AS TO THE ADMISSIBILITY OF
Application No. 10668/83
by H.E.
against Austria
The European Commission of Human Rights sitting in private on
13 May 1987, the following members being present:
MM. J.A. FROWEIN, Acting President
G. SPERDUTI
M.A. TRIANTAFYLLIDES
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 October 1983
by H.E. against Austria and registered on 12 December 1983 under file
No. 10668/83;
Having regard to:
- the report provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
15 March 1985 and the reply thereto submitted by the applicant
on 22 April 1985;
- the further observations of the applicant submitted on
19 June and 1 December 1986 and 20 March 1987, and of the
Government submitted on 21 and 24 July and 15 December 1986
and 16 April 1987;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant, an Austrian citizen born in 1956, is an
insurance employee resident at L./Austria. Before the
Commission he is represented by Dr. Binder, a lawyer practising in
Linz.
On 6 November 1981 the applicant's wife notified the police of
the behaviour of the applicant's brother. She claimed that the latter
had injured her husband, the applicant, on the same day by pushing him
through a glass door. The applicant himself confirmed this statement
before the police. The applicant's brother denied having pushed the
applicant.
I.
A charge of bodily harm was then brought against the
applicant's brother.
On 7 July 1982 a hearing was held before the District Court
(Bezirksgericht) of Linz-Land during which the applicant was heard as a
witness. In his testimony he stated that on 6 November 1981, in the
course of a dispute between his brother and himself, his brother had
pushed him against a glass door whereupon he, the applicant, had
suffered a severe cut on his hand. The applicant also stated that his
wife had seen these events.
The case was then transferred to the Linz Regional Court
(Landesgericht), where on 27 April 1983 a hearing was held.
The applicant, who was again heard as a witness, then stated
that, upon reflection, he was of the opinion that there were still
other possibilities of how he could have crashed into the glass door.
The applicant was then confronted with his statements of 7 July 1982
and asked to declare whether they were "correct", "incorrect" or
"possible". The applicant now stated with regard to most statements
that they were "possible", but that he was no longer certain.
In answer to the Court's question whether he had actually been
pushed by his brother, he said that he no longer knew. The
procès-verbal of the hearing, which has been certified by the
Regional Court and submitted by the applicant, continues verbatim:
"Witness: 'I regard my statement which I made today
as correct and I uphold it.'
The judge orders: the imposition of temporary custody
(vorläufige Verwahrungshaft) upon the witness (the applicant)
on suspicion of false testimony according to S.288 of the
Austrian Criminal Code in today's hearing, the reasons of
custody being the danger of repetition in case the proceedings
cannot be brought to an end today, and the danger of collusion
in view of the influence which cannot be excluded, upon a
witness who has not appeared today, Mrs. A.E.
At 09.55 hours the witness is temporarily remanded in custody."
In the applicant's submissions the witness Mrs. A.E. was
subsequently not heard.
The applicant was remanded in custody until the next day,
28 April 1983, 14.15 hours. The applicant was then interrogated
by the investigating judge and, after having given a solemn promise
(Gelöbnis), released at 15.00 hours.
On 26 July 1983 the Linz Regional Court acquitted the applicant
of the charge of false testimony. In the submission of the applicant's
representative, this decision was only given orally during the hearing
and not in writing.
II.
On 27 April 1983, after the hearing in which the arrest
occurred, the Regional Court convicted the applicant's brother of
bodily harm and sentenced him to a conditional fine of 54,000 Austrian
Schillings (AS). Upon appeal, the Linz Court of Appeal (Oberlandes-
gericht) quashed the judgment and acquitted the applicant's brother on
15 September 1983. The Court found that there was doubt as to the
exact course of events and that the available evidence was inconclusive,
in particular as during the appeal proceedings all witnesses had availed
themselves of their right as relatives to refuse to give evidence.
III.
The applicant thereupon filed with the Salzburg Regional Court
an official liability action in which he complained, inter alia, that
the temporary custody imposed on him on 27 April 1983 had not complied
with Article 5 para. 1 of the Convention in that it had been illegal
under Austrian law and had served merely as a sanction for his change
of statement.
On 29 November 1985 the Regional Court upheld the action and
awarded him the amount of 7,307.80 AS which included the costs of the
proceedings. The Court found, on the one hand, that at the hearing on
27 April 1983 the judge concerned had correctly assumed a suspicion of
false testimony. On the other hand, the danger of repetition assumed
by the judge had become irrelevant since he had been able to terminate
the proceedings on the same day. Moreover, the view could not be
maintained that there had been a danger of collusion in respect of
Mrs. A.E. since the latter had in fact not been heard and had, as the
wife of the applicant's brother, exercised her right to refuse to
testify already on 7 July 1982 before the Linz District Court. The
mere possibility of a danger of collusion on the applicant's part did
not meet the conditions stated in S.175(3) of the Code of Criminal
Procedure. The Court concluded that official liability presupposed
only light culpability (leichtes Verschulden) and everybody could
claim compensation who had been illegally arrested. It therefore
upheld the applicant's claim.
The appeal (Berufung) against this decision filed by the
Austrian Republic, represented by the Finance Procurator, was
dismissed on 15 April 1986 by the Linz Court of Appeal which found
that the view of the judge who had ordered the applicant's arrest was
indeed untenable. The Court awarded the applicant 1,258.40 AS as
costs for the appeal proceedings.
IV.
Meanwhile, the Attorney General (Generalprokurator) filed
with the Supreme Court (Oberster Gerichtshof) a plea of nullity for
safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des
Gesetzes). This plea of nullity concerned the original decisions of
the Linz Regional Court of 27 April 1983 in particular the grounds
adduced when imposing temporary custody, as well as of the
investigating judge of 28 April 1983. The plea of nullity did not
relate to the official liability proceedings instituted by the
applicant.
On 11 December 1986 the Supreme Court upheld the plea of
nullity. It found, in particular, that in respect of the imposition
of temporary custody according to S.277 of the Code of Criminal
Procedure it was unnecessary to adduce any further grounds of
detention stated in S.175 of the Code. Accordingly, by relying on the
danger of repetition and of collusion as grounds of detention, on
27 April 1983, the judge had violated the law. Moreover, the law had
also been violated in view of the fact that on 28 April 1983 the
investigating judge had released the applicant after the latter had
given a solemn promise. Such a promise was only required in the case
of release from detention on remand whereas in the present case which
concerned temporary custody the conditions for detention on remand,
i.e. the danger of repetition and of collusion, had not been met in
the first place.
COMPLAINTS
1. The applicant complains under Article 5 para. 1 (c) of the
Convention that his temporary custody was illegal. He alleges in
particular that, even in respect of the offence of false testimony
referred to in S.277 of the Code of Criminal Procedure, temporary
custody can only be imposed if one of the further conditions in
S.175(1) of that Code has been met, inter alia, a danger of repetition
or collusion. However, it was logically impossible that there existed
in his case a danger of repetition in view of the fact that he had
already completed his testimony. The danger of collusion was
logically impossible inasmuch as, after he had given testimony at the
hearing, the court closed the proceedings without hearing further
witnesses and later, in its judgment, regarded his testimony as
irrelevant.
2. The applicant also complains under Article 5 para. 1 of the
Convention that, contrary to S.179(1) of the Austrian Code of Criminal
Procedure, he was not brought before the investigating judge within 24
hours. In his case, his custody considerably exceeded this
time-limit.
3. The applicant finally complains under Article 5 para. 4 of the
Convention that there was no remedy, in particular no judicial or
administrative proceedings, available to him under Austrian law which
could have enabled him to have the lawfulness of his custody examined.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 October 1983 and
registered on 12 December 1983.
On 4 December 1984 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on its admissibility and merits
pursuant to Rule 42 para. 2 (b) of the Rules of Procedure.
The Government's observations were submitted on 15 March 1985
and the reply thereto was submitted by the applicant on 22 April 1985.
