AS TO THE ADMISSIBILITY OF
Application No. 21842/93
by George KEMPERS
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 27 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
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 16 April 1993 by
George KEMPERS against Austria and registered on 13 May 1993 under file
No. 21842/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 6 September 1995 to declare the
application partly inadmissible and to communicate the remainder
of the application to the respondent Government for observations
on its admissibility and merits;
- the observations submitted by the respondent Government on
28 November 1995 and the observations in reply submitted by the
applicant on 22 January 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch national born in 1949, who is currently
detained in Austria at Karlau prison. Before the Commission he is
represented by Mr. F. Insam, a lawyer practising in Graz.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
On 30 April 1991 the applicant was arrested in Graz on suspicion
of having committed offences against the Drug Offences Act
(Suchtgiftgesetz). C.S., H.A. and I.H. were arrested at the same time
as co-suspects.
On 3 May 1991 the Investigating Judge at the Graz Regional Court
(Landesgericht) heard the applicant and ordered the institution of pre-
trial investigations (Voruntersuchung) against him. The applicant
admitted that he had tried to sell 5 kg Cocaine in Graz on
30 April 1991 together with his co-suspects. He also admitted a
previous drug transaction which had taken place in Aachen (Germany) in
the beginning of April 1991.
On the same day the Investigating Judge ordered that the
applicant be taken into detention on remand. The Investigating Judge
found that there was a danger of collusion, a danger that he might
commit offences and a danger of the applicant's absconding. Pursuant
to Section 45 para. 3 (1) of the Code of Criminal Procedure
(Strafprozeßordnung) the applicant's contact with his defence counsel
took place under the surveillance of the Investigating Judge for a
period of 14 days after the order of detention on remand as the order
had been based on the ground inter alia of the danger of collusion.
On 14 May 1991 the Investigating Judge extended the surveillance
of the applicant's contact with his defence counsel, pursuant to
Section 45 para. 3 (2) Code of Criminal Procedure, until service of the
bill of indictment on the applicant. The Investigating Judge found
this measure necessary because the applicant was suspected of being a
member of a gang of drug traffickers, further members of the gang had
not yet been discovered and the applicant had made contradictory
statements. Thus, contacts between the applicant and his defence
counsel could prejudice the further investigations, a considerable part
of which had to be undertaken outside Austria. The applicant appealed
against this decision.
On 29 May 1991 the Judges' Chamber (Ratskammer) of the Graz
Regional Court dismissed the applicant's appeal. It found that the
order of the Investigating Judge did not involve any criticism of the
defence counsel or any reproach against him of conduct contrary to law
or the disciplinary rules of members of the bar, but merely had the
purpose of preventing any contact whatsoever with third persons in
order not to endanger the success of the criminal investigations. The
applicant was suspected of drug trafficking on a large scale as a
member of a gang which was active in several European States and some
members were still at large. In such circumstances the police
investigations had to be conducted with utmost care and even the
slightest possibility of collusion had to be prevented.
On 3 June 1991 R.M., V.B. and T.M. were arrested by the police
when they attempted to sell drugs in Bregenz. These persons were
suspected of being members of the same gang as the applicant.
On 29 June 1991 the period of two months under Section 193 of the
Code of Criminal Procedure for which detention on remand based solely
on the risk of collusion might last elapsed.
On 6 August 1991 the Graz Public Prosecutor's Office preferred
a bill of indictment charging the applicant and C.S., J.S., H.A., I.H.,
R.M., V.B and T.M. with drug trafficking. On 8 August 1991 the bill
of indictment was served on the applicant.
On 16 September 1991 the Graz Court of Appeal (Oberlandesgericht)
dismissed the applicant's objections against the bill of indictment.
On 8 November 1991 the Graz Court of Appeal, following a request
by the Regional Court, authorised the applicant's detention on remand
for a maximum duration of 9 months, on the ground that there was a risk
of absconding and that the applicant might commit offences of the kind
he was suspected of (Tatbegehrungsgefahr).
On 15 January 1992 the trial against the applicant and the
co-accused took place before the Graz Regional Court. At the trial the
applicant admitted the facts as regards the drug transaction in
April 1991 in Graz, but pleaded not guilty and submitted that he had
been incited to the drug deal by undercover agents acting on behalf of
the Austrian State. As regards the drug transaction in Aachen in
April 1991 the applicant stated that his submissions before the police
and the Investigating judges were wrong. He had made them merely
because he had felt cheated by the co-accused who, after his arrest,
were still at large.
On 16 January 1992 the Graz Regional Court convicted the
applicant under the Drug Offences Act of having, together with his
accomplices R.M., C.S. and V.B. attempted in April 1991 to sell a large
quantity of drugs in Graz and Aachen respectively. The Court also
convicted R.M. and V.B. of a drug transaction which had taken place in
Bregenz in June 1991. The Court sentenced the applicant to six years'
imprisonment and to a fine of 1,4 million AS or 6 months' imprisonment
in default.
The Regional Court found that the applicant, who knew drug
suppliers in the Netherlands, had contacted R.M. in Switzerland in
December 1990. They agreed that the applicant would procure drugs in
the Netherlands while R.M. would look for potential buyers. In the
beginning of April 1991 the applicant sold drugs he had procured from
C.S. to R.M. This drug transaction took place in Aachen. R.M. brought
the drugs to Switzerland and sold them to other persons, amongst them
V.B., who also informed him about potential buyers in Graz.
Subsequently, between 22 and 27 April 1991, negotiations took place
between V.B., acting for these potential buyers, R.M., who financed the
transaction, and the applicant and C.S., who procured the drugs in the
Netherlands. It was agreed to bring the drugs to Germany close to the
Austrian border and to meet the potential buyers in Graz on
28 April 1991. As the potential buyers insisted that the drugs be
brought to Graz the transaction did not take place and the drugs were
sent back to the Netherlands. After further negotiations a new meeting
in Graz was arranged for 30 April 1991. On that day H.A. brought the
drugs by car to Graz, where also the applicant and C.S. were present.
At the meeting with the potential buyers they were arrested by the
police. In June 1991 R.M. organised a further drug transaction with
potential buyers who V.B. had found in Bregenz. R.M. procured the
drugs in Switzerland and hired T.M. for the transport. On 3 June 1991,
when attempting to hand over the drugs to the presumed buyers, R.M.,
V.B. and T.M. were arrested.
On 13 May 1992 the Graz Public Prosecutor's Office lodged an
appeal against the sentence regarding the applicant, V.B and C.S.
On 20 May 1992 the applicant lodged a plea of nullity and an
appeal against the sentence. He complained, inter alia, about the
surveillance of the contact with his defence counsel at the pre-trial
stage and invoked Article 6 of the Convention.
On 16 September 1992 the Procurator General' Office commented on
the applicant's plea of nullity in the following way:
"In the view of the Procurator General's Office, the pleas of
nullity brought by the accused George Kempers, R.M. and V.B. meet
the criteria for a decision pursuant to Section 285d of the Code
of Criminal Procedure. The transmission of a copy of the
decision is herewith requested."
The above submissions of the Procurator General's Office were not
served on the applicant.
On 16 September 1992 the Supreme Court rejected the plea of
nullity. As regards the applicant's complaint about the surveillance
of the contact with his defence counsel at the pre-trial stage, the
Supreme Court noted that the applicant in this respect relied on
provisions of the Convention, which, however, did not constitute
reasons for nullity as provided for in the Code of Criminal Procedure.
On 21 December 1992 the Graz Court of Appeal decided on the
applicant's appeal. It upheld the sentence as regards the term of
imprisonment and reduced the fine to 1 million AS and the imprisonment
in default to 4 months.
B. Relevant domestic law
The following account of the relevant provisions of the Code of
Criminal Procedure is based on the law as in force until 1 January 1994
when the Code of Criminal Procedure Amendment Act
(Strafprozeßänderungs-gesetz 1993) entered into force.
According to S. 12 para. 1 of the Code of Criminal Procedure the
Judges' Chamber at the First Instance Court supervises all measures
taken by the Investigating Judge at the First Instance Court in the
course of preliminary investigations.
According to S. 45 para. 3 a person taken into detention on
remand may meet his defence counsel in the absence of the Investigating
Judge. However, if detention on remand has been ordered on the ground
of the danger of collusion the Investigating Judge may, during the
first 14 days of the detention, be present when the remand prisoner
meets his defence counsel. If, based on specific circumstances, the
danger exists that the contact with the defence counsel may interfere
with evidence the Investigating Judge may order that the surveillance
of the contact with the defence counsel be extended until the bill of
indictment is served. Surveillance of the contact with the defence
counsel may only be exercised as long as the detention on remand is
based on the danger of collusion (S. 180).
S. 113 provides in particular that anybody affected by a decision
of the Investigating Judge or by a delay in the course of preliminary
investigations or in the proceedings after indictment, may apply for
review by the Judges' Chamber, which decides in private after having
heard the Investigating Judge and the Public Prosecutor. According to
S. 114 there is a further appeal against decisions of the Judges'
Chamber to the Court of Second Instance, if these decisions concern the
separation of proceedings, the institution or discontinuation of the
preliminary investigation, bail, or detention on remand without a
hearing concerning release having taken place.
Under S. 180 paras. 1 and 2 a person may be held in detention on
remand if he is seriously suspected of having committed a criminal
offence and if there is a risk of his absconding, of collusion or that
the person might commit offences. According to S. 193, detention may
not last more than two months where its sole justification is the risk
of collusion; it may not last more than six months where one of the
other grounds is relied on. The Court of Appeal may, however, if so
requested by the Investigating Judge or the Public Prosecutor and if
the difficulty or the scope of the investigations makes it necessary,
extend the detention. In such cases the maximum duration of detention
is three months where the measure is based on a risk of collusion
alone, and one year, or even two years, if the term of imprisonment
which the suspect risks is ten years or more, in the other
circumstances provided for.
By virtue of SS. 194 and 195, it is open to the suspect to apply
for release at any time. Such an application and any appeal against a
decision ordering detention on remand must be examined by the Judges'
Chamber at a private hearing in the presence of the accused or his
defence counsel.
Under S. 285 (d) para. 1 a plea of nullity may be rejected by the
Supreme Court after deliberation in private if the Supreme Court
unanimously finds that the complaint should be dismissed as manifestly
ill-founded without any need for further deliberation.
COMPLAINTS
1. The applicant complains under Article 6 para. 3 (b) and (c) of
the Convention that his right to defence had been prejudiced because
at the pre-trial stage the contact with his defence counsel was under
the surveillance of the Investigating Judge.
2. He further complains under Article 6 para. 1 of the Convention
about a violation of the principle of equality of arms in the
proceedings on his plea of nullity before the Supreme Court. He
submits that the Procurator General made submissions to the Supreme
Court of which the applicant was not informed and to which he had no
possibility to react.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 April 1993 and registered
on 13 May 1993.
On 6 September 1995 the Commission decided to communicate the
applicant's complaint concerning the surveillance of the contact with
his defence counsel by the Investigating Judge at the pretrial stage
and his complaint that he was not given the possibility to react to
submissions made by the Procurator General in the proceedings before
the Supreme Court and declared inadmissible the remainder of the
application.
The Government's written observations were submitted on
28 November 1995. The applicant replied on 22 January 1996.
THE LAW
1. The applicant complains under Article 6 para. 3 (b) and (c)
(Art. 6-3-b, 6-3-c) of the Convention that his right to defence was
prejudiced because at the pre-trial stage his contacts with his counsel
were placed under the surveillance of the Investigating Judge.
Article 6 paras. 1 and 3 (b) and (d) (Art. 6-3-b, 6-3-d) of the
Convention, insofar as relevant, read as follows:
"1. In the determination of... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by an independent
and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
b. to have adequate time and facilities for the preparation of
his defence;
c. to defend himself in person or through legal
assistance of his own choosing ..."
The Government submit that the surveillance of the applicant's
contacts with his defence counsel lasted until 29 June 1991, the date
on which the statutory time-limit of two months for detention on remand
based solely on the risk of collusion expired. After that date the
applicant's meetings with his defence counsel were no longer under
surveillance. The measure imposed in the course of the criminal
investigations had been necessary in order to secure the success of the
investigations. In view of the fact that at the time of the
applicant's arrest further members of the gang to which he belonged had
not been discovered and arrested, it had been imperative that the
applicant had no possibility whatsoever to collude with third persons.
For this reason even the fact that he and his co-suspects had been
arrested had to be kept confidential in the beginning. These measures
eventually lead to the arrest of further three members of the gang.
The Government submit further that the temporary surveillance of
the applicant's contacts with his defence counsel at the beginning of
the criminal investigations did not hinder him in the exercise of his
defence rights. Contacts with his defence lawyer had not been
prohibited and after surveillance ceased he had at his disposal more
than five weeks before the bill of indictment was served on him and
more than half a year before the trial commenced during which time he
could communicate freely with his lawyer in order to prepare his
defence. Therefore the applicant's rights under Article 6 para. 3 (b)
and (c) (Art. 6-3-b, 6-3-c) of the Convention have not been violated.
This is contested by the applicant who submits that the
surveillance of the contacts with his lawyer ceased on 8 August 1991,
as the decision of the Judges' Chamber of 29 May 1991 explicitly
provided that the supervision may take place until the bill of
indictment was to be served on the applicant. He therefore had no
opportunity of confidential conversations with his defence lawyer until
that date. Such confidential conversations, however, would have been
necessary in order to formulate precise requests for the taking of
evidence which required a comprehensive and detailed information on the
course of the events. Therefore the surveillance exercised by the
Investigating Judge violated his defence rights under Article 6
para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) of the Convention.
The Commission recalls that an accused's right to communicate
with his defence counsel out of hearing of a third person is part of
the basic requirements of a fair trial in a democratic society and
follows from Article 6 para. 3 (Art. 6-3) of the Convention. If a
lawyer were unable to confer with his client and receive confidential
instructions from him without surveillance, his assistance would loose
much of its usefulness, whereas the Convention is intended to guarantee
rights that are practical and effective (see Eur. Court HR, S. v.
Switzerland judgment of 28 November 1991, Series A no. 220, p. 16,
para. 48). In the above mentioned case the Court also noted that the
risk of collusion merits consideration, however the possibility of
several defence counsel collaborating with a view to co-ordinating
their defence strategy was not sufficient to restrict the accused's
right of defence (S.v. Switzerland judgment, op. cit., p. 16, para.
49).
The Commission observes that after the applicant's taking into
detention on remand on 3 May 1991 the contact with his defence counsel
took place under surveillance of the Investigating Judge in accordance
with Section 45 para. 3 (1) of the Code of Criminal Proceedings, as the
detention on remand was ordered on the grounds, inter alia, of the
danger of collusion. On 14 May 1991 the Investigating Judge, under
Section 45 para. 3 (2) of the Criminal Code, extended the surveillance
until the bill of indictment was served on the applicant.
It is in dispute between the parties whether the surveillance
ordered by the Investigating Judge lasted until 29 June 1991, the date
on which the statutory time-limit of two months for detention on remand
based solely on the risk of collusion expired, as is the submission of
the Government, or, as the applicant submits, until 8 August 1991, when
the bill of indictment was served on him. However, according to
domestic law, surveillance had to stop on 29 June 1991 since from that
time onwards the applicant's detention on remand could no longer be
based on the ground of danger of collusion. The applicant does not
state explicitly that between 29 June and 8 August 1991 he had met his
defence counsel or that on such an occasion the Investigating Judge had
been present. If this had been the case the applicant could have
complained to the Judges' Chamber.
The Commission observes further that in the present case, unlike
in the above mentioned case of S. v. Switzerland, several co-suspects
were still at large at the time detention on remand was ordered against
the applicant. This circumstance could justify surveillance at that
stage. In this respect the Commission also observes that three further
co-suspects were arrested on 3 June 1991.
Moreover, after the surveillance had ceased, even if this had
been as late as the date given by the applicant, he had still more than
half a year before the trial commenced during which time he could
communicate freely with his lawyer in order to prepare his defence.
The applicant has not substantiated that due to the surveillance
exercised by the Investigating Judge the exercise of his right to
defence had been impaired.
The Commission therefore finds that there is no appearance of a
violation of the applicant's rights under Article 6 para. 3 (b) and (c)
(Art. 6-3-b, 6-3-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 para. 1
(Art. 6-1) of the Convention about a violation of the principle of
equality of arms in the proceedings on his plea of nullity before the
Supreme Court. He submits that the Procurator General made submissions
to the Supreme Court of which the applicant was not informed and to
which he had no possibility to react.
The Government submit that the Procurator General's observations
did not amount to comments on the facts of the case, nor did they
amount to factual arguments, such that the principle of "equality of
arms" was not violated. This is disputed by the applicant.
After an examination of this issue in the light of the parties'
submissions, the Commission considers that it raises questions of fact
and law which can only be determined by an examination of the merits.
It follows that this complaint cannot be declared inadmissible as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for inadmissibility
have been established.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint that he was not given the possibility to
react to submissions made by the Procurator General in the
proceedings before the Supreme Court
and, by a majority,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy