THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 49158/99
by Peter G. FROMMELT
against Liechtenstein
The European Court of Human Rights (Third Section), sitting on 15 May 2003 as a Chamber composed of
MrG. Ress, President,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrJ. Hedigan,
MrsM. Tsatsa-Nikolovska,
MrsH.S. Greve, judges,
and MrV. Berger, Section Registrar,
Having regard to the above application lodged on 29 March 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Peter G. Frommelt, is a Liechtenstein national who was born in 1946 and is currently detained in Austria. He is represented before the Court by Mr Kolzoff, a lawyer practising in Vaduz.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The criminal proceedings against the applicant
On 8 August 1997 the Vaduz Regional Court (Landgericht) opened preliminary investigations (file no. 10 Vr 203/97) against the applicant and a number of other persons on suspicion of embezzlement, continuous aggravated fraud, and attempted aggravated coercion.
On 14 August 1997 the investigating judge at the Regional Court, having heard the applicant, ordered that he be taken into pre-trial detention. He found that there was a reasonable suspicion, on the basis of documentary and testimonial evidence, that the applicant had enticed a number of persons to entrust him with the investment of their capital, which he had then fraudulently diverted using a network of partly foreign companies. There was a danger of absconding as the applicant had his residence abroad, namely in Switzerland, a danger that the applicant might influence witnesses as he was actually suspected of having attempted to do so and a danger of repetition of the offences, as the applicant had previously been convicted of fraud and embezzlement. Finally, having regard to the seriousness of the offence, the applicant’s detention was proportionate to the sentence he risked incurring.
On 26 August 1997 the Regional Court appointed an expert and ordered him to produce a report on the question whether the monies obtained by the applicant had been invested as promised to his clients.
During the preliminary investigations, which were based on criminal complaints by more than seventy persons and were directed against the applicant and seven co-accused, ninety-three witnesses were heard, about half of them by courts in Germany, Switzerland, Austria and Italy under letters rogatory.
On 19 September 1997 the Court of Appeal (Obergericht) held a hearing on the applicant’s request for release (Haftprüfungsverhandlung). The applicant was not represented by counsel at this hearing. Following the hearing, the court ordered that the applicant’s detention be continued. It confirmed the reasons advanced by the Regional Court.
On the same day the Vaduz Regional Court dismissed the applicant’s request of 18 August to have a legal-aid counsel appointed for him. Having regard to the applicant’s submissions concerning his income and assets, and to the fact that he was represented by two counsel of his own choosing in a second set of proceedings (file no. 282/92), it found that he had sufficient means to pay for counsel.
On 21 November 1997 the expert submitted a first report, having analysed about fifty bank accounts for a period extending from March 1993 to August 1997.
On 10 December 1997 the Regional Court ordered that the applicant be represented by legal aid counsel. It noted that the investigations and in particular the expert’s opinion had shown that the applicant had been living exclusively on money obtained from the investors in his various companies and had therefore no means to pay for defence counsel. In the evening of 16 December 1997 the Lawyers’ Chamber appointed Mr B.
On 17 December 1997 the Court of Appeal held a hearing on the applicant’s renewed request for release. At the beginning of the hearing the applicant’s counsel pointed out that he had only been appointed at 6 p.m. on the day before and had therefore been limited to two hours of consultation with the applicant without having had a possibility to study the voluminous file. The Court noted that it had not been informed of the late appointment of counsel for the applicant and drew his attention to the fact that he remained free to request that the hearing be adjourned as the statutory three days’ time-limit for its preparation had not been complied with. However, counsel waived his right to request an adjournment.
At the close of the hearing the court ordered that the applicant’s detention be continued. It found that there was a reasonable suspicion of continuous aggravated fraud, based on credible witness evidence and on the expert’s opinion. Further, the court held that the danger of absconding persisted as the offence at issue was punishable with up to ten years’ imprisonment. The mere fact that the applicant had not absconded in previous criminal proceedings against him did not necessarily mean that he would not do so in the present case. Moreover, according to the expert’s opinion, there was an important difference between the amount of money obtained from the investors and the amount paid back to some of them. It was, therefore, likely that the applicant had stashed away a considerable amount of money. The danger of a repetition of the offences followed from the suspicion that the applicant had acted with the intention to gain a continuous income from his fraudulent transactions. In these circumstances, the use of an oath not to leave the country or of an order to report regularly to the police did not constitute an appropriate means to secure the purpose of the detention.
On 17 December 1997 the Lawyer’s Chamber appointed Mr Kolzoff as legal-aid counsel for the applicant.
On 14 January 1998 the Court of Appeal, sitting in camera as a panel of five judges, dismissed the applicant’s appeal against the decision of 17 December 1997.
As to the applicant’s complaint that he did not have sufficient time to prepare for the hearing of 17 December 1997 concerning his detention, the court noted that his counsel had waived the right to request an adjournment. There were no reasons to doubt the validity of the waiver. Regarding the complaint that a legal-aid counsel was appointed for him only in December, the court noted that the applicant’s first request for legal aid had been dismissed on 19 September 1997 on the basis of his own submissions as to his income and other assets. It was only on 5 December 1997 that the applicant had filed a second request, which was granted on 10 December.
As to the applicant’s complaint that the decision of 17 December 1997 had not given good reasons for assuming that there was a danger of absconding as well as a danger of a repetition of the offences, the court expressed the view that the suspicions against the applicant had not changed but been confirmed since the previous decision of 19 September 1997 by further witness evidence and on the basis of an expert opinion. It was true that the danger of absconding could not be measured solely by the severity of the possible sentence. However, the applicant was not socially integrated. At the time of his arrest, he had been residing in Switzerland with his wife and children. The fact that he was also registered at his parent’s home in Vaduz was therefore irrelevant. As the applicant’s wife had meanwhile moved and divorce proceedings were pending, it could not be said that the applicant was living in well-ordered circumstances. Thus, the danger of absconding persisted. Further, the danger of repetition of the offences remained because the applicant had previously committed similar offences and on account of his personality and current circumstances as well as of the nature of the offences at issue.
On 29 January 1998 the Public Prosecutor’s Office requested that the applicant’s pre-trial detention be extended to up to one year on account of the complexity of the case. The investigating judge supported this request on 30 January. The applicant was given no opportunity to comment.
On 11 February 1998 the Court of Appeal, sitting in camera as a panel of five judges, ordered that the applicant’s detention would be allowed to last up to one year, i.e. until 13 August 1998 at the latest. Regarding the suspicion against the applicant as well as the danger of absconding and of a repetition of the offences, the court referred to its decision of 14 January 1998. Invoking Article 131 of the Code of Criminal Procedure (Strafprozessordnung), according to which detention on remand must not exceed six months unless the investigations are particularly complex, it found that the present proceedings concerned an exceedingly complex case of white-collar crimes. The offences to be investigated had been committed by a number of co-accused over a period of four years, numerous companies with links to foreign countries were involved and a great number of witnesses had to be heard, many of them under letters rogatory. Further, the expert opinion still needed to be supplemented, which was complicated by the fact that no proper accounting documents had been kept by the companies involved. A length of detention of up to one year appeared proportionate, all the more so because, given the maximum sentence of 10 years’ imprisonment, even a further prolongation of the detention to up to two years would be admissible under Article 131.
On 5 March 1998 the Supreme Court (Oberster Gerichtshof) declared inadmissible the applicant’s appeal against the decision of 14 January 1998.
On 2 April 1998 the Supreme Court, sitting in camera, dismissed the applicant’s appeal against the decision of 11 February 1998. As to the applicant’s complaint that he had not been heard on the requests for prolongation of his detention prior to the Court of Appeal’s decision, the Supreme Court, referring in some detail to the State Court’s (Staatsgerichthof) case-law, found that the right to be heard could also be complied with where the person concerned had a possibility to appeal against the decision. However, it was advisable in the future to hear detainees on requests for prolongation of the detention.
Further, the Supreme Court found that the Court of Appeal had given sufficient reasons for its finding that the investigation was particularly complex and for its conclusion that the danger of absconding as well as the danger of a repetition of the offences persisted.
On 25 June 1998 the investigating judge closed the preliminary investigations and transmitted the file to the Public Prosecutor. At that time the file contained twenty-six volumes with more than seven hundred annexes such as bank records, accounting documents and receipts.
On 23 July 1998 the Public Prosecutor preferred the indictment concerning charges of continuous aggravated fraud and attempted coercion.
On 5 August 1998 the Court of Appeal, sitting in camera as a panel of five judges, decided that the applicant’s detention would be allowed to last up to two years, i.e. until 13 August 1999, as requested by the investigating judge. Prior to this decision the court had given the applicant an opportunity to comment on that request. The Court of Appeal referred to the decisions of 11 February and 2 April 1998 regarding the suspicion against the applicant, the danger of absconding and the danger of a repetition of the offences. It emphasised that according to the expert’s opinion the applicant had failed to give explanations as to the whereabouts of about 10 million Swiss francs which he had obtained from potential investors. For this reason, it was likely that the applicant would try to abscond, if released. Further, the applicant’s argument that he was in a physical and mental state which would make any repetition of the offences impossible was disproved by the fact that, following his placement at Rankweil hospital, his mental state as well as his physical condition had improved considerably.
On 26 August 1998 the Vaduz Regional Court fixed 4 to 6 November 1998 as dates for the applicant’s trial.
On 4 September 1998 the State Court dismissed the applicant’s complaint against the Supreme Court’s decision of 2 April 1998. As to the applicant’s complaint that he had not been heard prior to the decision of 11 February 1998, the State Court noted that the Code of Criminal Procedure did not require that the detainee had to be heard prior to a decision to prolong the detention, although - as the Supreme Court had rightly pointed out - it would be desirable to do so. The State Court confirmed that in these circumstances, the lack of an opportunity to comment was remedied by the possibility to appeal against the decision itself. It also found that the Supreme Court as well as the Court of Appeal had given sufficient reasons for their decisions.
Also on 4 September 1998, the State Court dismissed the applicant’s complaint against the Supreme Court’s decision of 5 March 1998.
As to the applicant’s complaint that legal aid counsel had only been appointed for him after four months of detention, the State Court noted that, unlike the Austrian Code of Criminal Procedure, the Liechtenstein Code of Criminal Procedure did not require that a detainee be given a legal aid counsel for hearings concerning his detention. Such an obligation did not flow from Article 6 § 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms either. Moreover, the Court of Appeal had rightly noted that the applicant’s first request for legal aid had, on the basis of his own submissions, been dismissed on the ground that he was not indigent. It added that, even conceding that the applicant lost his income on account of his detention, he had considerable assets and had admitted it. The assumption that he was not indigent was confirmed at the time by the fact that he was represented by two counsel of his own choosing in a second set of criminal proceedings. Moreover, the applicant’s financial situation had become transparent only after the expert opinion had been filed in November 1997. Shortly afterwards a legal-aid counsel was appointed for him. As to the complaint that the legal aid counsel appointed on 16 December 1997 did not have sufficient time to prepare for the hearing of 17 December, the State Court confirmed the finding that counsel had validly waived his right to request an adjournment of that hearing.
Both the State Court’s decisions were served on 2 October 1998.
On 4 November 1998 the trial was opened against the applicant. On 6 November 1998 it was adjourned.
Meanwhile, in a second set of criminal proceedings (file no. 8 Vr 282/92), the Vaduz Regional Court had convicted the applicant on 3 September 1998 of misappropriation, embezzlement and fraud and sentenced him to two and a half years’ imprisonment. On 13 January 1999 the Court of Appeal dismissed his appeal and on 1 April 1999 the Supreme Court confirmed the judgment.
With effect from 2 April 1999 the applicant’s detention on remand was suspended for the period during which he would serve his prison term under the above proceedings. The period already spent in detention on remand in the proceedings at issue in the present case (file no. 10Vr 203/97) was deducted from the sentence. Consequently, the prison term resulting from those proceedings ended on 14 February 2000.
On 12 August 1999 the Vaduz Criminal Court terminated the trial against the applicant (file no. 10Vr 203/97), and convicted him of continued aggravated fraud and sentenced him to eight and a half years’ imprisonment.
On 7 April 2000 the Court of Appeal, upon the applicant’s appeal, reduced the sentence to five and a half years’ imprisonment.
On 8 June 2000 the Supreme Court dismissed his further appeal and the Public Prosecutor’s appeal. On the same day the applicant was transferred to Feldkirch prison in Austria.
On 8 November 2000 the applicant was transferred to another prison in Austria, Garsten, where he is currently detained.
2. The applicant’s detention at Rankweil hospital in Austria
On 29 May 1998, while the applicant was held in pre-trial detention, the prison doctor, referring to a letter by Dr N., a psychiatrist treating the applicant, informed the investigating judge that the applicant appeared no longer fit for detention on account of his mental state and suicidal tendencies. Upon his recommendation the applicant was transferred to Vaduz hospital.
On 2 June 1998 the investigating judge at the Vaduz Regional Court ordered a psychiatric expert, Dr H., to examine whether the applicant was still fit for detention.
The expert submitted his report on 3 June 1998. Noting that he had examined the applicant the day before, he submitted the following conclusions:
“Mr. Peter G. Frommelt is latently suicidal. He has, according to a communication from the consultant physician, already shown psychotic symptoms and for three weeks has no longer taken any nourishment. He has already lost weight considerably. It is to be feared that, if these behavioural disturbances are not treated appropriately, Peter G. Frommelt will suffer serious and considerable damage to health. Appropriate treatment can currently be given only under psychiatric in-patient conditions, since medical and psychiatric observation, infusion therapy and possibly also parenteral nourishment are required. For these reasons, the environment of a psychiatric hospital ward is indispensable until further notice.”
On 4 June 1998 the investigating judge ordered that the applicant be temporarily transferred to the closed psychiatric ward of the Rankweil hospital in Austria. Referring to Dr H.’s report of 3 June, he found that the applicant’s physical and mental state required specific treatment in a psychiatric hospital.
On the same day that judge, on the basis of Article 13 (2) of the 1982 Treaty between the Principality of Liechtenstein and the Republic of Austria on the Accommodation of Detained Persons (“the 1982 Treaty”), obtained consent for the applicant’s transfer to Rankweil hospital from the President of the Feldkirch Regional Court.
On 5 June 1998 the applicant’s counsel announced orally that he intended to appeal against the above decision and requested that the appeal be granted suspensive effect. The Court of Appeal refused the request for suspensive effect, and on the same day the applicant was transferred to the closed psychiatric ward of Rankweil hospital in Austria.
On 12 June 1998 the applicant lodged an appeal. He submitted in particular that the decision of 4 June 1998 was unlawful as there was no agreement between Liechtenstein and Austria on the placement of mental patients at Rankweil hospital and thus no legal basis for his detention. Further, the transfer to Rankweil hospital was arbitrary as the decision contained no reasons why detention at Vaduz hospital was insufficient. The applicant alleged that the transfer was not prompted by medical reasons but by security considerations. Further, he complained that his right to be heard had been violated as neither his counsel nor Dr N. had been given a possibility to comment before the decision was taken.
On 6 July 1998 Dr H., the court-appointed expert, found that the applicant was again fit for detention. He noted in particular, that the applicant had terminated his hunger strike and that his suicidal tendencies had abated.
On 7 July 1998 the investigating judge at the Vaduz Regional Court ordered that the applicant be re-transferred to Vaduz prison. The transfer was carried out the next day.
On 5 August 1998 the Court of Appeal rejected the applicant’s complaint against the decision of 4 June 1998 as being inadmissible. Given that the applicant had meanwhile been re-transferred, the court found that he no longer had any legal interest in the examination of his appeal.
On 24 November 1998 the State Court rejected the applicant’s complaint, finding that he had no legal interest in pursuing the case.
B. Relevant law
1. Criminal Code
Article 21 of the Criminal Code deals with placement in an institution for mentally ill offenders.
Article 21
"(1) If a person commits an offence punishable with a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence in a state of mind excluding responsibility (Article 11) resulting from a serious mental or emotional abnormality, the court shall order him to be placed in an institution for mentally ill offenders if, in view of his personality, his condition and the nature of the offence, it is to be feared that he will otherwise, under the influence of his mental or emotional abnormality, commit a criminal offence with serious consequences.
(2) If such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not being irresponsible, commits an offence punishable by a term of imprisonment exceeding one year under the influence of severe mental or emotional abnormality. In such a case the placement is to be ordered at the same time as sentence is passed."
2. Code of Criminal Procedure
Article 131
“(1) Pre-trial detention may only be imposed if there is a reasonable suspicion that the accused has committed a specific misdemeanour or crime, if one of the reasons for detention of paragraphs 2 or 7 applies, and if the accused has already been interrogated by the investigating judge concerning the case and the requirements for pre-trial detention.
(2) Notwithstanding the cases of paragraph 7, it is required for imposing pre-trial detention that, because of specific circumstances, there is a danger that the accused will, if remaining free,
1. flee or hide because of the amount of the punishment possibly awaiting him or her or because of other resasons (danger of absconding),
2. influence witnesses, experts or co-accused, remove the traces of the offence, or otherwise try to render the finding of the truth more difficult (danger of collusion), or
3. repeat the offence or act (danger of repetition) or carry out the attempted or threatened offence (danger of execution).”
Article 340
(1) If there are sufficient reasons for applying Article 21 (1) of the Criminal Code, the prosecutor shall request committal to an institution for mentally ill offenders. Such a request shall be subject, mutatis mutandis, to the provisions on indictment. The proceedings for such an application shall be subject, mutatis mutandis, to the provisions on criminal proceedings unless determined otherwise hereafter.
...
(4) If one of the reasons for detention listed in Article 131 (2) or (7) applies, if the person concerned cannot remain free without danger for himself or others, or if monitoring by a doctor is necessary, the person concerned shall provisionally be committed to an institution for mentally ill offenders or to a mental institution.”
3. Treaty of 4 June 1982 between the Principality of Liechtenstein and the Republic of Austria on the Accommodation of Detained Persons
The 1982 Treaty (Vertrag zwischen dem Fürstentum Liechtenstein und der Republik Österreich über die Unterbringung von Häftlingen) - Liechtenstein Law Gazette 1983/39 - so far as material, provides as follows:
Article 1
“On an application by the Principality of Liechtenstein the Austrian Republic shall, according to the provisions of this Treaty, provide legal assistance through
1. the enforcement of sentences of imprisonment and preventive measures which have been imposed by a court of the Principality of Liechtenstein, and
2. the detention of persons who, by an order of a court of the Principality of Liechtenstein, are to be imprisoned.”
Article 2
“Legal assistance pursuant to Article 1 shall be provided only if an application has been lodged in respect of an offence which is punishable according to the laws of both Contracting States.”
Article 13
“(1) Requests for legal assistance within the meaning of Article 1 shall be made by the Government of the Principality of Liechtenstein to the Austrian Minister of Justice, who shall decide whether legal assistance will be granted or refused. If it is granted, the Austrian Minister of Justice shall order in which judicial prison or in which institution the requested legal assistance shall be granted.
(2) If a request pursuant to paragraph 1 cannot be made in particularly urgent cases, especially because there is a danger to the life of the person to be handed over or to third parties, the Liechtenstein authorities may preliminarily hand over the person to be accommodated to the Feldkirch Regional Court. The President of the Feldkirch Regional Court shall order the immediate return of the person preliminarily handed over as soon as the reason for the hand-over no longer holds or if legal assistance under this agreement is not admissible.”
COMPLAINTS
1. The applicant complains under Article 5 of the Convention about his detention on remand. He submits in particular that his detention lasted unreasonably long and that the courts failed to give sufficient reasons to justify its necessity.
He also complains that he was not assisted by counsel at the hearing concerning his request for release on 19 September 1997 and that his legal aid counsel did not have sufficient time to prepare himself for the hearing concerning his request for release on 17 December 1997. Further, he complains that he was not heard before the Court of Appeal’s decision of 11 February 1998 ordering the prolongation of his detention to up to one year.
2. The applicant complains under Article 6 of the Convention that, during the first four months of his pre-trial detention, no defence counsel was appointed for him and that, on 14 August 1997, he was heard by the investigating judge without defence counsel being present.
3. The applicant complains under Article 8 of the Convention that his detention constituted an unjustified interference with his right to family life.
4. The applicant complains under Article 5 that there was no legal basis for ordering his detention at the closed psychiatric ward of Rankweil hospital in Austria. Moreover, that detention was not necessary from a medical point of view.
5. Finally, the applicant claims that the fact that he was detained at Rankweil psychiatric hospital in Austria during his pre-trial detention and that his sentence is executed in an Austrian prison in itself contravenes the Convention.
Invoking Article 3 of the Convention, the applicant also complains of the medical treatment received at Rankweil hospital. He submits in particular that he was treated with neuroleptics, that he was threatened that he would be force-fed should he not terminate his hunger-strike, that the personnel at the psychiatric hospital were informed that he was a detainee and that he was under constant observation.
He finally complains about allegedly inhuman prison conditions at Garsten. In particular he submits that he has to share a cell of 21 square metres with three other inmates and that, due to the fact that Garsten prison is a former monastery, his cell is chilly in summer.
THE LAW
1. The applicant complains under Article 5 about the length of his pre-trial detention and about procedural shortcomings in the review thereof. Article 5, so far as material, 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:
(a) the lawful detention of a person after conviction by a competent court;
...
(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;
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
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.”
a. As to the length of the applicant’s detention, the Government submitted that the applicant has not exhausted domestic remedies as regards the duration of his detention beyond one year, as he failed to contest the Appeal Court’s order of 5 August 1998 - prolonging his detention to a maximum of two years - before the State Court.
In any case, the Government contended that the duration of the applicant’s pre-trial detention was reasonable. They emphasised in particular that there was a reasonable suspicion throughout the proceedings. In addition, the courts gave “relevant and sufficient” reasons for their assumption that there was a danger of absconding, a danger of collusion and a danger of re-offending in the circumstances of the case. Given the latter’s complexity, the authorities also acted with the required diligence.
The applicant contested the Government’s plea of non-exhaustion. He submitted in particular that under Articles 138 § 2 and 139 § 4 of the Code of Criminal Procedure, no time-limits apply and no reasons are required for the prolongation of pre-trial detention once the indictement has been preferred and a date for the trial has been set. In the present case, the indictement had been preferred on 23 July 1998 and on 26 August 1998 a date for the trial had been set. Consequently, contesting the order of 5 August 1998 would not have offered any prospects of success.
Further, the applicant maintained that his pre-trial detention lasted unreasonably long. He conceded that the proceedings were complex but asserted that the reasons adduced by the courts for upholding his detention for a protracted period were not well-founded. The fact that he had his residence in Switzerland, about ten minutes’ drive from Vaduz, could not justify the assumption that the would abscond, all the more so as he was accused of similar offences in parallel proceedings and had not absconded. Once his office had been searched and all relevant files had been seized, there was no danger of re-offending either.
The Court finds that it is not required to decide whether or not the applicant has exhausted domestic remedies, as the complaint is in any event inadmissible for the following reasons.
The period to be taken into consideration started on 14 August 1997, when the investigating judge ordered the applicant’s detention. Further, the Court re-iterates its well-established case-law according to which the end of the period referred to in Article 5 § 3 is “the day on which the charge is determined, even if only by a court of first instance” (see for instance, Labita v. Italy [GC], no. 26772/95, § 147, ECHR 2000-IV).
In the present case, the first instance’s judgment was given on 12 August 1999. However, the Court notes that with effect of 2 April 1999 the applicant’s pre-trial detention was suspended for the purpose of serving the sentence which had been imposed in a second set of proceedings. Thus, thereafter, the applicant’s detention no longer fell within the ambit of Article 5 § 1 (c) but within the scope of Article 5 § 1 (a). The applicant was still serving the said sentence when the first-instance judgment in the present case was given.
It follows that the applicant’s pre-trial detention in the present case lasted from 14 August 1997 until 2 April 1999, that is one year and seven and a half months.
The Court recalls that the issue whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. It is essentially, on the basis of the reasons given in the decisions of the domestic authorities and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention but, after a certain lapse of time, no longer suffices. In such cases the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita, cited above, §§ 152-153, with further references; Kudła v. Poland [GC], no. 30210/96, §§ 110-111, ECHR 2000‑XI, also with further references).
In the instant case, the courts examined on two occasions whether the applicant should remain in pre-trial detention following his applications for release, namely on 19 September and on 17 December 1997. In addition they examined on 11 February and on 5 August 1998 whether the maximum period of detention should be extended to one year and, subsequently, to two years.
In finding that there was a reasonable suspicion of continuous aggravated fraud against the applicant, the courts considered the evidence given by numerous witnesses and an expert opinion. As to the danger of absconding, the courts did not merely rely on the severity of the sentence which the applicant risked incurring. They found that he was not socially integrated in Liechtenstein as he had his residence in Switzerland and was, following the breakdown of his marriage, not living in well-ordered circumstances. They also noted that there were reasons to believe that he had stashed away a considerable amount of money and would therefore have the means to abscond. As to the danger of repetition of the offences, the courts had regard to the fact that the applicant had previously been convicted of similar offences as well as to the nature of the offence at issue and to the applicant’s personality. In addition, when extending the maximum period of detention, they took the complexity of the investigations into account.
In sum, the Court finds that the reasons put forward by the domestic courts for the applicant’s continued detention were both “relevant” and “sufficient”.
As to the question whether the proceedings were conducted with special diligence, the Court notes that the investigations were particularly complex due to their scope, the number of co-accused and witnesses to be heard and the necessity to proceed by way of letters rogatory in numerous cases. Despite this complexity, the preliminary investigations were closed on 25 June 1998, that is a little more than ten months after the beginning of the applicant’s pre-trial detention, and the indictment was preferred about a month later, on 23 July 1998. The trial opened on 4 November 1998. In these circumstances, the Court finds that there is no indication whatever that the domestic authorities failed to act with the necessary diligence.
Consequently, the Court concludes that the length of the applicant’s detention - one year and seven and a half months - was reasonable within the meaning of Article 5 § 3 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
b. As to the applicant’s complaint about procedural shortcomings in the review of his pre-trial detention, the Government asserted that the proceedings were in conformity with Article 5 § 4 of the Convention.
In particular, as regards the fact that the applicant was not heard before the Court of Appeal’s decision of 11 February 1998 which prolonged his detention to up to one year, the Government argued that Article 5 § 4 did not require an oral hearing to be conducted in proceedings concerning the review or extension of pre-trial detention. In any case, procedural shortcomings may be remedied on appeal, which is what happended in the present case. The applicant could put forward his arguments before the Supreme Court and the State Court. Moreover, both courts recommended that in future the accused be heard by the Appeal Court in hearings concerning an extension of pre-trial detention, although the Code of Criminal Procedure does not expressly provide for this. In fact, the applicant was heard by the Appeal Court on the occasion of the prolongation of his detention of up to two years.
The applicant maintained his prior submissions.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant complains under Article 6 of the Convention that, during the first four months of his pre-trial detention no defence counsel was appointed for him and that, on 14 August 1997, he was heard by the investigating judge without defence counsel being present.
Article 6, so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
The Government asserted that the applicant had failed to exhaust domestic remedies, while the applicant submitted that he was absolved from making use of any remedies, precisely on the ground that, being detained and without legal representation, it was practically impossible for him to do so. The applicant maintained his prior submissions.
The Court notes that the applicant apparently raised the issue of the lack of legal representation, during the first four months of his pre-trial detention, in his appeal against the decision of 17 December 1997 refusing his request for release and in his complaint to the State Court against the Supreme Court’s decision of 5 March1998. It also appears, however, that he did not raise the complaint about the absence of defence counsel at the interrogation of 14 August 1997. However, the Court is not required to examine the question of exhaustion of domestic remedies, the complaints being in any event inadmissible for the following reasons.
As the requirements of Article 6 § 3 of the Convention are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under those two provisions taken together (see amongst many other authorities, Luca v. Italy, no. 33354/96, § 37, ECHR 2001-II).
Regarding the applicant’s complaint that his first interrogation by the investigating judge on 14 August 1997 took place without defence counsel being present, the Court notes that the applicant has not adduced any argument to show that that interview was so decisive for the prospects of the defence in the subsequent proceedings that the absence of counsel would have deprived him of a fair hearing in the light of the entirety of the proceedings (see a contrario, John Murray v. the United Kingdom, judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, p. 54, § 63).
As to the applicant’s complaint about the courts’ refusal to appoint a legal-aid counsel for him during the first four months of his pre-trial detention, that is from mid-August to mid-December 1997, the Court notes that Article 6 § 3 (c) requires that a “person charged with a criminal offence” who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing or, if he does not have sufficient means to pay for such assistance, be given it when the interests of justice so require.
In the present case, the courts found that the applicant did not fulfil the first requirement for being given free legal aid, namely insufficient means to pay for legal assistance. On 19 September 1997 the Vaduz Regional Court refused the applicant’s first legal aid request on the basis of his own submissions regarding his assets and having regard to the fact that he was represented by two counsel of his own choosing in a second set of criminal proceedings. This assessment was confirmed by the Court of Appeal in its decision of 14 January 1998 and by the State Court in its decision of 4 September 1998. Upon the applicant’s second legal-aid request of 5 December, such aid was granted on 10 December, particularly on the basis of the expert’s opinion of 21 November which had made the applicant’s financial situation transparent and had established that he had been living exclusively on monies obtained from the investors in his various companies and had therefore no means of his own to pay for defence counsel. Up to this point in time, the Court finds that the Liechtenstein courts could reasonably have assumed that the applicant had sufficient means to pay for counsel of his own choosing and that, accordingly, the first condition listed in Article 6 § 3 (c) for obtaining free legal assistance had not been met.
In sum, the applicant’s complaints do not disclose any appearance of a violation of Article 6 §§ 1 and 3 (c).
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant complains under Article 8 of the Convention that his detention constituted an unjustified interference with his right to family life.
The applicant has not substantiated his complaint and has not adduced any argument to show that the interference with his family life went beyond the inevitable limitations inherent in any lawful detention (see for instance, Van der Ven v. the Netherlands, no. 50901/99, § 68, to be published in ECHR 2003). His complaint does, therefore, not disclose any appearance of a violation of Article 8 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicant complains that his detention at Rankweil hospital violated Article 5 of the Convention as there was no legal basis for it.
Article 5, so far as relevant, reads as follows
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;”
The Government contended, firstly, that the order to commit the applicant temporarily to a closed psychiatric ward was based on Article 340 (4) of the Code of Criminal Procedure which provides that a person in respect of whom grounds for pre-trial detention listed in Article 131 (2) exist may be placed provisionally in an institution for mentally ill offenders or in a psychiatric hospital. Secondly, the transfer to Rankweil hospital took place in accordance with Articles 1 and 13 (2) of the 1982 Treaty. The urgency required by Article 13 (2) was established by the medical expert’s report of 3 June 1998.
Referring to the Court’s case-law, the Government further asserted that the applicant’s placement at Rankweil hospital fulfilled the requirements of lawful detention under Article 5 § 1 (e) of the Convention. The fact that the applicant was of unsound mind at the material time had been demonstrated by the report of the medical expert. His mental disorder was of a degree warranting compulsory confinement. Finally, the applicant’s placement at Rankweil hospital terminated on 8 July 1998, as soon as the expert had found that the applicant’s condition had improved and that the need for in-patient treatment had thus ceased to exist.
The applicant maintained that his transfer to Rankweil hospital violated Article 5. In his assertion it lacked a legal basis and was unnecessary from a medical point of view. He contended that any health risks resulting from his hunger strike could have adequately been dealt with at the Vaduz hospital and emphasised that his transfer had been opposed by Dr. N. who was treating him there.
The Court observes that, despite the fact that the applicant was detained in Austria, the ordering of his detention by a Liechtenstein court falls within the “jurisdiction” of that State and therefore engages its responsibility (see, mutatis mutandis, Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, pp. 29-31, §§ 91-98). It further notes that the applicant was detained at Rankweil hospital from 5 June until 8 July 1998. His detention served to ensure that he would appear before the Vaduz Regional Court and therefore comes under paragraph 1 (c) of Article 5. However, in view of the fact that this detention was also based on a finding of a state of unsound mind, it must in addition be considered under Article 5 § 1 (e) (see, mutatis mutandis, X. v. the United Kingdom, judgment of 5 November 1981, Series A no. 46, p. 17, § 39).
The Court re-iterates that, in order to comply with Article 5 § 1 (e), the detention in issue must first of all be "lawful", this condition including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules of that law. It also requires, however, that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see, for instance, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 17 and 19, §§ 39 and 45; Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, p. 21, § 63; and, as a recent authority, Hutchison Reid v. the United Kingdom, no. 50272/99, § 46, to be published in ECHR 2003).
Consequently, in order to justify detention, the fact that a person is "of unsound mind" must be established conclusively, except in cases of emergency. To this end an objective medical report must demonstrate to the competent national authority the existence of a genuine mental disturbance whose nature or extent is such as to justify such deprivation of liberty, which cannot be prolonged unless the mental disturbance continues (see the above-cited judgments, Winterwerp, § 39; Herczegfalvy, ibid., Hutchison Reid, § 47).
It must, however, be acknowledged that the national authorities have a certain discretion when deciding whether a person is to be detained as "of unsound mind", as it is for them in the first place to evaluate the evidence made available in a particular case; the Court’s task is to review their decisions from the point of view of the Convention (Herczegfalvy, ibid.)
In the present case, the Court considers that the order to commit the applicant to a psychiatric hospital had a basis in Liechtenstein law, namely Article 340 (4), taken together with Article 131 (2), of the Code of Criminal Procedure. The applicant’s transfer to Rankweil psychiatric hospital in Austria, in turn, had its legal basis in Articles 1 and 13 (2) of the 1982 Treaty (see relevant law above).
The Court does not consider that the Liechtenstein courts failed to comply with these provisions. Nor does the order to transfer the applicant to Rankweil hospital appear to have been tainted by arbitrariness. When ordering this transfer on 4 June 1998, the investigating judge at the Vaduz Regional Court had before him the psychiatric expert’s report of 3 June 1998 which concluded that the applicant was latently suicidal, suffered from psychotic symptoms and had lost considerable weight due to a three-weeks’ hunger-strike. It found that there was a danger to the applicant’s health unless he received psychiatric treatment under inpatient conditions. The applicant was re-transferred to Vaduz prison, on 8 July 1998, as soon as the medical expert had found that he was again fit for detention in normal prison conditions as he had terminated his hunger-strike and as his suicidal tendencies had abated.
In these circumstances, the Court finds no appearance of a violation of Article 5 § 1 (e).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. The applicant claims that the fact that he was temporarily transferred to Rankweil hospital in Austria during his pre-trial detention and that his sentence is being served in an Austrian prison in itself contravenes the Convention. Further, he alleges that his treatment at Rankweil hospital amounted to inhuman treatment contrary to Article 3 of the Convention. Finally, he complains about the prison conditions at Garsten.
Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
At the outset the Court refers to its finding that the applicant’s transfer to Rankweil hospital during his pre-trial detention had a legal basis in the Liechtenstein Code of Criminal Procedure and the 1982 Treaty. Further, the Court notes that the said Treaty also serves as a legal basis for the enforcement of the applicant’s sentence imposed by the Liechtenstein courts in an Austrian prison.
According to the Court’s case-law, the Convention does not exclude the transfer of competences to international organisations - or under international agreements - , but the Contracting State’s responsibility for “securing” the Convention rights continues even after such a transfer (see, for instance, Matthews v. the United Kingdom [GC], no. 24833/94, § 32, ECHR 1999-I and, mutatis mutandis, Waite and Kennedy v. Germany [GC], no. 26083/94, § 67, ECHR 1999-I). Similarly, in the Court’s opinion, the Convention does not exclude the transfer of competences from one Contracting State to another under a bilateral agreement. Thus, the fact that the applicant was temporarily detained in a psychiatric hospital in Austria during his pre-trial detention and that his sentence is being executed in an Austrian prison in accordance with the 1982 Treaty is not in itself incompatible with the Convention. Indeed, the conclusion of such treaties is quite commonplace today.
The Court notes that the applicant’s complaints are directed solely against Liechtenstein. The present case, therefore, raises the issue of whether a Contracting State, which has an individual’s detention ordered by its authorities carried out in another State, might bear responsibility for ill-treatment allegedly suffered there. It could also raise the question whether responsibility would lie with Liechtenstein alone, whether it would also lie with Austria or, possibly, with both States. However, the Court is not required to examine these complex issues, nor the question of whether the domestic remedies in Liechtenstein law have been exhausted, as the applicant’s complaints are in any case inadmissible for the following reasons.
The Court re-iterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (see, for instance, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162; Dougoz v. Greece, no. 40907/98, § 44, ECHR 2001-II).
As to the applicant’s complaint of ill-treatment at Rankweil hospital, the Court further re-iterates that, while patients of a psychiatric hospital remain under the protection of Article 3, a measure which is a therapeutic necessity cannot, as a general rule, be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist (see Herczegfalvy, cited above, pp. 25-26, § 82).
In the present case, the medical expert, who was appointed by the Vaduz Regional Court and who examined the applicant before his transfer to Rankweil hospital, found that the applicant showed suicidal tendencies and psychotic symptoms. Consequently, the medical necessity of treating the applicant with neuroleptics was sufficiently established. Nor do the further elements adduced by the applicant, namely that he was told he would be force-fed should he continue his hunger-strike, that the hospital personnel were informed that he was a detainee and that he was under constant surveillance, disclose any appearance of a violation of Article 3 of the Convention.
As to the applicant’s complaint concerning Garsten prison, the Court finds that the conditions described by him, even if they were conclusively established, would not reach the threshold required to bring them within the scope of Article 3.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint about procedural shortcomings in the review of his pre-trial detention;
Declares the remainder of the application inadmissible.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy