other legal basis for it. Thus, this part of the applicant's detention
was unlawful.
On 28 October 1992 the applicant lodged a complaint with the
Administrative Court (Verwaltungsgerichtshof). He contested the opinion
of the Independent Administrative Tribunal that the delay between
10.45 a.m. and 2.10 p.m. was still reasonable. He submitted in
particular that the prison authorities would have been obliged to carry
out the release formalities at the prison of the Vienna Regional
Criminal Court or to transfer him immediately to the Hirtenberg prison
without waiting for other prisoners.
On 16 September 1993 the Administrative Court dismissed the
applicant's complaint. It found that the Independent Administrative
Tribunal had rightly assumed that the release formalities had to be
carried out at the prison where the applicant had been held in
detention on remand. Further, the Court confirmed that a delay of one
hour and a half in order to organise a "collective transport" of
several prisoners was justified with a view to the duration of the
drive. Thus, the court's release order had not been exceeded.
COMPLAINTS
The applicant complains under Article 5 of the Convention that
his detention until 2.10 p.m. on 5 December 1991, following the
Regional Court's order of 10.45 a.m. to release him, was unlawful. He
submits that this detention was not justified, as the prison
authorities would have been obliged to carry out the release
formalities at the prison of the Vienna Regional Criminal Court or to
transfer him immediately to the Hirtenberg prison.
THE LAW
The applicant complains under Article 5 (Art. 5) that his
detention on 5 December 1991, following the Regional Court's order to
release him, was unlawful.
Article 5 (Art. 5), so far as relevant, reads as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed and offence or when it
is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so;
The Commission recalls that, as regards the question whether a
detention is "lawful", including whether it complies with "a procedure
prescribed by law", the Convention refers back essentially to national
law and lays down the obligation to conform to the substantive and
procedural rules thereof. However, it requires in addition that any
deprivation of liberty should be consistent with the purpose of
Article 5 (Art. 5), namely to protect individuals from arbitrariness
(see Eur. Court H.R., Wassink judgment of 27 September 1990, Series A
no. 185-A, p. 11, para. 24). As regards the execution of a decision
ordering the release of a detainee, the Court has acknowledged that
some delay is understandable (see Eur. Court H.R. Quinn judgment of
22 March 1995, para. 42, Series A no. 311).
In the present case, the Vienna Regional Criminal Court on
5 December 1991 at 10.45 a.m. ordered the applicant's release. However,
the execution of the release order took until 2.45 p.m. Part of this
period, namely the time as of 2.10 p.m. was, in course of domestic
appeal proceedings, found to be unlawful. The question before the
Commission is, therefore, whether the applicant's detention during the
remaining period between 10.45 a.m. and 2.10 p.m. can still be regarded
as a lawful execution of the Regional Court's above-mentioned order.
The applicant complains in particular that the authorities would have
been obliged to carry out the release formalities at the prison of the
Vienna Regional Criminal Court or to transfer him immediately to the
Hirtenberg prison.
The Vienna Independent Administrative Tribunal found that a court
order to release a prisoner on remand still served as a legal basis for
the short transitional period until his actual release, provided that
the necessary steps were taken without delay. Further, the
Administrative Court held that, in the applicant's case, it was correct
to carry out the release formalities at the Hirtenberg prison, where
he had been detained. With a view to the distance between the Regional
Court and the Hirtenberg prison, it was justified to organise a
"collective transport" of several prisoners, which in the applicant's
case caused a waiting period of one and a half hours between 10.45 a.m.
and 12.15 p.m. Finally, the Commission notes that the remaining time
was needed for the transfer itself, which took until 1.30 p.m. and the
release formalities, which took until 2.10 p.m. In these circumstances,
the applicant's detention until 2.10 p.m., following the Regional
Court's order to release him, was lawful within the meaning of
Article 5 para. 1 (Art. 5-1) of the Convention. There is no indication
of arbitrariness in the conduct of the authorities.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy