AS TO THE ADMISSIBILITY OF
Application No. 28475/95
by Christian GRATZER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 July 1995 by
Christian GRATZER against Austria and registered on 8 September 1995
under file No. 28475/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1971 and residing
in Voitsberg. Before the Commission he is represented by Mr. M. Zoller,
a lawyer practising in Innsbruck.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
A. Particular circumstances of the case
On 10 March 1995 the Investigating Judge at the Innsbruck
Regional Court (Landesgericht) heard the applicant, who was suspected
of having committed various counts of fraud and burglary. The
applicant, having been informed of the suspicion against him, stated
that he could understand that the court investigated these charges and
that he was willing to make a statement. After having heard the
applicant the Investigating Judge ordered that the applicant be taken
into detention on remand and stated that this decision was valid until
21 March 1995. The Investigating Judge found that there was a serious
suspicion that the applicant had committed theft and burglary and that
there existed a danger of absconding and the applicant committing
further offences of the same kind. The applicant waived his right to
appeal, requested that an ex-officio defence counsel be appointed for
him and stated that nobody needed to be informed about his detention
on remand.
On the same day the Investigating Judge ordered that an ex-
officio defence counsel be appointed for the applicant. The
Investigating Judge also fixed a hearing on the continuation of the
detention on remand (Haftverhandlung) for 20 March 1995 and ordered
that the Public Prosecutor, the defence counsel to be appointed for the
applicant and the applicant himself be summoned to the hearing. On
15 March 1995 the Tyrol Bar Association appointed Mr M.L. as the
applicant's defence counsel.
On 20 March 1995 the hearing on the continuation of the detention
on remand took place in the presence of the Public Prosecutor, the
applicant and his defence counsel. The Investigating Judge ordered the
continuation of the applicant's detention on remand until
20 April 1995.
On 19 April 1995 a further hearing on the continuation of the
applicant's detention on remand took place in the presence of the
Public Prosecutor, the applicant and his defence counsel. The
Investigating Judge ordered the continuation of the applicant's
detention on remand until 19 June 1995.
On 21 April 1995 the applicant, assisted by his defence counsel,
filed an appeal. He submitted that his social worker
(Bewährungshelfer) had been summoned neither to the hearing on
20 March 1995 nor to the hearing of 19 April 1995. The applicant's
defence counsel had discovered this when he had inspected the file on
13 April 1995. However, a social assistant had been appointed for him
after his release from prison on 30 August 1994 and it was mandatory
under Section 182 para. 1 of the Code of Criminal Procedure that the
social worker be summoned to the hearings. His detention on remand was
therefore unlawful. Furthermore it was not clear from the transcript
of the applicant's questioning by the Investigating Judge on
10 March 1995 that he had been sufficiently informed of his rights.
On 9 May 1995 the Court of Appeal dismissed the appeal. It found
that under Section 182 para. 1 of the Code of Criminal Procedure a
social worker had to be informed of the hearing but need not be
summoned. The Investigating Judge had failed to inform the social
worker of the hearing but this failure did not render the Investigating
Judge's order unlawful. The Court of Appeal had made additional
enquiries and according to information given by the social worker by
phone, she had only seen the applicant once and he had later been
unavailable to her. She could not comment in any way on the applicant's
detention on remand. As regards the suspicion against the applicant,
the Court of Appeal found that this suspicion was partly based on the
police investigations and partly on the applicant's own confession. As
regards the reasons for detention on remand, the Court of Appeal noted
that the applicant had not raised doubts as to the existence of a risk
of his absconding and of his committing further offences. As regards
the submission that the applicant had not been properly informed of his
rights, the Court of Appeal found that it was clear from the transcript
of the questioning that the applicant had been sufficiently informed
of the suspicion against him and of his right to remain silent or to
make a statement.
On 16 May 1995 the applicant filed a fundamental rights complaint
(Grundrechtsbeschwerde) with the Supreme Court (Oberster Gerichtshof)
against the above decision. He complained that his social worker had
not been summoned to the hearing which constituted a serious procedural
mistake which could not be remedied by a simple phone call. In his view
the law unambiguously required the summoning of a social worker. The
mere fact that the law used another word, namely "to inform"
(verständigen) instead of "to summon" (laden) was not decisive. He
further maintained that he had not been sufficiently informed by the
Investigating Judge about his right to request the assistance of a
defence counsel and his right to remain silent.
On 1 June 1995 the Supreme Court dismissed the complaint. It
found that it was not required to deal with the complaints concerning
the allegedly incomplete information of the applicant on his rights,
as the applicant had not appealed against the decisions of
10 March 1995 and 20 March 1995. The fact that the Court of Appeal, in
an obiter dictum, had commented on these complaints was irrelevant.
As regards the applicant's further complaint, the Supreme Court
found that under the Code of Criminal Procedure the social worker had
to be informed about a hearing on the continuation of detention on
remand. The Investigating Judge's failure to inform the applicant's
social worker did not, in the circumstances of the case, infringe the
applicant's rights. The applicant had not contested that there existed
reasons for his detention on remand and he or his defence counsel, at
latest at the hearing itself, had had the possibility of drawing the
Investigating Judge's attention to the failure to inform the social
worker and of requesting the Investigating Judge to remedy this
mistake. The applicant had failed to substantiate in his fundamental
rights complaint how the absence of his social worker at the hearing
could have raised doubts as to the existence of grounds for detention
on remand. In these circumstances it was not necessary to consider the
fact that on the occasion of ordering his detention on remand the
applicant had stated that nobody need to be informed about his arrest.
B. Relevant domestic law
1. Detention on remand
On 1 January 1994 the Code of Criminal Procedure Amendment Act
(Strafprozeßrechtsänderungsgesetz) entered into force which changed
some of the provisions governing detention on remand. The following
description takes these changes into account.
Under Section 180 paras. 1 and 2 of the Code of Criminal
Procedure (Strafprozeßordnung), a person may be held in detention on
remand if there are serious grounds for suspecting him of having
committed a criminal offence and if there is a risk of his absconding,
of collusion or of his committing further offences.
Section 181 of the Code of Criminal Procedure provides that
decisions ordering or prolonging detention on remand are only valid
within a certain time-limit, the expiry of which has to be mentioned
in the decision. Before the expiry of the time-limit there must either
be a hearing for the review of the detention order (Haftverhandlung)
or the accused has to be released (paragraph 1).
Detention on remand may for the first time be ordered for a
period of 14 days, it may be prolonged the first time for one month and
thereafter repeatedly for two months. Before any prolongation a
hearing (Haftverhandlung) before the Investigating Judge must take
place. Section 194 provides for a maximum duration of detention on
remand. Detention on remand may last up to two months if it is based
only on a danger of collusion. If it is based on other grounds, it may
last up to six months if the suspicion concerns a minor criminal
offence (Vergehen), up to one year if it concerns a crime (Verbrechen)
for which the minimum sanction is five years imprisonment, and two
years for the most serious crimes. If detention on remand would exceed
six months, the court ordering detention on remand must show that the
prolongation of detention on remand is necessary because of the
particular complexity of the case or because of the need for extensive
investigations. After the maximum duration of detention on remand has
expired a person may be taken again into detention on remand for a
period not exceeding six weeks if the bill of indictment has been
served on him or her and if the detention is necessary to secure his
or her appearance before the trial court.
Before deciding on the prolongation of detention on remand the
Investigating Judge has to hold a hearing in accordance with
Section 182 paras. 1 to 3. Against the Investigating Judge's decision
an appeal can be lodged with the Court of Appeal within three days
(Section 182 para. 4). A detainee may waive his right to a hearing if
two hearings have already taken place (Section 181 para. 5).
Section 182 paras. 1 to 3 read as follows:
"1. The hearing on the issue of detention is conducted by the
Investigating Judge. It shall be non-public. The suspect, his
defence lawyer, the Public Prosecutor and the social worker have
to be informed of the date.
2. The suspect must be brought to the hearing, unless this is
impossible because of an illness of the suspect. He or she must
be assisted by counsel.
3. The hearing starts with the Public Prosecutor's
presentation of the request for continuation of detention on
remand and the reasons for this request. The suspect and the
defence counsel have the right to reply thereto. The social
worker may give his or her view on the issue of detention. The
parties may request the court to make further findings on the
basis of the case file. The Investigating Judge may, ex-officio
or on request of the parties, hear witnesses or take other
evidence if he or she finds it appropriate; the parties have the
right to ask questions. The hearing must not endanger the purpose
of the criminal investigations. The suspect or his defence
counsel has the right to make the last statement. Thereupon the
Investigating Judge decides whether detention on remand should
be prolonged; this decision shall be pronounced orally and
subsequently issued in writing. ..."
The accused may, at any time, lodge an application for release
with the Investigating Judge (S. 193 para. 5). If the public prosecutor
does not oppose the application, the detained person must be released.
If the public prosecutor opposes it, the Investigating Judge must fix
a hearing without delay.
According to Section 179 para. 1 every person arrested must be
heard by the Investigating Judge within 48 hours following his or her
arrest. At the beginning of the interrogation the Investigating Judge
has to inform the arrested person about the suspicion against him or
her and that he or she is free to remain silent or to make a statement
and to contact a defence counsel.
2. Fundamental Rights Complaint Act (Grundrechtsbeschwerdegesetz)
Under this act, which entered into force on 1 January 1994, every
detained person may lodge a complaint to the Supreme Court, which has
to examine whether the fundamental right to personal freedom, as
guaranteed by the Constitutional Act on Personal Freedom
(Bundesverfassungsgesetz über den Schutz der persönlichen Freiheit) and
Article 5 of the Convention, has been violated by a decision of a
criminal court. If the Supreme Court has found a violation, the court
concerned must take immediately the necessary steps for complying with
the decision. The person complaining must exhaust existing remedies and
lodge the complaint within a time-limit of 14 days. The complaint must
be presented by a lawyer and legal aid is available for such
proceedings.
COMPLAINTS
1. The applicant complains under Article 5 para. 1 (c) of the
Convention that his detention on remand was unlawful because the
Investigating Judge had failed to summon his social worker to the
hearings on the continuation of his detention on remand.
2. He further complains under Article 6 of the Convention that the
criminal proceedings against him are unfair because the Investigating
Judge who questioned him on 10 March 1995 did not inform him
sufficiently on his right to remain silent and to contact a defence
lawyer, as required by Section 179 para. 1 of the Code of Criminal
Procedure.
THE LAW
The applicant complains that his detention on remand was unlawful
because the Investigating Judge had failed to summon his social worker
to the hearings on the continuation of his detention on remand. He
relies on Article 5 para. 1 (c) (Art. 5-1-c) of the Convention which
reads as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so ..."
The Commission recalls that on the question whether detention is
"lawful", including whether it complies with "a procedure prescribed
by law", the Convention refers back essentially to national law and
lays down the obligation to conform to the substantive and procedural
rules thereof. However, it requires in addition that any deprivation
of liberty should be consistent with the purpose of Article 5 (Art. 5),
namely to protect individuals from arbitrariness (Eur. Court HR,
Wassink v. the Netherlands judgment of 27 September 1990, Series A no.
185-A, p. 11, para. 24; Quinn v. France judgment of 22 March 1995,
Series A no. 311, pp. 18-19, para. 47). The national courts are
normally in a better position than the Convention institutions to
determine whether domestic law has been complied with (Eur. Court HR,
Quinn v. France judgment, loc. cit.)
In the present case, the Court of Appeal and the Supreme Court
found that the failure to inform the applicant's social worker of the
hearings on the continuation of his detention on remand while not
entirely in accordance with the relevant provisions of the Code of
Criminal Procedure did not render his detention on remand unlawful. The
Supreme Court carefully examined the particular circumstances of the
case. It noted in particular the following elements: the applicant had
not contested the existence of reasons for his detention on remand; he
or his defence counsel could have requested the hearing of the social
worker; the social worker who had been contacted by the Court of Appeal
had stated that she could not make any statements with regard to the
grounds for detention on remand; the applicant had failed to
substantiate in his fundamental rights complaint how the absence of his
social worker could have raised any doubts as to the existence of
reasons for detention on remand.
The Commission further notes that neither at the time when the
Investigating Judge ordered the applicant's detention on remand, nor
at any of the subsequent hearings did the applicant request that his
social worker be informed of his detention on remand or that she be
present at the hearings. According to the submissions of the
applicant's defence counsel made in the domestic proceedings, he had
become aware of the court's failure to inform the social worker about
the hearing on 13 April 1995 while the hearing took place on
19 April 1995.
The Commission finds that in these circumstances there is no
appearance that the applicant's detention on remand has not been
ordered in accordance with the law as required by Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains under Article 6 (Art. 6) of the
Convention that the criminal proceedings against him are unfair because
the Investigating Judge who questioned him on 10 March 1995 did not
inform him sufficiently on his right to remain silent and to contact
a defence lawyer.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"In the determination ... of any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The Commission finds that this part of the application does not
relate to the applicant's detention on remand but to the criminal
proceedings pending against him.
The Commission recalls that it can only assess the fairness of
criminal proceedings when it is able to consider them in their entirety
(No. 9000/80, Dec. 11.3.82, D.R. 28, p. 127; No. 16156/90, Dec. 7.6.90,
unpublished). Moreover, an acquittal will normally be regarded as
rectifying procedural errors alleged to have violated the Convention
(No. 5575/72, Dec. 8.7.74, D.R. 1, p. 44; No. 8083/77, Dec. 13.3.80,
D.R. 19, p. 223).
The Commission notes that the applicant has not shown that in the
criminal proceedings pending against him he has been convicted and that
this conviction has become final. Until these proceedings have
finished, with the exhaustion of domestic remedies as required by
Article 26 (Art. 26) of the Convention, it is not possible to consider
whether Article 6 (Art. 6) has been complied with in this respect, or
whether any alleged violations that may have taken place have been
remedied by a subsequent acquittal.
This part of the application is therefore premature and must be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy