AS TO THE ADMISSIBILITY OF
Application No. 22715/93
by E. G.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, 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
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 19 August 1993 by
E. G. against Austria and registered on 30 September 1993 under file
No. 22715/93;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the Commission's decision of 17 January 1995 to
communicate the application as regards the applicant's complaint
concerning his alleged arrest during the hearing of 6 May 1992 before
the Vienna Regional Criminal Court and to declare the applicant's other
complaints inadmissible;
Having regard to the observations submitted by the respondent
Government on 6 April 1995 and the observations in reply submitted by
the applicant on 31 May 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1954, is an Austrian national. He is a
lawyer by profession, residing and practising in Vienna.
A. The particular circumstances of the case
The facts of the case, submitted by the parties with regard to
the remaining part of the application, may be summarised as follows.
On 6 May 1992 the Vienna Regional Criminal Court (Landesgericht)
held a hearing concerning charges of intimidation (Nötigung), assault
(Körperverletzung) and cruelty to animals (Tierquälerei) against the
applicant, relating to an incident in road traffic in June 1991.
After the court had heard the applicant, several witnesses and
two experts, the applicant requested to be assisted by counsel. The
judge rejected this request on the ground that the applicant was
experienced enough to present his defense. As regards the following
events, the parties are in dispute:
The applicant states that the judge subsequently also refused to
let him use the telephone in the courtroom to call a counsel.
Therefore, he went to the door, opened it a bit and lent outside to ask
a colleague, who was waiting there, to call a counsel for him.
Thereupon, the judge, by setting off an alarm, called a security
officer (Justizwachebeamter), whom he instructed to sit in the
courtroom next to the door and to arrest the applicant, should he again
try to leave. The security officer remained there until the hearing
ended two and a half hours later.
According to the Government, the applicant left the courtroom,
after his request to be represented by counsel had been rejected. The
judge, concluding from the applicant's behaviour that he might abscond
from the whole proceedings, told him to come back to the courtroom and
threatened him with arrest. Since the applicant did not obey the
judge's order, the latter alerted the security service. Only then the
applicant came back to the courtroom. When the security officer
appeared, the judge told him to wait outside the courtroom in order to
be ready should an arrest be necessary. Well before the end of the
hearing, the judge told him that he was no longer needed. The security
officer thereupon returned to the guardroom.
The minutes of the hearing do not explicitly refer to this
incident. However, they state that the applicant brought a motion
challenging the judge for bias, inter alia on the ground that he had
prevented him to call a counsel and had threatened to arrest him. The
applicant further requested that the hearing be suspended until he got
the assistance of a counsel, as in the circumstances, he did not feel
able to plead his case. The judge also rejected these requests.
Subsequently, the Regional Criminal Court heard an additional
statement of the applicant. Moreover, the applicant made a number of
requests for the taking of evidence, which were rejected by the court.
At the end of the hearing the court pronounced its judgment, convicting
the applicant for intimidation, assault and cruelty to animals and
sentencing him to four months' imprisonment suspended on probation.
On 22 June 1992 the applicant, then represented by counsel,
lodged an appeal on questions of law and fact (Berufung). As regards
the appeal on questions of law, he complained inter alia that the trial
judge had rejected his request to be assisted by counsel. He alleged
that the judge had threatened to arrest him and had called a security
officer to prevent him from leaving the court room.
On 19 October 1992 the Vienna Court of Appeal (Oberlandes-
gericht), after having held a hearing in presence of the applicant and
his counsel, dismissed the applicant's appeal. As regards his complaint
that he was not allowed to call a counsel, the Court considered that
the applicant was himself a lawyer and had been familiar with the
charges against him. Had he deemed it necessary, he could have come
to the hearing with a counsel.
The decision was served on the applicant on 23 February 1993.
B. Relevant domestic law
The Austrian Code of Criminal Procedure (Strafprozeßordnung)
contains a number of provisions allowing the judge to have a suspect
or an accused brought to court under warrant (Vorführbefehl). They
include the following:
SS. 173 and 174 deal with the summons to a hearing before the
investigating judge. S. 173 states that the suspect has to be summoned
by a writ signed by the investigating judge. Inter alia it has to
contain a warning that he will be brought before the judge should he
fail to appear. S. 174 states that a written warrant is to be issued
if the suspect fails to appear without a valid excuse.
S. 221 deals with the preparation of the trial and the summons
to the trial. Paragraph 1 provides that the summons of the accused has
to contain the warning that, if he fails to appear, according to the
circumstances, the trial will either be conducted in his absence, or
he will be brought to the trial under warrant; or, if this was not
possible in time, the trial will be adjourned and he will be brought
before the court.
S. 269 provides that, if the accused has not appeared for the
pronouncement of the judgment, the presiding judge may order that he
be brought before the court in order to attend it. Or he may order that
the judgment be read out to the accused by a designated judge or that
a copy of it be served on him.
S. 427 states that if the accused has failed to appear, the trial
may be conducted in his absence, if the charge concerns only a
misdemeanour, if he has already been heard and if the summons have been
served on him personally. In this case, the judgment will be pronounced
to the accused by a designated judge or a copy will be served on him
(paragraph 1). If the trial cannot be held or continued in the absence
of the accused, either because one of the above conditions is not
fulfilled or because the court expects that a completely satisfactory
establishment of the facts will not be possible in the absence of the
accused, the court has to proceed according to S. 221 (paragraph 2).
COMPLAINTS
The applicant's remaining complaint concerns his alleged arrest
during the hearing of 6 May 1992 before the Vienna Regional Criminal
Court. He submits in particular that the judge, after he had gone to
the door of the courtroom as he wanted to call a counsel, called a
security officer, whom he instructed to sit down next to the door and
to arrest him, should he try to leave.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 August 1993 and registered
on 30 September 1993.
On 17 January 1995 the Commission decided to communicate the
applicant's complaint concerning his alleged arrest during the hearing
of 6 May 1992 before the Vienna Regional Criminal Court to the
respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of
Procedure. The Commission declared he remainder of the application
inadmissible.
The Government's written observations were submitted on
6 April 1995. The applicant replied on 31 May 1995.
THE LAW
The applicant complains the he was unlawfully deprived of his
liberty during the hearing before the Vienna Regional Criminal Court
of 6 May 1992.
The Commission will examine this complaint under Article 5
(Art. 5) of the Convention which, 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 an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;"
The Government submit that the measure complained of did not
amount to a deprivation of liberty within the meaning of Article 5
para. 1 (Art. 5-1) of the Convention. They point out that the
restriction of the applicant's freedom of movement was only the
consequence of a measure which was primarily aimed at avoiding a delay
in the proceedings or the necessity to proceed in the absence of the
accused. Referring to case-law of the Commission (No. 8819/79, Dec.
19.3.1981, D.R. 24 p. 158, 161) the Government argue that the measure
at issue should not be considered as an arrest, as its purpose was not
to deprive the applicant of his liberty. Moreover, the judge only
threatened to arrest the applicant but his arrest was never actually
ordered as he made no further attempts to leave the courtroom.
Further, the Government submit that in any case a deprivation of
liberty was to be considered as lawful arrest under Article 5
para. 1 (c) (Art. 5-1-c) of the Convention. They rely on S. 221 para.
1 of the Austrian Code of Criminal Procedure, which provides that an
accused, who fails to appear, may be brought to court under a warrant.
The Government argue that it follows from the purpose of the provision
- which obliges the accused to appear and enables the court to hear the
case in his presence - that the power to have the accused brought to
court includes the power to prevent him from leaving the courtroom
during the trial. The opposite view would lead to absurd consequences,
i.e. that the court would have to let the accused leave and to have him
brought to court by force for a new hearing. Further, the power to
prevent the accused from leaving follows from S. 427 para. 2 of the
Code of Criminal Procedure, which states that the court shall proceed
in accordance with S. 221, if the trial cannot be held or continued in
absence of the accused. This is inter alia the case, if the court
expects that a completely satisfactory establishment of the facts will
not be possible without the accused. Finally, the Government refer to
S. 269 of the Code of Criminal Procedure, which allows the judge to
have an accused brought to court under guard to hear the judgment.
Eventually, the Government argue that the provisions of the Code
of Criminal Procedure, concerning the way in which the trial is to be
conducted, stipulate that in principle the accused shall be present.
Thus, the judge's warning that the applicant would be arrested also
constituted a step to secure the fulfilment of an obligation prescribed
by law within the meaning of Article 5 para. 1 (b) (Art. 5-1-b).
The applicant submits that in establishing whether there was a
deprivation of liberty, not only the duration and modalities of the
restriction of movement have to be taken into account but also the
effects of the measure on the person concerned and the arbitrariness
of the measure at issue. He argues that the judges' assumption that he
wanted to abscond from the trial was arbitrary, as it was clear in the
circumstances that he only wanted to call a defence counsel, but did
not intend to leave the courtroom.
The applicant contests the Government's view that his arrest in
the courtroom can be based on S. 221 and S. 427 para. 2 of the Code of
Criminal Procedure. In particular, the trial could have been conducted
in his absence as he had already been questioned and all relevant facts
had been established at the time when he was arrested. Further, the
applicant argues that S. 221 has to be read in conjunction with S. 174,
which requests a written warrant giving reasons. In his case the order
was only given orally without any reasoning. Finally, he submits that
his arrest cannot be based on S. 269. He argues that this provision
enables the court to ensure that the accused gets the necessary
information about the available remedies. Arresting him, who is a
lawyer, appears arbitrary.
The Commission notes that, although the accounts given by the
parties differ to some extent, the following facts are undisputed:
During the hearing of 6 May 1992 before the Vienna Regional Criminal
Court concerning charges of intimidation, assault and cruelty to
animals against him, the applicant requested to be represented by
counsel. Following the judge's refusal of this request, the applicant
went to the door of the courtroom and opened it. According to the
applicant he was only leaning outside, while in the Government's
version, he actually left the room. It is again undisputed that the
judge subsequently called the security service and instructed the
security officer to arrest the applicant should he try to leave.
The Commission recalls that in proclaiming the right to liberty,
paragraph 1 of Article 5 (Art. 5) is contemplating individual liberty
in its classic sense that is to say the physical liberty of the person
(Eur. Court H.R., Engel and Others judgment of 8 June 1976, Series A
no. 22, p. 25, para. 58). In order to determine whether circumstances
involve a deprivation of liberty, the starting point must be the
concrete situation of the individual concerned and account must be
taken of a whole range of criteria such as type, duration effects and
manner of implementation of the measure in question (Engel and Others
judgment, loc. cit., para. 59; Guzzardi judgment of 6 November 1980,
Series A no. 39, p. 33, para. 92).
The Commission considers that the measure complained of has to
be seen in the above factual context. The Commission attaches
particular weight to the applicant's submission that he only wanted to
call a counsel but did not intend to leave the courtroom. It appears,
however, that the judge interpreted the situation differently and made
the necessary arrangements to ensure that the applicant remain in the
courtroom and attend the trial. However, there is no indication that
the applicant wanted to leave in the further course of the hearing. On
the contrary, he took an active part in the trial, exercising his
defense rights in particular by making a number of requests for the
taking of evidence. Thus, the judge, although he had threatened the
applicant with it, never actually proceeded to his arrest. In these
circumstances, the Commission finds that the measure complained of did
not amount to a deprivation of liberty within the meaning of Article 5
(Art. 5) of the Convention.
It follows that the remaining part of 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, unanimously,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy