AS TO THE ADMISSIBILITY OF
Application No. 19569/92
by E.A.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 13 October 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
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 22 November 1991
by E.A. against Austria and registered on 2 March 1992 under file No.
19569/92 ;
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 they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1964, is an Austrian national. When
lodging his application, he was detained in the prison at the Salzburg
Regional Court (Landesgerichtliches Gefangenenhaus). Before the
Commission he is represented by Mr. G. Mory, a lawyer practising in
Salzburg. Mr. Mory was the applicant's defence counsel in the criminal
proceedings set out below.
A. The particular circumstances of the case
On 3 December 1990 the applicant was arrested by officers of the
Salzburg Federal Police Department (Bundespolizeidirektion) on the
basis of a warrant of arrest issued by the Salzburg Regional Court
(Landesgericht) on the same day. According to the warrant of arrest
there was a reasonable suspicion that the applicant had committed rape
of a woman and forced her to acts of sexual indecency early in the
morning. Having regard to the applicant's previous convictions, his
apparent sexual abnormality and propensity to violence, there was a
danger of repetition.
On 4 December 1990 the applicant was questioned at the Police
Department, where he admitted that he had forced the victim to acts of
sexual indecency, but denied the rape.
On 6 December 1990 the Investigating Judge at the Salzburg
Regional Court informed the applicant that preliminary investigations
(Voruntersuchung) had been instituted against him. He heard the
applicant on the charges against him. The applicant confirmed his
earlier statements and indicated in particular that, due to his
consumption of alcohol before the events in question, he could not well
remember details. The Investigating Judge ordered the applicant's
detention on remand.
On 11 December 1990 the Investigating Judge appointed the
forensic expert Prof. M. to prepare an opinion on the question of the
applicant's criminal responsibility at the time of the offences in
question, his state of drunkenness, and on the necessity to detain him
in a mental hospital or an institution for alcoholics. He was further
invited to prepare an opinion on the injuries, as well as psychological
damage, suffered by the victim.
The expert submitted his opinion on the questions relating to the
applicant on 21 December 1990. The report was based on the criminal
files and the reports of the Salzburg mental hospital, as well as a
psychiatric examination of the applicant. The expert Prof. M.,
assisted by Dr. D., concluded that the applicant was an alcoholic, that
he could not be held responsible for criminal offences at the time in
question and that the conditions for committing him to an institution
for alcoholic offenders were met.
On 18 January 1991 the expert Prof. M. amended his opinion as
regards the question whether the applicant was not criminally
responsible at the time of the offence in question, irrespective of his
state of drunkenness. The expert denied this question. However, he
stated that the offence resulted from a serious psychiatric
abnormality.
On 30 January 1991 Prof. M. informed the Investigating Judge that
the victim preferred not to be examined. For the time being, he had
therefore not prepared an opinion in this respect.
Following doubts raised by the Public Prosecutor's Office
(Staatsanwaltschaft) as to the opinion prepared by Prof. M., the
Investigating Judge had appointed Prof. K. to prepare a supplementary
opinion, which was submitted on 27 February 1991. Prof. K., having
inspected the files and examined the applicant on 7 February 1991,
concluded that the applicant's criminal responsibility was not excluded
from a medical point of view. A lack of criminal responsibility due
to alcohol intoxication was not likely, but could not be excluded. He
also considered that the applicant suffered from serious psychiatric
abnormality.
On 12 April 1991 the Investigating Judge requested Prof. K. to
amend his expert opinion. The amendment was received on 8 May 1991.
On 22 May 1991 the Linz Court of Appeal (Oberlandesgericht), upon
the Public Prosecutor's request of 3 May 1991, decided, in private
session, to extend the maximum duration of the applicant's detention
on remand to eight months. The Court of Appeal, referring to S. 193
para. 4, S. 180 paras. 1 and 2 of the Austrian Code of Criminal
Procedure (Strafprozeßordnung), considered that there was a reasonable
suspicion that the applicant had committed in particular rape. The
reasons to assume a danger of repetition persisted. The investigations
were particularly difficult as regards the question of the applicant's
criminal responsibility at the time of the offence in question, which
was assessed differently by two experts. Furthermore, the question of
the applicant's detention in an institution for alcoholics had to be
clarified.
On 12 June 1991 the Judges' Chamber (Ratskammer) at the Salzburg
Regional Court dismissed the applicant's request for release from
detention on remand (Haftbeschwerde). The Judges' Chamber found that,
having regard to the result of the investigations, in particular the
testimony of the victim and the statements of the applicant partly
admitting his guilt, there was a reasonable suspicion that he had
committed the offences concerned. The Judges' Chamber, noting the
applicant's previous convictions of inter alia rape, robbery and theft,
coercion and fraud, as well as his alcoholism and abnormal personality,
further considered that there was a risk of repetition and that he
could not be released subject to conditions.
On 24 June 1991 the expert Prof. M., upon the request of the
Investigating Judge, submitted a further supplementary opinion. He
confirmed in particular his earlier conclusions. Taking into account
the opinion of Prof. K., he explained in particular his conclusion that
the applicant had not been criminally responsible at the time of the
offences in question.
On 10 July 1991 the Linz Court of Appeal, in private session,
extended the maximum duration of the detention on remand to eleven
months. The Court of Appeal considered the strong suspicion against
the applicant and the risk of a repetition of offences. The Court of
Appeal noted that the Investigating Judge, in his request for
prolongation dated 1 July 1991, had indicated the necessity of
requesting a faculty opinion (Fakultätsgutachten). The Court of Appe
suggested that beforehand, the expert Prof. K. should be informed about
the opinion of Prof. M. and that both experts be summoned to appear
before the Investigating Judge in order to supplement their opinions
orally.
On 5 August 1991 the Investigating Judge heard both experts.
They agreed that the applicant had been under the influence of alcohol
at the time of the offences in question; that an alcohol intoxication
was unlikely; that further criminal acts with more than light
consequences had to be expected; that the applicant's serious
psychiatric abnormality did not, as such, exclude his criminal
responsibility. Prof. M. concluded that the applicant had an abnormal
reaction due to his alcohol consumption which excluded his criminal
responsibility. Prof. K. considered this to be unlikely, but not
impossible. The Investigating Judge decided that an opinion on this
question had to be prepared by the Faculty of Medicine at the Graz
University.
On 31 October 1991 the Linz Court of Appeal, sitting in private,
extended the maximum duration of the detention on remand to fifteen
months. The Court of Appeal referred to the strong suspicion against
the applicant and the danger of repetition. The Court of Appeal found
that particular problems had been caused in the course of the
investigations due to the divergent expert opinions on the question of
the applicant's criminal responsibility, which had necessitated the
request for a faculty opinion. The preparation of such an opinion
would take, according to the statement of the Director of the Faculty
of Medicine, at least two months following submission of the criminal
files. Having regard to the further course of the proceedings until
the trial against the applicant, a prolongation of the detention on
remand up to fifteen months appeared appropriate.
On 14 November 1991 the Investigating Judge at the Salzburg
Regional Court submitted his request for a faculty opinion, together
with the criminal files, to the Faculty of Medicine at the Graz
University.
On 28 January 1992 Prof. K., the Dean of the Faculty of Medicine,
submitted the faculty opinion which had been prepared by Prof. Z., and
was also signed by Prof. K. and by Prof. L., who was the Chairman of
the Committee dealing with faculty opinions. According to the faculty
opinion there had been no abnormal reaction to the alcohol consumption
which could have excluded the applicant's criminal responsibility. The
opinion confirmed that the applicant ought to be detained in an
institution for mentally abnormal criminals.
On 12 February 1992 the Linz Court of Appeal, in private session,
extended the maximum period of the applicant's detention on remand to
seventeen months. The Court of Appeal, referring to the strong
suspicion against the applicant and the danger of repetition, found
that particular problems had been caused in the course of the
investigations due to the divergent expert opinions on the question of
the applicant's criminal responsibility, which had necessitated the
preparation of a faculty opinion. Having regard to the further course
of the proceedings until the trial against the applicant, a
prolongation of the detention on remand up to seventeen months appeared
appropriate.
On 25 February 1992 the Salzburg Public Prosecutor's Office
preferred the indictment (Anklageschrift) against the applicant
charging him with rape and coercion. It was received by the Regional
Court on 3 March 1992.
The trial against the applicant opened before the Salzburg
Regional Court on 12 March 1992, it continued on 4 May and 10 July
1992.
On 10 July 1992 the Salzburg Regional Court convicted the
applicant of rape and attempted coercion. It sentenced the applicant
to five years' imprisonment. The period of his detention on remand was
counted towards his sentence. Furthermore, the applicant's detention
in an institution for mentally abnormal criminals was ordered.
B. Relevant domestic law
Under S. 180 paras. 1 and 2 of the Code of Criminal Procedure,
a person may be held in detention on remand - where there are serious
grounds for suspecting him of having committed a criminal offence - if
there is a risk of his absconding, of collusion or of repetition of the
offences.
According to S. 193, detention may not last more than two months
if it is based only on the danger of collusion, or more than six months
if it is based on the other reasons.
The second-instance court may however, if the investigating judge
or the prosecuting authorities so request and if the complexity or
scope of the investigation makes it necessary, extend the detention up
to a maximum of three months in the case of suspected collusion, and
one year where the other grounds are relied on, or even two if the
sentence risked exceeds five years. In exercising this power the
appellate court sits in private session in the absence of the detainee
and his lawyer; it gives the principal public prosecutor's office the
opportunity to make submissions.
Detention founded on a reason other than the risk of collusion
alone is subject to no time-limit as soon as the trial has begun.
The accused may lodge an application for release at any time
(S. 194 para. 2). Under S. 194 and 195, such an application is to be
examined by the Judges' Chamber (Ratskammer) of the Regional Court in
a private hearing, in the presence of the accused and his lawyer.
COMPLAINTS
1. The applicant complains under Article 5 para. 3 of the Convention
about the length of his detention on remand. He considers that the
course of the proceedings relating to the appointment of the two
medical experts to prepare opinions on the question of his criminal
responsibility as well as the order of a faculty opinion could not be
objected to. However, the decision of the Court of Appeal of
31 October 1991 further to prolong his detention on remand was
disproportionate.
2. The applicant complains under Article 5 para. 4 of the Convention
that the Linz Court of Appeal did not hear him or his defence counsel
on the requests of the Public Prosecutor to prolong his detention on
remand. He submits that there was no possibility to have the
lawfulness of these decisions on prolongation reviewed by a higher
tribunal. He considers that, as a consequence, his continued detention
was unlawful and contrary to Article 5 para. 1 (c) of the Convention.
He also invokes Article 6 para. 1 of the Convention in this respect.
3. In his submissions of 24 June 1993, the applicant further
complains under Article 6 para. 1 of the Convention about the length
of the criminal proceedings against him.
THE LAW
1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the
Convention about the length of his detention on remand.
Article 5 para. 3 (Art. 5-3), so far 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."
The applicant was arrested on 3 December 1990. His detention on
remand within the meaning of Article 5 para. 3 (Art. 5-3) of the
Convention terminated on 10 July 1992 when he was convicted at first
instance (cf. Eur. Court H.R., B. v. Austria judgment of 28 March 1990,
Series A no. 175, pp. 14-16, paras. 36-38). The period to be taken
into consideration thus lasted one year, seven months and one week.
The Commission recalls that it is in the first place for the
national authorities to ensure that, in a given case, pre-trial
detention of an accused person does not exceed a reasonable time. To
this end, they must examine all the facts arguing for or against the
existence of a genuine requirement of public interest justifying, with
due regard to the principle of the presumption of innocence, a
departure from the rule of respect for individual liberty and set them
out in their decisions on the question of release. It is essentially
on the basis of the reasons given in these decisions and of the true
facts mentioned by the applicant in his appeals, that the Convention
organs are called upon to review the reasonableness of the length of
detention (cf. Eur. Court H.R., Toth judgment of 12 December 1991,
Series A no. 224, p. 18, para. 67; W. v. Switzerland judgment of
26 January 1993, para. 30, to be published in Series A no. 254).
The persistence of reasonable suspicion that the person arrested
has committed an offence is a conditio sine qua non for the validity
of the continued detention, but, after a certain lapse of time, it no
longer suffices; the Convention organs must then establish whether the
other grounds cited by the judicial authorities continue to justify the
deprivation of liberty, and whether the domestic authorities displayed
special diligence in the conduct of the proceedings (cf. Eur. Court
H.R., Toth judgment, loc. cit.; W. v. Switzerland judgment, loc. cit.).
The Linz Court of Appeal, referring to the investigations and the
applicant's own statements, found that there was a reasonable suspicion
that he had committed the offences in question. This view was shared
by the Judges' Chamber at the Salzburg Regional Court upon the review
of the applicant's detention on remand. Their findings that there was
a risk of repetition was based on the applicant's previous convictions,
his alcoholism and abnormal personality, and appears reasonable in the
circumstances (cf. Eur. Court H.R., Toth judgment, loc. cit., p. 19,
para. 17). The applicant's continued detention was thus based on
sufficient and relevant grounds.
As regards the conduct of the proceedings by the domestic
authorities, the applicant accepts the course of the investigations
relating to the appointment of the two medical experts as well as the
court order of a faculty opinion.
The Commission notes that the preliminary investigations started
in December 1990. The Public Prosecutor's Office preferred the
indictment on 25 February 1992 and it was received at the Regional
Court on 3 March 1992. The trial before the Salzburg Regional Court
started on 12 March 1992 and was continued on 4 May and 10 July 1992,
when the applicant was convicted of rape and coercion and sentenced to
five years' imprisonment, and his detention in an institution for
abnormal psychiatric criminals was ordered.
The Linz Court of Appeal, when ordering further extensions of the
maximum period of detention on remand on 22 May, 10 July, 31 October
1991 and 12 February 1992, examined the progress of the criminal
proceedings against the applicant and considered the question of
reasonableness of the respective prolongation.
The length of the preliminary investigations, namely one year and
three months, may at first sight appear excessive, given the testimony
of the victim and the statements of the applicant partly admitting his
guilt. However, the questions of the applicant's criminal
responsibility at the time of the offences concerned and of his
detention in a particular institution for mentally abnormal criminals
required the taking of expert evidence, including the preparation of
a faculty opinion, as the two other experts had expressed divergent
views.
The Commission recalls that the right of the accused in detention
to have his case examined with particular expedition must not hinder
the efforts of the prosecution authorities to carry out their tasks
with proper care (cf. Eur. Court H.R., Tomasi judgment of 27 August
1992, Series A no. 241-A, p. 39, para. 102; W. v. Switzerland judgment,
loc. cit., para. 42).
The Commission finds that there were no delays in the appointment
of the medical experts, Prof. M. and Prof. K., nor in the delivery of
their opinions or amendments thereto until 5 August 1991, when the
Investigating Judge decided that a faculty opinion was necessary.
The preparation of the faculty opinion could in fact only start
in the second half of November 1991, due to the late submission of the
request and files to the Faculty of Medicine. The only other
procedural step within this period of time, i.e. the request for an
extension of the applicant's detention on remand decided upon by the
Linz Court of Appeal on 31 October 1991, cannot explain this lapse of
time. The faculty opinion was submitted on 28 January 1992.
The Commission considers that the Austrian authorities acted with
the necessary diligence in their handling of the applicant's case,
except the period of three and a half months between the decision on
requesting an faculty opinion, and its actual transmission, with the
criminal files, to the Faculty concerned, for which there is no obvious
explanation. However, the Commission finds that this period could be
regarded as acceptable if viewed in the context of the total duration
of the applicant's detention on remand.
Consequently, the length of the applicant's detention on remand
does not appear to be unreasonable for the purposes of Article 5 para.
3 (Art. 5-3) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 5 para. 4 (Art. 5-4) of the
Convention that the Linz Court of Appeal did not hear him or his
defence counsel on the requests to prolong his detention on remand.
He submits that there was no possibility to have the lawfulness of
these decisions reviewed by a higher tribunal. He considers that, as
a consequence, his continued detention was unlawful and contrary to
Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. He also invokes
Article 6 para. 1 (Art. 6-1) of the Convention in this respect.
Article 5 para. 4 (Art. 5-4), provides that "everyone who is
deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention
is not lawful".
The Commission notes that, in accordance with the relevant
provisions of the Austrian Code of Criminal Procedure, the applicant
could take proceedings before the Judges' Chamber at the Salzburg
Regional Court to have the lawfulness of his detention on remand
reviewed. He availed himself of this right in June 1991, and he did
not show that this review did not comply with the requirements under
Article 5 para. 4 (Art. 5-4) of the Convention.
As regards the proceedings before the Linz Court of Appeal
concerning the decisions on extension of the maximum period of the
applicant's detention on remand, the Commission recalls that, in these
circumstances, the appellate court does not itself decide upon the
appropriateness or the necessity of keeping the accused in prison or
releasing him, nor does it undertake a review of the "lawfulness of the
detention". It confines itself to setting out a framework within which
the investigating judge or the prosecuting authority is free to take
decisions. Article 5 para. 4 (Art. 5-4) does not, therefore, apply to
the proceedings in question (cf. Eur. Court H.R., Toth judgment, loc.
cit., pp. 23-24, paras. 86-87).
Therefore, no issues arise under Article 5 para. 1 and Article 6
para. 1 (Art. 5-1, 6-1) in this respect.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. In his submissions of 24 June 1993 the applicant further
complains under Article 6 para. 1 (Art. 6-1) of the Convention about
the length of the criminal proceedings against him.
The Commission notes that the applicant was detained on remand
throughout the course of the criminal proceedings against him which
terminated with his conviction at first instance. Even assuming that
the applicant lodged this complaint under Article 6 para. 1 (Art. 6-1)
within the period of six months, as required under Article 26
(Art. 26) of the Convention, there is no appearance of a violation of
his right to trial "within a reasonable time", for the reasons set out
with regard to his complaint under Article 5 para. 3 (Art. 5-3) about
the length of his detention on remand.
Consequently, this part of the application is likewise 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) (A. WEITZEL)
Full & Egal Universal Law Academy