AS TO THE ADMISSIBILITY OF
Application No. 10803/84
by A.F.
against Austria
The European Commission of Human Rights sitting in private
on 16 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER 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 13 December 1984
by A.F. against Austria and registered on 27 January 1984 under
file No. 10803/84;
Having regard to:
- the first report of October 1984 provided for under Rule 40 of
the Rules of Procedure of the Commission;
- the Commission's decision of 4 December 1984 to bring the
application to the notice of the respondent Government and invite
them to submit written observations on the admissibility and
merits of the application;
- the observations submitted by the respondent Government on
15 March 1985 and the reply thereto submitted by the applicant
on 23 April 1985;
- the second report of June 1985 provided for under Rule 40 of
the Rules of Procedure of the Commission;
- the Commission's decision of 8 July 1985 to invite the parties
to a hearing on the admissibility and merits of the application;
- the President's decision of 23 April 1986 to cancel the
hearing in view of official liability proceedings which the
applicant in the parallel Application No. 10668/83 had
instituted before the Austrian courts;
- the further observations of the applicant submitted on
19 June 1986 and 20 March 1987, and of the Government on
24 July 1986 and 16 April 1987;
- the third report of May 1987 provided for under Rule 40 of
the Rules of Procedure of the Commission;
- the Commission's decision of 13 May 1987 to invite the parties
to a hearing on the admissibility and merits of the
application;
- the submissions of the parties at the hearing on
16 December 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 1965, is a car
mechanic apprentice resident at Lambrechten/Austria. He is
represented before the Commission by Drs. B. Binder and H. Blum, lawyers
practising in Linz.
I.
On 18 October 1982 the applicant and his father parked their
vehicle, a van for transporting school children, at 19.30 hours in
full darkness next to an orchard belonging to the farmer J.L. The
father then allegedly lay down on the van's back seat.
The farmer J.L. had for some time suspected that his pears were
being stolen by the applicant's father and had informed the neighbours
in the region of this suspicion.
A game warden and his wife driving by saw the van which they
recognised as belonging to the applicant's father. The game warden
also allegedly saw big sacks, some full and some empty, underneath the
pear trees, and a figure vanishing into the darkness.
The game warden then stopped his car and his wife called J.L.
The three then inspected the van. As they suspected something on the
back seat, the game warden and his wife drove away to call the police
and another neighbour, while J.L. stayed behind to guard the van.
The applicant's father then allegedly got up and climbed into
the front seat. J.L. saw him, told him to wait for the police and
walked to the front of the van. The applicant's father then started
the van and drove away with J.L. hanging over the bonnet and holding
on to the windscreen wipers.
After driving a short distance in this manner, the applicant's
father encountered the game warden who was returning in his car from
calling the police. Thereupon, the game warden followed in his car the
van driven by the applicant's father but could not catch up with it.
A neighbour who saw these occurrences also sat in his car and followed
the van.
After approximately 2.5 kilometres, the applicant's father
drove into the yard of a farm the owners, Mr. and Mrs. St., of which
he knew. He stopped and J.L. descended from the bonnet.
Later, a private expert opinion of 13 June 1983, ordered by
the applicant's father, concluded that the latter must have driven at
approximately 30 kmh on side-roads, and at 40-50 kmh on
tarred roads.
II.
Shortly after the incident two newspapers carried headlines
stating "Bus Driver Kidnaps Farmer After Stealing Fruit" and "Pear
Thief Drags Farmer for 3 Kilometres". The applicant's father
instituted proceedings against these newspapers resulting in two
decisions of the Linz Regional Court (Landesgericht) of 2 March 1983,
which partly upheld the request of the applicant's father.
The Court ordered in particular each newspaper to publish a
reply drafted by the applicant's father. This reply had to state that
the applicant's father had not collected fruit on the farm and that
J.L. had indeed climbed on to the van's bonnet to prevent the
applicant's father from driving away.
The Court did not grant the applicant's further requests for a
reply stating that he had not left the van at the farm; that he had
twice asked J.L. to step down from the bonnet; and that he had driven
at 5 to 10 kmh which meant that there had been no danger for J.L.
The court found in this respect that the applicant's father had indeed
left the van at one stage; that the newspapers had not contradicted
his statement that he had offered J.L. to step down; that there had
clearly been a danger for J.L. on the bonnet; and that the statements
of the applicant's father regarding the speed, namely that he had
driven at 5-10 kmh, were incorrect.
During these proceedings before the Linz Regional Court,
hearings took place on 2 February and 2 March 1983 in which Mr. and
Mrs. St., the game warden and his wife, J.L. and his neighbour were
heard as witnesses. The applicant was also heard as a witness with
regard to the events concerning his father on 18 October 1982. As a
result the Public Prosecutor instituted criminal proceedings against
the applicant who was charged with false testimony during this hearing.
However, on 6 July 1983 the Public Prosecutor declared that there were
no reasons to prosecute the applicant, and on 13 July 1983 the
investigating judge terminated these proceedings (see infra IV).
III.
In independent criminal proceedings, the applicant's father
was charged with having compelled J.L. to endure an agonising
situation and having negligently brought about a danger to his life
and health. A first hearing was held on 26 May 1983 before the
District Court (Kreisgericht acting as Schöffengericht) of Ried im
Innkreis. The respective witnesses, namely the game warden and his
wife, J.L. and his neighbour, maintained that they had not seen the
applicant in the van and that its doors had been locked. The
applicant and his father had been driving at 60-80 kmh.
During a further hearing on 17 June 1983 before the same
Court, the applicant was heard as a witness.
The applicant stated that on the evening of 18 October 1982
his father had suffered stomach pains and been compelled to lie down
in the back of the van while he, the applicant, had remained seated in
front. He had not crouched in the vehicle and not all doors of the
van had been locked. Later, J.L. had banged wildly on the van door,
used offensive language, and had stood on the front bumper. His
father requested J.L. twice to step down. When J.L. refused to do so,
they had driven slowly at 5-10 kmh through the countryside.
Moreover, his father had frequently stopped and offered to let J.L.
down, but J.L. had refused to descend. The official procès-verbal
of the hearing of 17 June 1983 then continues:
"The Public Prosecutor requests the preparation of a
separate protocol according to S.277 of the Austrian Code of
Criminal Procedure on account of suspicion of false
testimony on the part of the applicant and his immediate
arrest and interrogation by an investigating judge."
"In addition the public prosecutor extends the indictment
against (the applicant's father) as follows:
(The applicant's father) has in the year 1983 in
Lambrechten and other places determined the applicant to
give false testimony as witness before the Court by asking
(the applicant) as witness during his formal interrogation
(in the proceedings before the Ried District Court on
17 June 1983) to state that J.L. had voluntarily, on
18 October 1982 in Gerhagen, Lamprechten, climbed on the car
steered by (the applicant's father), that (the applicant's
father) had driven the car at a maximum of 10 kmh and that
during the drive to the St. farm he had stopped three to
four times and he himself (the applicant) had always sat
upright in the vehicle on that evening.
He has thereby committed the offence of giving false
testimony before the Court within the meaning of S.288(1) of
the Criminal Code as participant (Beteiligter) according to
S.12 of the Criminal Code. ...
The applicant's representative submits that there are no
grounds for arresting the applicant and bringing him before
the investigating judge.
The Public Prosecutor adds in respect of (the applicant)
that the reason for custody lies in the danger of collusion
according to S.175 para. 1 (3) of the Code of Criminal
Procedure inasmuch as the witness (the applicant) could
conspire in the criminal proceedings instituted against him
with the accused (the applicant's father). There is also
the danger of repetition in view of the fact that (the
applicant) is already facing criminal proceedings concerning
statements which he has made before the Linz Regional Court
on 2 February 1983 ...
The court then holds out once more the facts to the
applicant and asks him whether he will continue to uphold
his statement.
Thereupon (the applicant) states:
I affirm my previous statement.
The Court then retires from 0915 to 0920 hours whereupon
the President orders:
the arrest of (the applicant) on the ground of detention
of S.175 para. 1 (3) of the Code of Criminal Procedure
for the purpose of bringing him before the investigating
judge on the ground of suspicion of false testimony before
the Court.
The applicant is then arrested and led out of the
Court room by a Court official."
The applicant was brought on the same day before the
investigating judge at 15.45 hours and released from custody at
approximately 16.30 hours.
Meanwhile, the Court still heard the testimony of Mr. and Mrs.
St. On the same day, 17 June 1983, the District Court convicted the
applicant's father of the crime of severe compulsion (schwere Nötigung)
and the misdemeanour of endangering bodily safety (Gefährdung der
körperlichen Sicherheit) and sentenced him conditionally to ten months'
imprisonment.
In its judgment the Court did not regard as credible the
submission of the applicant's father that they had been driving
through the area to measure the exact distance of a certain trip, and
that he had then suffered severe stomach pains. The Court found that
the applicant's father had indeed driven at high speed for some
distance with J.L. being forced to hang over the van's bonnet.
J.L. had been in constant danger of falling down and being run over by
the van.
On 8 August 1983 the applicant's father unsuccessfully
attempted to institute criminal proceedings, inter alia, against J.L.,
the game warden and his wife, and another person, on the grounds that
the latter had given false testimony.
IV.
On 18 August 1983 the Public Prosecutor in Ried charged the
applicant with false testimony during the hearing of 17 June 1983
(supra III) as well as during the hearings on 2 February and
2 March 1983 before the Linz Regional Court (supra II). The charge
related to the applicant's statements that the van's door had not been
locked; that his father had driven between 5-10 kmh; and that his
father had thereby frequently stopped.
The applicant's appeal against this charge was partly
dismissed on 5 October 1983 by the Linz Court of Appeal
(Oberlandesgericht). In respect of the hearings of 2 February and 2
March 1983 before the Linz Regional Court, the Court of Appeal upheld
the applicant's appeal. It found that the investigating judge had
terminated the investigations and that the conditions under Austrian
law had not been met to reopen these proceedings.
In respect of the hearing before the Ried District Court of 17
June 1983, the Court of Appeal found that the applicant had not
sufficiently demonstrated that he could not be suspected of false
testimony.
On 6 June 1984 the Ried District Court convicted the applicant
of the offence of false testimony in that, at the hearing of
17 June 1983, the applicant had stated that his father had driven at most
5-10 kmh and had frequently stopped. In view of the applicant's age,
his conviction was provisionally deferred for three years. His plea
of nullity (Nichtigkeitsbeschwerde) was dismissed by the Supreme Court
(Oberster Gerichtshof) on 11 September 1984.
COMPLAINTS
1. The applicant complains under Article 5 para. 1 (c) of the
Convention of the illegality of his temporary custody (vorläufige
Verwahrungshaft). He refers to S.277 of the Austrian Code of Criminal
Procedure which provides:
"If, during the trial proceedings, there is a probability
(Wahrscheinlichkeit) that a witness has knowingly given
false testimony, the president may draw up a protocol of
this testimony and, after it has been prepared and approved,
let it be signed by the witness; he may also order the
arrest of the witness and have him brought before the
investigating judge."
The applicant draws attention to the connection between
S.277 and S.175 (1) of the Code of Criminal Procedure. S.175 (1)
provides:
"(1) Even without a previous summons the investigating judge
may order a person suspected of a crime or misdemeanour to be
brought before him or to be temporarily remanded in custody:
1. if the suspected person has been caught in the act
or is charged on reasonable suspicion (glaubwürdig
... beschuldigt) immediately after the crime or
the misdemeanour of having perpetrated the act,
or is caught with arms or other objects which
stem from the crime or misdemeanour or in any other
way indicate his involvement therein;
2. if he is absconding or hiding or if on the basis of
certain facts there is a danger that he will flee or
stay in hiding on account of the severity of the
punishment which he will probably incur or of other
reasons;
3. if he tries to influence witnesses, experts or
codefendants, to remove the traces of the offence or
otherwise to impede the discovery of the truth, or if
on account of certain facts there is the danger that
he will try to do so; or
4. if on the basis of certain facts it is to be expected
that he will repeat the act or will effect the attempted
or threatened act."
The applicant alleges that this provision was incorrectly
applied by the Ried District Court which imposed temporary custody on
him on account of the danger of collusion.
The applicant submits that it was logically impossible that
there existed in his case a danger of collusion as the Court had
already heard all important witnesses who had testified against his
father. The Court had not substantiated at all in what respect there
existed in his case a danger of collusion.
The applicant concludes that the Court's imposition for custody
was intended to constitute a penalty for his testimony in which he was
the only person to give exonerating evidence with regard to his
father. The Court's decision was inconsistent as other witnesses who
had also made contradictory statements, were not arrested.
2. The applicant also complains that there was no remedy
available to him under Austrian law which would have enabled him to
have the legality of his custody examined. In this regard he relies
on Article 5 para. 4 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 December 1983 and
registered on 27 January 1984.
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 submitted by the applicant on 23 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 in the parallel Application No.
10668/83 submitted a 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 1986 and 20 March 1987 and by the Government on 24 July 1986
and 16 April 1987.
On 13 May 1987 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application.
At the hearing which was held on 16 December 1987 the parties
were represented as follows:
The Government:
Botschafter Dr. Helmut TÜRK Head of the International
Law Department, Federal Ministry
of Foreign Affairs, Agent
Ministerialrat Dr. Wolf OKRESEK Constitutional Law Department,
Federal Chancellery, Adviser
Judge Dr. Irene GARTNER Federal Ministry of Justice,
Adviser
The applicant:
Dr. Helmut BLUM Lawyer (Rechtsanwalt) practising
in Linz.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
1. The facts
The Government's submissions as to the facts have been
included in THE FACTS above. The Government also recall that in the
indictment prepared by the Public Prosecutor's Office of Ried im
Innkreis on 1 February 1983 the applicant's father was charged with
the crime of aggravated coercion and with the misdemeanour of
endangering physical safety. The prosecution charged that the
applicant's father had caused a danger to J.L.'s life, health or
physical safety under particularly dangerous circumstances.
At the trial before the District Court of Ried im Innkreis on
17 June 1983, the applicant was heard as a witness, having previously
been advised on his rights and responsibilities as a witness. He said
that his father had driven the school van at a speed of about 5 to 10
kmh or at most 10 kmh and that he had stopped three or four times. At
the Public Prosecutor's request, the Court then decided to arrest the
applicant for the reason for custody stated in S.175 (1)(3) of the Code
of Criminal Procedure and to bring him before the investigating judge.
2. Issue under Article 5 para. 1 (c) of the Convention
a. Unlike the French version the English text of Article 5 para.
1(c) of the Convention mentions "the lawful arrest or detention".
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).
The relevant domestic legal provisions are S.277 and
S.175 (1)(1) and (3) of the Code of Criminal Procedure (quoted above
in COMPLAINTS, p. 6). The District Court of Ried im Innkreis based
itself on S.277 and S.175 (1)(3) when it ordered the applicant's
temporary custody.
S.277 of the Code does not explicitly stipulate as a
prerequisite of arrest the presence of one of the reasons for custody
listed in S.175 (1). The reasons for custody listed in S.175 (1) do not
only comprise those cited by the applicant in his complaints, i.e.
danger of absconding, danger of collusion and, in the then
operative version, danger of repetition but also - a
fact not mentioned by the applicant - being caught in flagrante
delicto (S.175 (1)(1) of the Code of Criminal Procedure).
But this reason for custody, being caught in the act, is always
present in the case contemplated in S.277, and this is why the view is
frequently taken that Parliament for this reason did not state
specific reasons for custody in this provision nor considered a
reference to S.175 necessary.
S.277 provides sufficient legal cover for having a witness
arrested where there is a probability of false testimony, and for
having him brought before the investigating judge. An order to this
effect issued by the presiding judge is based on his authority to
conduct the trial. But arrest in the sense of S.277 only implies the
remanding in temporary custody. The 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 his 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 the act which is enough to justify temporary custody.
The judicial bodies set up under the Convention have always
made it clear that it is primarily for the national courts to
interpret and apply national law (see Eur. Court H.R., Winterwerp
judgment of 24 October 1979, Series A no. 33, p. 20, para. 46).
Therefore, in the present case, too, it will be necessary primarily to
base oneself on Austrian law. Detention under S.277 of the Code 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. S.277 is therefore consistent with
Article 5 para. 1 (c) of the Convention.
The custody imposed on the applicant was materially justified.
The trial judge of the District Court of Ried im Innkreis based the
applicant's arrest on the reason for custody acknowledged by S.175
(1)(3).
b. Contrary to the applicant's submissions in his application the
assessment of the presence of danger of collusion as a reason for
custody in the applicant's case can only relate to the danger of
influence which he could have brought to bear on his father,
witnesses, the suppression of evidence etc., in the criminal
prosecution instituted against the applicant himself on suspicion of
false testimony. In particular, it was only in this context that he
was a suspect in this sense within the meaning of S.175, and it cannot
relate to the danger of conspiracy with (other) witnesses in the
criminal prosecution of his father. Moreover, it was only after the
hearing of 17 June 1983 that the Linz Court of Appeal, on 5 October 1983,
decided that the applicant should not be prosecuted for giving false
testimony on 2 February and 3 March 1983. In any event the views of
the judge who imposed temporary custody were later confirmed by the
Supreme Court in its decision of 11 September 1984.
S.175 (1)(3) is completely covered by the exceptions allowed
by Article 5 para. 1 (c) of the Convention. Both provisions have a
totally analogous structure: they first speak of offences which
actually happened and then of sufficient grounds for suspicion
("reasonable suspicion", "raisons plausibles de soupçonner") (cf. the
phrase "if on account of certain facts there is the danger that he
will try to do so" in S.175 (1)(3) of the Code of Criminal Procedure).
3. Issue under Article 5 para. 4 of the Convention
The judge who ordered the applicant's temporary custody did no
more than any security officer can do, namely arrest a person if he is
caught in the act. Here S.179(1) of the Code of Criminal Procedure
provides sufficient guarantees inasmuch as that person must be brought
within 24 hours before the investigating judge. After the judge has
interrrogated the person, the latter must either be released, if there
are no further grounds for his detention, or he will be detained on
remand, in which case he can file the normal remedies. It would be
practically impossible to have a remedy at the moment of arrest. In
the present case custody was very short; thereafter, the investigating
judge again reviewed the issue whether a danger of collusion existed,
and as a result released the applicant.
4. Decision of the Supreme Court of 11 December 1986
Following the decision of the Austrian Supreme Court of
11 December 1986 in the proceedings concerning Application No. 10668/83
(Ernst v. Austria), the Government point out that, in the light of that
decision, the imposition of temporary custody upon the applicant was
in conformity with Austrian law. This view is also upheld by certain
authors. In particular, it is unneccesary for a judge who is
imposing temporary custody on account of false testimony upon a
witness in accordance with S.277 of the Code of Criminal Procedure to
adduce further grounds of detention within the meaning of S.175 (1) of
the Code.
In view of the decision of the Supreme Court the respondent
Government no longer regard the institution of official liability
proceedings as necessary in the present case in order to comply with
the requirement of the exhaustion of domestic remedies within the
meaning of Article 26 of the Convention.
5. Conclusion
The Government therefore request the Commission to declare the
present application inadmissible under Article 27 para. 2 as being
manifestly ill-founded.
B. The applicant
1. The facts
The applicant's submissions as to the facts have been included
in THE FACTS above. The applicant stresses that only private
denunciations (Privatanzeigen) had been filed against his father, and
that the applicant was the only person who exonerated his father. Yet
the applicant was not questioned in the preliminary proceedings and
his testimony not considered. Moreover, the private expert opinion
ordered by the applicant's father clearly showed that the speed with
which he had allegedly driven was technically impossible. Yet the
private opinion was not considered by the Court.
2. Issue under Article 5 para. 1 (c) of the Convention
a. The guarantees enshrined in Article 5 of the Convention
concern the most important rights of a person's freedom and any
restrictions must be narrowly interpreted. It is irrelevant,
therefore, that in the present case the applicant's custody only
lasted a short time.
Arrest according to S.277 of the Code of Criminal Procedure is
only permitted if there is a probability that a witness knowingly gave
false testimony. These conditions were not met in the instant case,
as the Ried District Court, when it imposed custody, did not have
sufficient indications to conclude such probability. Accordingly, the
temporary custody imposed on the applicant was not lawful within the
meaning of Article 5 para. 1 (c) of the Convention.
Thus, the Ried District Court could on that occasion only
measure the applicant's statement against those of the other
witnesses. Moreover, the Court was aware of the two previous
decisions of the Linz Regional Court of 2 March 1983 which were
related to the subsequent Ried proceedings. There the applicant had
made the same remarks and was not prosecuted for giving false
testimony. In two decisions of the Linz Regional Court it was stated
that the applicant's father had frequently stopped the van, thus
enabling J.L. to step down. In respect of this crucial point the
applicant's testimony had therefore been confirmed and proved by an
independent court. The Ried District Court had already in respect of
this point no indication permitting the accusation of false testimony.
As the applicant's statement in this regard had been proved, the Ried
District Court had also no basis for the finding that the applicant's
statement concerning the speed at which the van had been driven
probably constituted a false testimony.
The imposition for custody upon the applicant in fact amounted
to a punishment as he was the only one to support his father. The
arbitrariness of the measure is also demonstrated by the fact that the
statements before the Ried District Court of other witnesses, namely
J.L., his neighbour and the game warden, differed from the statements
made by the same witnesses before the Linz Regional Court. There were
also considerable divergencies among these witnesses themselves. Yet
the Ried District Court did not consider imposing custody upon these
witnesses. Even if the Court was not obliged to consider the private
expert opinion produced by the applicant's father, it should have
appointed an official expert.
b. The applicant submits that, contrary to the respondent
Government's observations, temporary custody may only 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, this is
the prevailing view in Austrian doctrine and jurisprudence. In fact,
it is impossible to be caught in the act when giving false testimony,
since it must first be considered what the other witnesses have said.
The Ried District Court imposed temporary custody expressly on
the grounds of S.175 (1)(3), i.e. the danger of collusion, but it did
not examine these grounds. Contrary to the respondent Government's
submissions, such danger did not exist in the present case. It is not
surprising that the applicant was released from temporary custody a
few hours later. This showed that the Court itself was not convinced
that a danger of collusion existed.
This reason for custody could also not be based on
the false testimony proceedings instituted against the applicant in
view of the fact that all relevant witnesses had already given
complete and extensive testimony in the proceedings instituted against
the applicant's father. For this reason already no danger of
influencing other witnesses could be assumed. The reason for the
danger of collusion adduced by the Ried District Court could logically
not exist in the instant case. In any event shortly afterwards the
applicant's father was convicted.
3. Issue under Article 5 para. 4 of the Convention
The applicant also recalls his complaint under Article 5 para.
4, that no remedy had been open to him against the imposition of
temporary custody. There were no judicial or administrative
proceedings to examine the lawfulness of temporary custody. In fact,
no such remedy is available under Austrian law. Yet the detainee
should have the opportunity to put forward the arguments which, in his
opinion, militate against his detention and show its illegality. He
should have the opportunity to do so even if detention lasts a short
time.
4. Decision of the Supreme Court of 11 December 1986
In respect of the official liability proceedings instituted by
the applicant in Application No. 10668/83, the present applicant
submits that there was no effective remedy at his disposal within the
meaning of Article 26 of the Convention.
On the other hand, if the Supreme Court on 11 December 1986
decided that for the imposition of temporary custody according to
S.277 of the Code of Criminal Procedure it was unnecessary to adduce
the further grounds stated in S.175 of the Code, this implied that
such imposition fell to the discretion of the court concerned. This
view, which contradicts doctrinal writing in Austrian literature,
would also be contrary to Article 5 para. 1 (c) of the Convention
since temporary custody could be imposed without further reasons. Yet
Article 5 para. 1 expressly mentions the deprivation of liberty "in
accordance with a procedure prescribed by law". Article 5 para. 1 (c)
states that for the imposition of detention "respective reasons" must
be given.
THE LAW
1. The applicant complains that his temporary custody was illegal
in that it did not comply with the requirements under Austrian law,
namely S.175 (1) of the Code of Criminal Procedure. The Ried District
Court did not have sufficient indications to conclude that there was a
probability of his having committed an offence. Moreover, it was
logically impossible that there existed in his case a danger of
collusion, as all the important witnesses had already been heard when
he was arrested. In any event, he had made the same statements
already previously before the Linz Regional Court which had not
regarded his testimony as false.
The applicant submits further that there were no domestic
remedies at his disposal within the meaning of Article 26 (Art. 26) of the
Convention. He refers in this respect to the decision of the Supreme
Court of 11 December 1986. This Court approved the imposition of
temporary custody on the sole basis that the person is suspected of
having committed the offence of giving false testimony.
The applicant relies in respect of these complaints on Article
5 para. 1 (c) (Art. 5-1-c) of the Convention which states:
"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 observe that the Convention organs have left
the interpretation and application of domestic law primarily to the
domestic courts. Reference is made to S.277 and S.175 (1) of the Code
of Criminal Procedure quoted above in THE COMPLAINTS, p. 6. In
the present case, S.277 does not explicitly refer to the reasons for
detention listed in S.175 (1) of that Code. The Government submit
that it suffices under S.277 of that Code that somebody is caught in the
act. In the Government's view, the decision of the Supreme Court of 11
December 1986 has demonstrated that temporary custody may indeed be
imposed on a person solely on the grounds that he is suspected of the
offence. Also on the basis of that decision the Government accept
that the applicant had no further domestic remedies at his disposal
within the meaning of Article 26 (Art. 26) of the Convention.
The Commission has nevertheless examined whether the applicant has
complied with the conditions of the exhaustion of domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention. The Commission
notes that both parties refer to the decision of the Supreme Court of
11 December 1986 which concerned the case of Ernst v. Austria, No.
10668/83, Dec. 13.5.87. According to the decision of the Supreme
Court, it is unnecessary in cases such as the present one, concerning
the offence of false testimony, to adduce any grounds mentioned in
S.175 para. 1 of the Code of Criminal Procedure which warrant
detention on remand, as long as there exists the probability that the
offence has been committed. The Commission further notes the
Government's conclusion that in view of this decision the applicant
could no longer be expected to file an official liability action under
Austrian law in which he could have claimed the illegality of his
temporary custody. The Commission therefore considers that in respect
of the complaints which the applicant is now raising before the
Commission he had no further effective remedies under domestic law at
his disposal within the meaning of Article 26 (Art. 26) of the Convention.
The Commission is therefore called upon to examine the
substance of the applicant's complaints. In this respect the
Commission notes that it is not confronted here with an issue
concerning the fairness of the proceedings within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention ( cf. No. 8744/79, Majngarten v. the
Federal Republic of Germany, Dec. 2.3.83, D.R. 32 p. 141; No. 9000/80, Porro v.
Switzerland, Dec. 11.3.82, D.R. 28 p. 127). Rather the Commission must
examine in the present case whether the imposition of temporary custody imposed
on the applicant complied with the conditions of Article 5 para. 1 (c)
(Art.5-1-c) of the Convention.
As regards the conditions laid down in Article 5 para. 1 (c) (Art.
5-1-c) the Commission will turn first to the question whether the measure at
issue was "lawful" within the meaning of this provision. While it is not
normally the Commission's task to review the observance of domestic law by the
national authorities, it is otherwise in relation to matters where as here the
Convention refers directly to that law. For, in such matters, disregard of the
domestic law entails a breach of the Convention, with the consequence that the
Commission can and should exercise a certain power of review. Nevertheless, it
is for the national authorities in the first place, especially the courts, to
interpret and apply domestic law and to settle any issues arising therefrom
(see Bonazzi v. Italy, Comm. Report 19.3.81, D.R. 24 p. 53).
As regards the present case, S.277 of the Code of Criminal
Procedure provides that temporary custody may be imposed upon a
witness by the judge if, during the trial proceedings, there is a
probability that the witness knowingly gives false testimony. The
official procès-verbal of the trial hearing at the Ried District Court
of 17 June 1983 discloses that the Public Prosecutor requested the
applicant's arrest during the trial on the basis of S.277. Thereupon,
the judge imposed temporary custody on the applicant as he saw a
probability that the applicant had given false testimony.
In this respect, therefore, temporary custody was "lawful" within the
meaning of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. The question
arises whether in such cases S. 175 (1) of the Code of Criminal Procedure
requires further grounds for the imposition of temporary custody. For if
domestic law sets up such further requirements, these must also be complied
with in order for the measure to be "lawful" within the meaning of Article 5
para. 1 (c) (Art. 5-1-c) (see No. 9614/81, Dec. 12.10.83, D.R. 34 p. 119).
Here, the Commission notes that both parties have referred to
the decision of the Supreme Court of 11 December 1986, mentioned
above. In that decision the Court confirmed that S.277 of the Code of
Criminal Procedure requires, other than the probability of having
committed the offence, no further grounds under S.175 (1) warranting
detention on remand.
However, the Commission also notes that the decision of the
Supreme Court did not concern the present case and was handed down
after custody had been imposed on the applicant. Moreover, the
applicant submits that at the time of his arrest doctrinal writings
assumed that temporary custody under S.277 of the Code of
Criminal Procedure required a further ground in S.175 (1) of the Code
warranting detention on remand. The applicant claims in this respect
that the judge adduced the additional ground of the danger of
collusion, though in his case such danger could not exist. For this
reason therefore his detention was also unlawful under Austrian law.
The Commission need not resolve whether or not the danger of
collusion constituted under Austrian law a further condition for the
applicant's arrest and detention, since, even if this further ground
was necessary, the Commission finds that it was reasonably considered
to exist in the applicant's case for the following reasons.
The Commission observes that this danger of collusion adduced
by the Ried District Court related to the offence of false testimony,
rather than the offence with which the applicant's father was
charged. In respect of the offence of false testimony, it could not
in the Commission's opinion be ruled out that the applicant would try
to influence the evidence, in particular try to influence his father
and other witnesses. In view thereof, the Commission finds that the
Ried District Court could reasonably consider that in the applicant's
case there existed a danger of collusion.
Even assuming, therefore, that at the relevant time it was
necessary under Austrian law to adduce a further ground stated in
S.175 (1) of the Code of Criminal Procedure, namely the danger of
collusion, the Commission considers that this condition was complied
with in the present case.
Accordingly, the Commission concludes that the imposition of
temporary custody upon the applicant was "lawful" within the meaning
of Article 5 para. 1 (c) (Art. 5-1-c).
As a second condition, Article 5 para. 1 (c) (Art. 5-1-c) requires that
there must have been a reasonable suspicion of the arrested person
having committed the offence at issue.
The Commission recalls that the reasonable suspicion referred to in
Article 5 para. 1 (c) (Art. 5-1-c) of the Convention does not mean that the
suspected person's guilt must at that stage be established and proven, and it
cannot be a condition for arrest and detention pending trial that the
commission of the offence with which the person concerned is charged has been
established. It is precisely the purpose of the official investigation and
detention that the reality and nature of the offences laid against the accused
should be definitely proved (see No. 8224/78, Dec. 5.12.78, D.R. 15 p. 239).
In the present case the applicant's testimony before the Ried
District Court was the only one to exonerate his father of the charges
brought against him. On the other hand, the applicant's testimony
differed in various respects substantially from the statements of other
witnesses which all incriminated the father. The Commission does not
find the conclusion of the Ried District Court unreasonable that in
these circumstances there existed a suspicion that the applicant's
statements were untrue.
It is true that the applicant had already made the same
statements in the previous proceedings before the Linz Regional Court.
However, the Commission notes, for instance, that one important
statement of the applicant which gave rise to the suspicion of false
testimony - namely that his father had driven at approximately 5-10
kmh - was not confirmed by the Linz Regional Court. On the contrary,
that Court expressly found on 2 March 1983 that the statements of the
applicant's father concerning the speed were incorrect.
Accordingly, the Commission considers that the Ried District
Court could reasonably suspect the applicant of the offence of giving
false testimony.
The Commission further notes that on the same day the
applicant was brought before the investigating judge and then
released. Thus, the third condition in Article 5 para. 1 (c) (Art. 5-1-c) was
complied with, namely that the applicant's arrest and detention were
"effected for the purpose of bringing him before the competent legal
authority".
Finally, the question arises whether Article 5 para. 1 (c) (Art. 5-1-c)
requires compliance with further conditions, in addition in particular to the
suspicion of having committed an offence. The Commission recalls that the
purpose of detention under Article 5 para. 1 (c) is, inter alia, to allow the
process of investigation to proceed unhindered (see No. 8224/78, Dec. 5.12.78,
D.R. 15 p. 239). An issue could arise if this purpose was not established, or
if, in view of the nature of the offence which the person is suspected of
having committed, this purpose of detention appeared disproportionate to the
severity of the deprivation of liberty which detention will entail.
The Commission need not examine this issue any further as it
has just found that in the present case the Ried District Court
ordered the applicant's arrest as it reasonably considered that there
was a danger of collusion, thus attempting to ensure that the process
of investigation proceeded unhindered, and that this assumption was
reasonable.
As a result, the above complaints do not disclose any
appearance of a violation of the rights and freedoms set out in Article 5 para.
1 (c) (Art. 5-1-c) of the Convention. The Commission concludes 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 that there was no remedy available to
him under Austrian law which would have enabled him to have the
legality of his detention examined. Thus, he had no opportunity to
put forward the arguments which in his opinion militated against his
detention and showed its illegality. He claims that he should have
had this opportunity even if detention lasted only a short time. The applicant
relies on Article 5 para. 4 (Art. 5-4) of the Convention which states:
"4. 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 Government point out that S.179(1) of the Code of Criminal
Procedure provides sufficient guarantees in that a person upon whom
temporary custody has been imposed must be brought before the
investigating judge within 24 hours. After interrogation, the person
must be released, or he will be detained on remand in which case he
can file the normal remedies. It would be practically impossible to
have a remedy at the moment of arrest.
The Commission recalls that Article 5 para. 4 (Art. 5-4) of the
Convention is designed to provide a safeguard against arbitrary
detention by enabling a person to challenge the legality of his
detention.
In the present case the Commission notes that temporary
custody was imposed on the applicant during the trial proceedings
against the applicant's father. The applicant was detained during
seven hours and thereafter brought before the investigating judge who
questioned him and released him from detention.
Thus, in such circumstances where temporary custody is ordered
by a judge and where shortly thereafter an investigating judge
questions the applicant and then releases him, the Commission
considers that the applicant has suffered no prejudice amounting to a
violation of Article 5 para. 4 (Art. 5-4).
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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)