On 8 July 1985 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application.
On 16 April 1986 the applicant submitted the decision of the
Salzburg Regional Court of 29 November 1985 upholding his official
liability action. Following further submissions of the Government on
22 April 1986 and the applicant on 23 April 1986 the President
decided on 23 April 1986 to cancel the hearing, pending the official
liability appeal proceedings before the Linz Court of Appeal.
Further observations were submitted by the applicant on
19 June and 1 December 1986 and by the Government on 21 and 24 July
and 15 December 1986.
In respect of the decision of the Supreme Court of
11 December 1986 the applicant submitted further observations on
20 March 1987 and the Government on 16 April 1987.
SUBMISSIONS OF THE PARTIES
A. The respondent Governemnt&S
1. The respondent Government examine the issues primarily on the
basis of the English wording of Article 5 para. 1 (c), of the
Convention since, unlike the French version, the English text
explicitly speaks of "the lawful arrest or detention". In the
Government's submissions, this means that the consistency of an act of
arrest or detention with Article 5 para. 1 (c) depends on it being
covered by national legal provisions. For their part these national
legal provisions must keep within the limits of the powers to restrict
the fundamental right to personal liberty admissible under Article 5
para. 1 (c).
S.277 of the Code does not explicitly stipulate as a
prerequisite of arrest the presence of one of the reasons of custody
listed in S.175(1). The latter provision also comprises being caught
in flagrante delicto (S.175(1)(1) of the Code of Criminal
Procedure). This reason of custody is of course always present in
the case contemplated in S.277, which provides sufficient legal cover
for having a witness arrested where there is a probability of false
testimony. The further requirement to bring the witness before the
investigating judge as soon as possible is a sufficient guarantee
against any unjustified prolongation of his detention, because the
investigating judge can only maintain the detention in accordance with
the requirements of S.180 of the Code of Criminal Procedure - as
detention pending investigation - if there is a sufficient reason for
custody, and it must be noted that S.180(2) only lists danger of
absconding (sub-para. 1), danger of collusion (sub-para. 2) and danger
of repetition or perpetration (sub-para. 3) as grounds for detention
pending investigation but does not list being caught in flagrante
delicto, which is enough to justify temporary custody.
Detention under S.277 of the Code of Criminal Procedure, then,
is a lawful arrest effected for the purpose of bringing the prisoner
before the competent legal authority because there is reasonable
suspicion that he has committed an offence. Section 277 of the Code
of Criminal Procedure is therefore consistent with Article 5 para. 1
(c) of the Convention.
2. The Government point out that the applicant has obtained, by
means of an official liability action, a decision of the Salzburg
Regional Court of 29 November 1985, which was confirmed on
15 April 1986 by the Linz Court of Appeal. Thereby these Courts
declared that the imposition of temporary custody had been illegal and
awarded compensation to the applicant. Thus, the applicant can no
longer claim to be a victim, in particular, since the violation of the
Convention has been determined by domestic authorities.
If the Supreme Court on 11 December 1986 found that on
27 April 1983 the judge concerned had adduced further - inexistent -
reasons when imposing temporary custody, this is irrelevant for the
present application since one ground of detention will suffice for a
detention to be lawful. The violation of Austrian law was not
therefore detrimental to the applicant and, accordingly, the
Convention has not been violated.
Nevertheless, the compensation award in the official liability
proceedings has become final, even if it is based on an incorrect view
of the law, as the decision of the Supreme Court demonstrates.
Accordingly, the applicant can no longer claim to be a victim within
the meaning of Article 25 of the Convention.
3. The Government also point out that currently an amendment to
S.277 of the Code of Criminal Procedure is being discussed in
Parliament, according to which the imposition of temporary custody on
account of false testimony should be restricted to the cases of a
danger of collusion and of repetition, as provided for in S.175(1) and
(3) of the Code.
B. The applicant&S
1. The applicant submits that the custody imposed on him
violated SS.175 and 277 of the Code of Criminal Procedure and was
therefore not lawful within the meaning of Article 5 para. 1. of the
Convention. Arrest according to S.277 is only possible if there is a
probability that a witness knowingly gave false testimony. These
criteria were not met in the instant case.
Before the Regional Court the applicant had corrected his
testimony in view of the fact that he had frequently thought about the
occurrences and had looked at the locality where they had happened.
Following these considerations, the applicant was on 27 April 1983 no
longer sure whether he had been pushed by his brother. In this light,
it cannot be said that one of the two statements was incorrect. There
is no indication whatever that the applicant had knowingly, i.e.
against his better knowledge, given an incorrect statement. Yet this
is precisely the condition stated in S.277 of the Code of Criminal
Procedure.
In addition temporary custody may be imposed if an additional
reason in the sense of S.175(1) is given. While the actual text of
the law does not state this expressis verbis, it is the prevailing
view in Austrian doctrine and jurisprudence. In the present case
custody was imposed on the grounds of the danger of collusion and
repetition. Neither danger actually existed.
2. The applicant submits that the official liability action does
not constitute an effective remedy within the meaning of Article 26 of
the Convention. The applicant continues to be a victim within the
meaning of Article 25 of the Convention since it is irrelevant under
this provision if the injustice emanating from the violation amounts
to a concrete damage or disadvantage for the applicant. In particular
he continues to remain a victim in view of the temporary custody which
was imposed on him. The compensation which has been awarded does not
change this. If the Supreme Court on 11 December 1986 decided that
temporary custody on account of false testimony as in S.277 of the
Code of Criminal Procedure could be imposed regardless of the further
conditions in S.175 of the Code, this would mean that it would fall to
the court's discretion whether or not to impose temporary custody.
This however would be contrary to Article 5 para. 1 (c) of the
Convention.
THE LAW
1. The applicant has complained under Article 5 para. 1 (Art.
5-1) of the Convention that his temporary custody was illegal. He
alleges in particular that S.175(1) of the Code of Criminal Procedure
was incorrectly applied inasmuch as it was logically impossible that
there existed in his case a danger of repetition or of collusion. As
regards the decision of the Regional Court of 29 November 1985
awarding him compensation, he submits that the official liability
action which he brought does not qualify as a remedy within the
meaning of Article 26 (Art. 26) of the Convention. Moreover, it is
irrelevant under Article 25 (Art. 25) of the Convention whether the
injustice emanating from the violation results in a concrete damage or
disadvantage for the applicant since he continues to remain a victim
in view of the illegal custody imposed on him.
The Government have submitted that the applicant can no longer
claim to be a victim within the meaning of Article 25 (Art. 25) of the
Convention since as a result of his official liability action he has
received compensation by the Austrian Courts for his temporary
custody. This award has become final and is not affected by the
decision of the Supreme Court of 11 December 1986.
Under Article 25 para. 1 (Art. 25-1) of the Convention the Commission
"may receive petitions ... from any person ... claiming to be a victim of the
rights set forth in (the) Convention".
The Commission recalls its case-law according to which it
falls first to the national authorities to redress any alleged
violation of the Convention. As in many cases the violation itself
can no longer be wiped out with retroactive effect, only reparation
will be possible. Such a reparation may then constitute a means
whereby a State can redress the alleged violation of the Convention
(see No. 5575/72, X. v. Austria, Dec. 8.7.75, D.R. 1 p. 45).
In this regard, the question whether or not an applicant can
claim to be a victim under Article 25 (Art. 25) of the Convention of the
violation alleged is relevant at all stages of the proceedings under
the Convention (cf. Preikhzas v. the Federal Republic of Germany,
Comm. Report 13.12.78, para. 84, D.R. 16 p. 16).
In the present case the Commission notes that the applicant
filed before the Salzburg Regional Court an official liability action
against the Republic of Austria on the ground that his custody had
been illegal and had served merely as a sanction for his change of
statement. The Court upheld his action on 29 November 1985 and
awarded him the amount of 7,307.80 AS which included the costs of the
proceedings. This decision was confirmed by the Linz Court of Appeal
on 15 April 1986 which awarded the applicant 1,258.40 AS as costs for
the appeal proceedings.
The Salzburg Regional Court found in particular that the mere
possibility of a danger of collusion on the applicant's part did not
meet the condition for detention mentioned in S.175(1)(3) of the Code
of Criminal Procedure, and that everybody who underwent an illegal
detention was entitled to compensation. The Linz Court of Appeal held
that the view of the judge who had ordered the applicant's arrest was
untenable.
It is true that the Supreme Court found on 11 December 1986,
inter alia, that in respect of the imposition for temporary custody on
the applicant according to S.277 of the Code of Criminal Procedure it
was unneccessary to adduce any further grounds of detention stated in
S.175 of the Code. However, the Commission notes that this decision
concerned the original decisions of the Linz Regional Court of
27 April 1983 and of the investigating judge of 28 April 1983. The
decision of the Supreme Court did not relate to the official liability
proceedings resulting in the decisions of the Salzburg Regional Court
of 29 November 1985 and of the Linz Court of Appeal of 15 April 1986.
The latter decisions are final.
As a result, the applicant has, by employing domestic remedies
available to him, received compensation for the alleged violation. In
addition, he has obtained the satisfaction that the national courts
found his custody illegal under domestic law.
In these circumstances, the Commission considers that the
applicant has obtained adequate redress at the domestic level for the
violations which he now alleges before the Commission. The Commission
concludes that the applicant can therefore no longer claim to be a
victim of the alleged violations within the meaning of Article 25
(Art. 25) of the Convention (see mutatis mutandis Nos. 5577-5583,
Dec. 15.12.75, D.R. 4 p. 4).
It follows that the application is in this respect manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant has also complained under Article 5 para. 1
(Art. 5-1) of the Convention that his custody was illegal under
Austrian law insofar as he was not brought before the investigating
judge until 28 hours after temporary custody was imposed on him, and
not within 24 hours as required by S.179(1) of the Code of Criminal
Procedure.
The Commission notes that the Regional Court on
29 November 1985 and the Court of Appeal on 15 April 1986 both
referred to this complaint, while apparently not entering into it
independently of the complaint concerning the grounds for the
applicant's detention. An issue arises therefore whether also in
respect of this complaint the applicant can claim to be a victim
within the meaning of Article 25 (Art. 25) of the Convention. The
Commission nevertheless decides not to resolve this issue since this
complaint is in any event manifestly ill-founded for the following
reaons:
According to S.179(1) of the Code of Criminal Procedure an
accused must be brought within 24 hours before the investigating
judge. S.179(1) continues:
"If this is not possible, the accused may remain temporarily
in custody, but his interrogation must take place as soon as
possible, at the latest within three days, and the reasons
for which the interrogation could not take place must be
stated in the minutes."
The applicant's custody which lasted 28 hours thus
uncontestedly fell within the limits of this part of S.179(1).
Moreover, the applicant has not complained that no reasons for the
delay were stated in the minutes.
As a result, the complaint at issue does not dislose any
appearance of a violation of the rights set out in Article 5 para. 1
(Art. 5-1) of the Convention. It follows that the application is also
in this respect manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
3. The applicant has complained under Article 5 para. 4 (Art.
5-4) that there is no remedy under Austrian law which would have
enabled him to have the lawfulness of his custody examined.
The Commission has just found that the applicant has received
compensation by a decision of the Salzburg Regional Court which was
confirmed by the Linz Court of Appeal and that he therefore could no
longer claim to be a victim in respect of the alleged unlawfulness of
his temporary custody under Article 5 para. 1 (Art. 5-1) of the Convention.
Even assuming that an issue arises under Article 5 para. 4 (Art. 5-4) of the
Convention, the Commission finds that for the same reason the applicant can in
respect of the present complaint also no longer claim to be a victim of the
alleged violation within the meaning of Article 25 (Art. 25) of the Convention.
It follows that also in this respect 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
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J.A. FROWEIN)