AS TO THE ADMISSIBILITY OF
Application No. 24430/94
by Bernhard LANZ
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
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 23 March 1992 by
Bernhard LANZ against Austria and registered on 17 June 1994 under file
No. 24430/94;
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 1949 and presently
detained at the Graz prison.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
A. Particular circumstances of the case
1. Preliminary investigations against the applicant and his
detention on remand
On 25 October 1991 the Investigating Judge at the Graz Regional
Court (Landesgericht) issued a warrant of arrest against the applicant
on suspicion of having committed fraud and falsification of documents.
The suspicion related to the applicant's business activities, and in
particular two real estate investment projects. The Investigating
Judge also issued a search warrant ordering a house search at the
premises of the SDBV company, a private company (Gesellschaft mit
beschränkter Haftung) for which the applicant acted as general manager
and to seize documents relating to the real estate investment projects.
The applicant was arrested, the house search was carried out in the
presence of the Investigating Judge and numerous documents were seized.
Later in the day the Investigating Judge questioned the applicant on
the suspicion against him. The Investigating Judge ordered the
applicant's detention on remand as he found that there existed a danger
of the applicant's absconding and of collusion. The Investigating
Judge found that the applicant frequently travelled abroad, had close
connections with the United States and an apartment in New York at his
disposal. There was also the risk that the applicant would attempt to
influence the employees of the SDBV company and to remove documents
which had not been found at the house search.
On 27 October 1991 the applicant requested his release from
detention on remand.
On 5 November 1991, after having questioned the applicant again,
the Investigating Judge ordered his detention on remand also on the
ground of danger of his committing offences. He found that there was
the risk that the applicant, if released, would continue to realise the
investment project at issue or other projects, using financial sources
not yet detected. The applicant appealed against this decision
claiming that he had not committed any criminal offence.
On 6 November 1991 the Judges' Chamber (Ratskammer) of the Graz
Regional Court, after an oral hearing in the presence of the applicant,
his defence counsel and the Public Prosecutor, dismissed the
applicant's request for release from detention on remand. The Judges'
Chamber found that no danger of absconding existed. However, the
danger of collusion continued to exist as there was the risk that the
applicant would try to influence witnesses not yet heard and to remove
traces of the offence. There was also the danger of his committing
offences.
On 11 November 1991 the Investigating Judge ordered that the
applicant's contacts with his defence counsel should take place under
the surveillance of the court because of the existence of a danger of
collusion. The Investigating Judge found that this measure was
necessary because co-suspects were still at large and several witnesses
had not yet been heard and there was a risk that the applicant could
influence them. The Investigating Judge stated that the validity of
this order would expire at the latest when the two months statutory
time limit for detention on remand based on the risk of collusion would
end. The applicant appealed against this decision. He submitted that
he did not oppose this measure in principle, however the measure
constituted an unnecessary limitation of his defence rights and the
Investigating Judge had failed to order this measure within 14 days as
prescribed by law.
On 20 November 1991 the applicant appealed against the refusal
of the Judges' Chamber to release him from detention on remand.
On 21 November 1991 the Judges' Chamber dismissed the applicant's
appeal against the Investigating Judge's search warrant and the order
for surveillance of the applicant's contacts with his defence counsel.
As regards the complaint about the house search, the Judges' Chamber
found that this measure had been carried out in a lawful manner. As
regards the complaint about the surveillance of the applicant's
contacts with his defence counsel, the Judges' Chamber found the
Investigating Judge's decision to be correct. This order did not
involve any criticism of the defence counsel or any reproach against
them of conduct contrary to law or the disciplinary rules of the
members of the bar, but merely had the purpose of preventing any
contacts whatsoever with third persons in order not to endanger the
success of the criminal investigations. The present case concerned
complicated business relations of the SDBV company managed by the
applicant and several other companies managed by him and the flow of
money between them.
Further witnesses could be identified only after all the documents
seized had been examined and the applicant should be prevented from
influencing them. Furthermore, the decision had been taken within the
time limit prescribed by S. 193 para. 3 of the Code of Criminal
Procedure. The Judges' Chamber also found the applicant complaint that
he did not have sufficient access to his case file as unfounded. The
Investigating Judge had granted access to the file to the official
receiver of the SDBV company and to the applicant's defence counsel and
the latter had also been given the possibility of making copies of the
documents in the file. The applicant's defence counsel had visited him
repeatedly and could have given him copies if he so wished. Moreover
when questioned by the Investigating Judge the applicant had been
informed of the contents of the file and about the statements of
witnesses already heard.
On 28 November 1991 the Graz Senior Public Prosecutor's Office
commented on the applicant's appeal against the Judges' Chamber's
decision of 6 November 1991.
On 12 December 1991 the Graz Court of Appeal (Oberlandesgericht)
decided on the appeals by the applicant and the Public Prosecutor's
Office against that decision. It found that a serious suspicion
existed against the applicant and referred to the details of the
criminal investigations. In particular there also existed the danger
that the applicant would abscond. He had close connections abroad, in
particular with the United States. His financial situation in Austria
was desperate and there were also reasons to assume that the applicant
had financial sources which had not yet been detected.
On 15 January 1992 the Judges' Chamber, after an oral hearing in
the presence of the applicant, his defence counsel and the Public
Prosecutor, dismissed a further request of the applicant for release
from detention on remand after an oral hearing. The Judges' Chamber
referred to its previous decision of 6 November 1991 and the Court of
Appeal's decision of 12 December 1991.
On 13 February 1992 the Court of Appeal, after having heard the
Senior Public Prosecutor's Office, dismissed the applicant's appeal
against the above decision.
On 11 March 1992 the Judges' Chamber, after having heard the
Public Prosecutor's Office, dismissed a further request by the
applicant for release from detention on remand.
After his conviction on 21 June 1992 the applicant filed further
requests for release from detention on remand. Such requests were
refused by the Judges' Chamber on 3 February 1993 and 6 April 1993.
Appeals were dismissed by the Court of Appeal on 18 February 1993 and
29 April 1993 respectively.
2. The trial against the applicant
On 14 February 1992 the Graz Public Prosecutor's Office filed a
bill of indictment against the applicant. The Public Prosecutor's
Office stated that the applicant had between 1987 and 1991,
misappropriated funds paid by investors for two real estate development
projects. Although he had promised to the investors to refurbish two
buildings owned by the investment scheme no significant construction
had been carried out and the money had disappeared. The applicant did
not file objections against the bill of indictment.
On 4 March 1992 the Graz Regional Court dismissed the applicant's
request for legal aid. It noted that the applicant was already
assisted by two defence counsel chosen by himself namely Mr. K. and Mr.
D. and that in particular the former had intensively prepared the
applicant's defence and contacted the applicant almost daily. Since
both defence counsel were still representing the applicant it could not
be seen that the applicant needed a third one.
On 10 March 1992 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's challenge for bias of all the judges of the
Graz Court of Appeal. The Supreme Court found that the applicant had
failed to show any elements which would indicate bias of all judges of
the Court of Appeal.
On 24 March 1992 Judge Grygar issued the summons for the
applicant's trial (Ausschreibung der Hauptverhandlung). He scheduled
the beginning of the trial for 21 April and summoned 15 witnesses. He
also instructed the court appointed expert for book-keeping to make an
exhaustive list of the documents used for the expert report.
Subsequently, on 7 April 1992, the Judge informed the applicant's
defence counsel thereof and invited him to inspect these documents at
the court. In view of the large number of documents he asked the
defence counsel to specify after inspection of the file the documents
of which he wished to receive a copy. Since the applicant did not make
any requests the Judge ordered on 15 April 1992 that copies of all
documents be made. On 17 April 1992 the copies were sent to the
applicant.
Meanwhile, on 8 April 1992 the applicant requested that he be
given the possibility to meet his defence counsel also on Saturdays and
Sundays. On 10 April 1992 the Presiding Judge of the trial court
informed the applicant that this request could not be granted for
organisational reasons. Meetings with defence counsel had to take
place between 7 and 17 hours from Monday to Friday.
On 9 April 1992 the Graz Court of Appeal dismissed the challenge
for bias of all judges of the Graz Regional Court. The Court of Appeal
noted that the applicant had argued that the judges of the Regional
Court interpreted the law in an arbitrary manner. The applicant,
however, had failed to give elements which would indicate bias of all
judges. The mere allegation that the courts interpreted the law in an
arbitrary manner was not sufficient.
On 16 April 1992 the President of the Graz Regional Court
dismissed a challenge of bias of Judge Grygar, the trial judge. He
noted that according to the applicant a tendency of bias could be seen
in the way the judge dealt with the applicant's request that the
transcript of the trial should be taken by a parliamentary shorthand
writer. However, no subjective reasons for bias could be seen.
Insofar as the applicant had challenged all judges in the area of the
Graz Court of Appeal for bias the President referred to the Court of
Appeal's decision of 9 April 1992.
On 16 April 1992, the last Thursday before Easter, the
applicant's defence counsel Mr. D. and Mr. K. revoked the power of
attorney given to them by the applicant.
On 17 April 1992 Judge Grygar appointed an ex-officio defence
counsel for the applicant and requested the Bar Association to nominate
such a defence counsel.
On 21 April 1992 Mr. Ku. was nominated as the applicant's ex-
officio defence counsel.
On 21 April 1992 the trial against the applicant started. The
Regional Court established the applicant's identity and the bill of
indictment was read out. The applicant objected to the appointment of
Ku. as his ex officio defence counsel because Ku. had allegedly
represented in the past third persons in civil proceedings against the
applicant and the firms he managed. Ku. stated that he was not aware
of such proceedings but requested the adjournment of the trial in order
to find out about these circumstances and to prepare the applicant's
defence. Thereupon the applicant requested that the trial should not
be adjourned. The Regional Court, however, decided to adjourn. From
23 April 1992 on the applicant was represented again by Mr. K. as
defence counsel. Further court hearings were held on 4, 5, 11, 12, 13,
14, 15, 18, 19, 20, 22, 25, 26 and 27 May and on 15, 16, 17, 18, 19,
20 and 21 June 1992.
In the course of the trial the Regional Court heard 52 witnesses,
some of them repeatedly on the applicant's request. Furthermore 5
experts, on book-keeping, building and construction matters, real
estate assessment, medicine and psychiatry were heard.
The applicant challenged the Presiding Judge for bias on various
occasions. These requests were dismissed on 16 April 1992, 11 June
1992, 25 September 1992 and 1 March 1993. The President of the Graz
Regional Court consistently found that no reasons for bias could be
made out. The Presiding Judge had dealt correctly with the applicant's
unusual request that a parliamentary shorthand writer should take the
transcript of the trial. The Presiding Judge furthermore had never
acted as Investigating Judge; the mere fact that during breaks of the
trial he had phoned witnesses requested in order to find out whether
they had any information at all on the subject of the trial and
communicating this information to the parties did not make him an
investigating judge. Also the fact that after the trial had ended the
applicant had filed a private prosecution for defamation against the
Presiding Judge was irrelevant.
At the trial the applicant requested the hearing of altogether
180 witnesses and the appointment of five further experts. On 11, 12
and 13 May 1992 and also on 15 June 1992 the Regional Court granted the
requests by the applicant for the hearing of witnesses. Between 4 May
1992 and 22 May 1992 the defence requested on each day of the trial the
hearing of between one and four witnesses. On 25 May 1992 the
applicant requested 21 witnesses to be heard and on 16 June 1992 he
requested 127 witnesses. These requests were refused by the Regional
Court, which found that the statements of the witnesses requested were
not relevant to the proceedings. The proceedings concerned two central
questions namely whether the applicant had carried out substantial
construction works on the apartment houses to which the investment
projects related and what had happened to the money of the investors
which had been transferred to the SDBV company. While the applicant
had consistently refused to give any valid explanation on these two
questions his requests for evidence related to different issues, namely
whether he had made unreported payments to his partners and whether the
investment project was a viable one. He had also requested the court
to hear all the investors on the question whether they felt cheated by
the applicant.
The applicant also repeatedly requested that the trial be
adjourned for lengthy periods and, towards the end of the trial,
requested that the trial be repeated or that the case be remitted to
the investigating judge.
3. The judgment
On 21 June 1992 the Graz Regional Court convicted the applicant
of aggravated fraud and sentenced him to four and a half years of
imprisonment. The Regional Court also acquitted the applicant of one
additional charge of fraud raised by the Public Prosecutor's Office at
the trial. The Regional Court found that in or about the beginning of
1986 the applicant had contacted two medical practitioners, F. and R.,
and proposed to them a real estate investment project which would
reduce their tax burden. The purpose of the project was to buy
apartment houses, to refurbish them and to rent out the apartments
therein. The applicant had used F. and R. as a front to give more
weight to his project. Initial losses could be subtracted by the
investors from their income tax. F. and R. agreed and in January 1987
the F.R.KG was founded. In November 1987 a further company was founded
relating to another real estate project. The applicant was the general
manager of these companies. The companies collected some 23 000 000 ATS
of investment in 1987. The projects, however, failed. The Tax Offices
refused to recognise the losses recorded by the investors in their tax
declarations, as the project was based on a model which had already
years before been considered as not being in conformity with tax
regulations. Moreover, no refurbishing works had been carried out on
the buildings. The money invested in the scheme had disappeared and,
because of the applicant's chaotic book-keeping, could not be traced.
The applicant had deceived the investors by omitting crucial
information on the project in the prospectus explaining the investment
scheme and, on the other hand, had not kept undertakings vis-a-vis the
investors. He had stated that if the whole sum for the projects could
not be raised the investment would be reimbursed. However, when it
became apparent that the subscriptions by investors were not
sufficient, he added fictitious investments, transferred payments to
the SDBV company, where, due to the applicant's chaotic book-keeping
and his habit of concluding only oral contracts, it disappeared.
On 9 September 1992 the judgment of some 150 pages and the
transcript of the trial of some 1400 pages were served on the parties.
4. The appeal proceedings
On 1 October 1992 the Public Prosecutor's Office filed a plea of
nullity and appeal against the part of the sentence concerning the
applicant's acquittal.
On 5 October 1992 the applicant filed a plea of nullity and
appeal. He complained, inter alia, that he had not been represented
properly by counsel on 21 April 1992, the first day of the trial; that
he had not been granted sufficient access to the case-file, otherwise
he would have been able to find further exonerating documents
concerning payments made by the SDBV company; that the court appointed
experts had been incompetent, biased and their fees had been too high;
that the defence had not been granted the possibility to consult with
the applicant during the night and at week ends during the trial; that
the court had refused to take evidence requested by the applicant; that
the evidence had been assessed incorrectly.
On 14 October 1992 the Presiding Judge dismissed a request by the
applicant for an amendment of the transcripts of the trial. He found
that the applicant had made the statements precisely as they were
recorded in the transcript and, in effect, his answers had been quite
ambiguous. However, he could not change their meaning retroactively
by amending the transcript.
On 22 October 1992 the applicant commented on the plea of nullity
lodged by the Public Prosecutor's Office. He submitted, inter alia,
that until the expiration of the time limit for filing his plea of
nullity the defence had had no sufficient possibility to inspect the
file, the contact between the applicant and the defence counsel having
been limited to the time between 8.00 and 16.30 hours on week days and
no meetings during the week end having been allowed.
On 17 November 1992 the Supreme Court requested the Presiding
Judge Grygar to inform it whether during the period for filing the plea
of nullity and appeal the defence had not had full access to the whole
of the case file.
On 27 November 1992 Judge Grygar submitted the following
statement to the Supreme Court: On 9 September 1992 the judgment was
served on the defence counsel and on 13 October 1992 the plea of
nullity and appeal of the public prosecutor. During the whole period
the defence had full access to the file. The file had been kept at the
disposal of the court, the applicant and the official receiver. From
further file notes it could be seen that the applicant and the defence
counsel had made use of this possibility. The applicant himself had
been granted access only during office hours and in case the file was
not needed by the Presiding Judge himself; these restrictions, however,
had not applied to his defence counsel.
On 24 December 1992 the Supreme Court decided that the applicant
should be granted a new time limit for filing his plea of nullity and
appeal since it could not be ruled out with certainty that the defence
had not had full access to the case file. On 7 January 1993 the Graz
Regional Court granted the applicant a new time limit of four weeks for
filing his plea of nullity and appeal.
On 11 January 1993 Judge Grygar laid a criminal information with
the Public Prosecutor's Office. He noted that one of the elements
which had persuaded the Supreme Court to grant a new time limit for
filing the plea of nullity and appeal by its decision of
24 December 1992 was that in a statement of the applicant's defence
counsel of 22 December 1992 the latter had complained that the
Presiding Judge had never dealt with some requests by the applicant.
As evidence he had submitted a request for inspection of the file dated
24 September 1992 which had allegedly remained unanswered. In the file
at the prison, however, the original of this request had been found and
there it was also noted that on 25 September 1992 the judge had granted
the request. The only explanation was that the applicant had succeeded
in secretly passing on a copy of this request to his defence counsel
before it had been put on the file.
On 3 February 1993 the Judges' Chamber dismissed a complaint by
the applicant that he had not had sufficient access to his case file.
The Judges' Chamber noted that on 8 January 1993 the applicant had been
granted access to the file and that on the same day the case file had
been brought to his cell at the prison. As the applicant had
complained on 11 January 1993 that the file had not been complete since
its index had been missing an inspection of the applicant's cell had
been carried out on 15 January 193 by Judge Grygar in the presence of
five witnesses. The result had been that the case file was complete
and in particular that the index of the case file had not been missing.
The complaint was therefore unfounded. On 18 February 1993 the Court
of Appeal dismissed the applicant's complaint against the Judges'
Chamber's decision of 3 February 1993.
On 19 February 1993 the applicant again filed a plea of nullity
and an appeal against the sentence. The writ repeated in substance the
arguments raised earlier.
On 25 February 1993 the Public Prosecutor's Office submitted the
following statement to the Regional Court:
"after examination returned with the statement that no
submissions are made on the applicant's "new" plea of nullity and
appeal.
for the use of the attorney general's department a copy of
the judgment should be attached to the file."
On 30 March 1993 the Graz Public Prosecutor's Office withdrew its
plea of nullity.
On 27 April 1993 the Procurator General (Generalprokurator)
submitted the following comments on the applicant's plea of nullity:
"In the view of the Procurator General the plea of nullity of the
accused Bernhard Lanz can be dealt with under Section 285d of the
Code of Criminal Procedure. The transmission of a decision is
requested. The plea of nullity lodged by the Public Prosecutor's
Office has been withdrawn by the attached declaration of
30 March 1993."
5. The Supreme Court's decision on the applicant's plea of nullity
On 9 June 1993 the Supreme Court rejected as inadmissible the
applicant's plea of nullity.
As regards the applicant's submission that the Presiding Judge
had been excluded from presiding over the trial because he had carried
out the function of an investigating judge, the Supreme Court noted
that the Presiding Judge had never acted as investigating judge. The
Supreme Court noted that in the course of the preparation of the trial
he had contacted one of the experts to find out whether the expert's
report had to be supplemented. He had also contacted in the course of
the trial a person in order to find out if this person had any relevant
knowledge before summoning this person as witness. These steps were
taken by the Presiding Judge in the exercise of his duty to gather
evidence ex officio and were not the exercise of the functions of an
investigating judge.
As regards the complaint that the applicant had not been properly
represented by counsel on the first day of the trial, the Supreme Court
noted that on 21 April 1992 the Regional Court had postponed the
opening of the trial until the ex-officio defence counsel had appeared.
Once the ex-officio defence counsel had requested the adjournment of
the trial this request had been granted. As from 23 April 1992 the
applicant was again represented by Mr. K. The applicant was therefore
assisted by a defence counsel throughout the trial.
As regards the applicant's submissions that the court appointed
experts were biased, the Supreme Court found that arguments against the
independence of an expert could not be based merely on the unfavourable
contents of an expert's report. No other arguments had been raised by
the applicant.
As regards the applicant's complaint about the Regional Court's
refusal to hear certain witnesses, the Supreme Court noted that the
numerous and repeated requests for taking evidence towards the end of
the trial had given the Regional Court the impression of an intention
to delay proceedings. This impression was strengthened by the quality
of some requests for evidence, such as the request for obtaining a
report by an expert for law in order to verify whether the Presiding
Judge was competent under the Code of Criminal Procedure to take
certain decisions. Even if the decisions taken by the Regional Court
on the applicant's requests for evidence might have been influenced by
the concern to avoid unnecessary prolongation of the trial, scrutiny
of the decisions given showed that the trial court had acted correctly
in refusing the applicant's requests.
The Supreme Court examined one by one the applicant's requests
for taking evidence and the reasons for their dismissal by the Regional
Court one by one. It found that most of the requests were not concrete
enough as regards the issue to be proved and therefore amounted to
inadmissible "fishing expeditions", e.g. the applicant's request to
hear more than a hundred investors in order to find out whether they
felt deceived by the applicant. Furthermore, some of the requests were
irrelevant as they did not bear on the charge laid against the
applicant. It had therefore been irrelevant to take evidence relating
to the feasibility of the project because the charge against the
applicant consisted in the reproach that he did not have the serious
intention to realise the project according to the undertakings given.
Also the applicant's request to have the real property evaluated again
because any possible increase in the value without the applicant's
contribution had nothing to do with the charge that he had used funds
contrary to the undertakings given.
Several of the applicant's requests for taking evidence had been
made towards the end of the trial. In such circumstances there could
be the impression that the applicant's defence and the modification of
his position was merely an adaption to the results of the evidence
already taken. In such a situation a request for evidence must also
include arguments as to reasons why the evidence, if taken, would
prove the assertions of the applicant. This applied in particular to
requests to hear again witnesses already heard by the court. Thus the
request to hear again witness R. who would state that he had received
the purchase price for the real property was irrelevant as the
applicant merely alleged at a very late stage that he had made a
payment in cash without recording it in the book-keeping and without
giving any details as to time and place of payment. The Supreme Court
therefore found that the Regional Court had correctly rejected the
applicant's requests for taking evidence.
Also the requests for repeating the trial because the transcripts
of the trial had not been ready were irrelevant as the law did not
provide for a repetition of the trial on this ground and a repetition
could not remedy the alleged failure complained of.
The Supreme Court also found that during the trial the applicant
had sufficient possibility to comment on the statements of the
witnesses.
The Supreme Court also rejected the applicant's complaints about
the assessment of evidence by the trial court as the Regional Court's
judgment did not give rise to any doubts as to the logic of the court's
argumentation or its formal completeness.
6. The Court of Appeal's decision on the applicant's appeal
On 30 August 1993 the Graz Court of Appeal, after an oral hearing
in which the applicant and his defence counsel participated, granted
the Public Prosecutor's appeal against sentence and increased the
sentence of imprisonment to five and a half years. It referred the
applicant as regards his appeal to the decision on the Public
Prosecutor's appeal. The Court of Appel weighed mitigating and
aggravating circumstances and found that a higher sentence had to be
imposed on the applicant.
7. The applicant's contacts with his relatives and his defence
counsel
During the applicant's detention on remand, including the period
after the proceedings at first instance had been terminated, the
judicial authorities took numerous decisions, mainly following requests
and complaints by the applicant concerning his contacts with his
family, defence counsel and the official receiver.
a. Visits
On 17 December 1991 the Investigating Judge ordered that the
applicant could receive three visits of 15 minutes each per week, not
including his escorted leaves to the official receiver. He found that
in the past the applicant had received so many visits at the prison
that the high number of these visits had caused difficulties to the
prison administration.
On 11 March 1992 the Judges' Chamber dismissed several complaints
lodged by the applicant. As regards the complaint concerning the
insufficient possibility to receive visits at the prison the Judges'
Chamber noted that the applicant had been allowed to receive visits
three times a week which was more than what was provided for in S. 187
para. 3 of the Code of Criminal Procedure, i.e. two visits of fifteen
minutes per week.
On 21 October 1992 the Judges' Chamber again dismissed a
complaint by the applicant that visits allowed to him were insufficient
and referred to its decision of 11 March 1992.
b. Correspondence
According to a file note of the Investigating Judge of
14 January 1992, the applicant had complained that prison officers had
checked his outgoing mail. The Judge noted that according to prison
rules letters had to be handed to the prison officers unsealed in order
to verify that they did not contain any hidden messages. He also noted
that the applicant had admitted to smuggled out three letters with the
assistance of his defence counsel.
On 15 January 1992 the Judges' Chamber dismissed various
complaints by the applicant. As regards a complaint by the applicant
about interference with the correspondence with his defence counsel,
the Judges' Chamber noted that according to S. 188 of the Code of
Criminal Procedure the censoring of the correspondence of a person kept
in detention on remand was the sole competence of the Investigating
Judge. The applicant complained that the staff of the prison read his
letters. However the Investigating Judge had no competence to give
instructions to the prison staff, this being the task of the prison's
director. The Investigating Judge had informed the director of the
prison of the applicant's complaint and the latter had denied that
prison officers had ever read letters by or to the applicant.
On 11 March 1992 the Judges' Chamber dismissed complaints lodged
by the applicant concerning, inter alia, delays caused by the
Investigating Judge in forwarding letters written by the applicant.
The Judges' Chamber found that no significant delays in dispatching the
applicant's letters had occurred taking into account that the applicant
wrote numerous letters which had to be censored by the Investigating
Judge. Insofar the applicant had complained that letters to his
defence counsel had not been accepted sealed and that letters from his
defence counsel had been opened, the Judges' Chamber found that the
Investigating Judge had not been responsible for allegedly unlawful
acts of the prison staff. The applicant should have filed a complaint
under the Enforcement of Sentences Act (Strafvollzugsgesetz).
On 16 December 1992 the Administrative Court
(Verwaltungsgerichtshof) dismissed the applicant's complaint against
the Independent Administrative Panel's (Unabhängiger Verwaltungssenat)
decision of 6 October 1992 by which a complaint of the applicant
concerning interference with the correspondence with his defence
counsel had been rejected. The Administrative Court noted that on
9 July 1992 a prison officer had refused to accept a closed letter
addressed to the defence counsel. On 19 July 1992 a letter had been
given to the applicant only after it had been opened. This complaint
was refused by the Independent Administrative Panel because it had not
been competent to deal with such a complaint. The Administrative Court
found that the Independent Administrative Panel had correctly rejected
the applicant's complaint.
c. Escorted leave
Following several orders by the Investing Judge and later on by
the Presiding Judge the applicant was granted escorted leave on a daily
basis to meet the official receiver. These visits were necessary for
the official receiver to organise the bookkeeping of the companies
controlled by the applicant. These visits, which initially had also
been granted on Sundays, were subsequently only granted for weekdays
because the prison authorities complained that daily escorted leave
created serious problems for the organisation of the duties of the
prison officers. During the applicant's trial escorted leave was
suspended but it continued after the trial finished. According to a
decision by the Judges' Chamber of 14 December 1992, by which a
complaint by the official receiver was dismissed, escorted leave had
been reduced for organisational reasons while the official receiver had
been granted the right to visit the applicant daily at the prison.
d. Defence lawyer
On 11 March 1992 the Judges' Chamber dismissed several complaints
lodged by the applicant. As regards the complaint that the applicant
had been hindered from meeting his defence counsel the Judges' Chamber
noted that the applicant only had a right to confer with his defence
counsel in the premises of the court but not when he happened to meet
him on the occasion of escorted leave to the official receiver.
On 8 April 1992 the applicant requested that he be given the
possibility to meet his defence counsel also on Saturdays and Sundays.
On 10 April 1992 the director of the prison at the Graz Regional Court
informed the Presiding Judge that it was not possible to organise
visits of defence counsel during weekends. Meetings with defence
counsel had to take place between 7 and 17 hours from Monday to Friday.
On 10 April 1992 the Presiding Judge of the trial court informed the
applicant that this request could not be granted for organisational
reasons. The applicant could therefore meet his defence counsel only
during working hours.
On 22 April 1992 the Judges' Chamber dismissed several complaints
of the applicant. As regards the complaint that prison wardens had
prevented him from contacting his defence counsel it noted that this
contact had occurred on the occasion of an escorted leave. However,
under the Code of Criminal Procedure contacts with defence counsel
without any surveillance were only allowed in the prison.
On 13 May 1992 the Court of Appeal rejected several complaints
by the applicant. Concerning measures taken by the Investigating
Judge, e.g. regulation of the applicant's contacts with his defence
counsel, it found that he should have filed a complaint with the
Judges' Chamber.
On 2 October 1992 the applicant requested authorization to meet
his defence counsel also on weekends at the prison. On 21 October 1992
the Judges' Chamber dismissed this and several other complaints.
e. Press conference
On 22 April 1992 the Judges' Chamber dismissed several complaints
by the applicant. As regards his complaint about the refusal of a
press conference in the prison it found that the provisions of the Code
of Criminal Procedure did not grant a detained accused the right to
hold press conferences.
B. Relevant domestic law
The following account of the relevant provisions of the Code of
Criminal Procedure (Strafprozeßordnung) is based on the law as in force
until 1 January 1994 when the Code of Criminal Procedure Amendment Act
(Strafprozeßänderungsgesetz 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 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 due to specific circumstances a danger exists that
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 contact with the defence counsel may only be exercised
as long as the detention on remand is based on a danger of collusion
(S. 180, S. 193 para. 3).
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
severance 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.
Under Section 120 para. 1 of the Enforcement of Sentences Act
prisoners can file a complaint concerning any decision or measure
affecting their rights or any conduct of the prison staff affecting
their rights. Such complaints have to be filed within fourteen days.
They have to be decided upon by the director of the prison or if the
complaint is directed against the director by the Ministry of Justice
(S. 121 para. 1).
COMPLAINTS
The applicant raises numerous complaints about his detention on
remand, his conviction and the proceedings leading thereto. In these
respects he invokes Articles 3, 5, 6, 8, 9, 10 and 13 of the
Convention, Article 1 of Protocol No. 1, Article 1 of Protocol No. 4
and Article 2 of Protocol No. 7.
He submits in particular that the Regional Court refused to hear
the witnesses and to take other evidence requested by him; that on the
first day of the trial he was not properly represented by a defence
counsel; that he did not have sufficient access to his case file, and
that he did not have computer facilities at his disposal for preparing
his defence; that the judges dealing with his case were biased against
him; that also the experts appointed by the court were biased,
incompetent and had submitted reports which were incorrect and of
insufficient quality; that he could not effectively prepare his defence
because his defence counsel had only been allowed to visit him in the
prison during office hours but not in the evening and at week-ends;
that not all documents were read out by the court at the trial; that
the authorities did not allow him to hold a press conference; and that
he had not been heard by the Supreme Court on his plea of nullity.
The applicant also complains under Article 6 of the Convention
that the Procurator General's comments on his plea of nullity were not
served on him and that the Senior Public Prosecutor also made written
submissions on his appeal against sentence which were not served on
him.
Invoking Article 5 of the Convention the applicant complains
about his detention on remand and submits in particular that there had
neither been a concrete suspicion against him nor sufficient reasons
for ordering his detention on remand; that he was not informed promptly
and in detail on the suspicion against him as the questioning by the
Investigating Judge on 25 October 1991 did not relate to any precise
element of suspicion and that he received the bill of indictment only
four months after his arrest; that his detention on remand lasted
unreasonably long and that the hearings on his requests for release
from detention on remand were not held publicly.
The applicant also complains that while kept in detention on
remand the contacts to the outside world, his family, his defence
counsel and the official receiver were unduly restricted. He was not
granted enough visits from his family. He was hindered in meeting his
defence counsel and he had not been brought often enough to the
official receiver. He also complains that his correspondence,
including the one with his defence counsel was censored by the
authorities. His correspondence with his defence counsel, although
marked by a stamp "no censoring", was opened, the contents checked and
outgoing letters to his defence counsel were only accepted unsealed.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention that in the criminal proceedings against him the Procurator
General submitted comments on his plea of nullity to the Supreme Court
of which he was not informed and to which he could not react. Also the
Senior Public Prosecutor made written submissions on the applicant's
appeal against sentence which were not served on him.
He further complains that his contacts with his defence counsel
were kept under surveillance by the Investigating Judge during the
first two months of his detention on remand.
The applicant also complains that in the proceedings concerning
his requests for release before the Judges' Chamber the Public
Prosecutor's Office made submissions to which he had no possibility to
reply.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of these complaints and that it is
therefore necessary in accordance with Rule 48 para. 2 (b) of the Rules
of Procedure, to give notice of this part of the application to the
respondent Government.
2. The applicant raises several complaints about his conviction and
the proceedings leading thereto.
Article 6 paras. 1 and 3 (Art. 6-1, 6-3) 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 and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ...
3. Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
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 or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require;
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him; ..."
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (see No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur.
Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994,
Series A no. 288, p. 20, para. 61; Klass v. Germany judgment of 22
September 1993, Series A no. 269, p. 17 para. 29).
It seems, in the Commission's view, appropriate to look at the
applicant's complaints about the taking of evidence form the points of
view of paragraphs 1 and 3 of Article 6 (Art. 6-1+6-3) taken together,
especially as the guarantees on paragraph 3 represents aspects of the
concept of a fair trial contained in paragraph 1 (Eur. Court HR,
Unterpertinger v. Austria judgment of 24 November 1986, Series A no.
110, p. 14, para. 29).
a. The applicant submits in particular that the Regional Court
refused to hear the witnesses and to take other evidence requested by
him.
The Commission recalls, however, that, as a general rule, it is
for the national courts to assess the evidence before them as well as
the relevance of the evidence which the defendant seeks to adduce.
More specifically, Article 6 para. 3 (d) (Art. 6-3-d) leaves it to
them, again as a general rule, to assess whether it is appropriate to
call witnesses, in the "autonomous" sense given to that word in the
Convention system; it does not require the attendance and examination
of every witness on the accused's behalf (cf. Eur. Court HR, Bricmont
v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89,
Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-
33, para. 33). In respect of witnesses on behalf of the accused, only
exceptional circumstances could lead the Convention organs to conclude
that a refusal to hear such witnesses violated Article 6 (Art. 6) of
the Convention (Eur. Court HR, Bricmont v. Belgium judgment, loc.
cit.). Thus, the complete silence in a judgment as to why the court
rejected the hearing of a witness for the defence is not consistent
with the concept of a fair trial which is the basis of Article 6
(Art. 6) of the Convention (Eur. Court HR, Vidal v. Belgium judgment,
loc. cit.).
The Commission observes that the Regional Court convicted the
applicant on 21 June 1992 after having heard, apart from the applicant
himself, 52 witnesses and 5 experts. The Regional Court granted
several requests by the applicant for the hearing of witnesses for the
defence and the taking of other exonerating evidence. It did, however,
dismiss numerous requests by the applicant for the hearing of evidence
or obtaining expert opinions and explained why it considered the
hearing of the witnesses and the taking of the other evidence requested
by the applicant as irrelevant to the proceedings. Also the Supreme
Court in its decision of 9 June 1993 on the applicant's plea of nullity
explained in detail why the Regional Court had acted correctly in
refusing the evidence proposed by the applicant.
The Commission finds no sufficient grounds to form the view that
the failure to hear the witnesses concerned was incompatible with
Article 6 (Art. 6) as it did not unduly restrict the rights of the
defence and thus did not render the proceedings unfair.
b. The applicant also submits that on the first day of the trial he
had not been properly represented by a defence counsel
However, the Commission observes that on 16 April 1992, shortly
before the trial started, both defence counsel chosen by the applicant
withdrew from representing him. On the first day of the trial,
21 April 1992, the applicant was represented by an ex-officio defence
counsel who immediately asked for an adjournment of the trial in order
to prepare the applicant's defence. At the trial the applicant even
opposed an adjournment of the trial. On 23 April 1992 Mr. K., one of
the defence counsel who had previously represented the applicant, again
took over the applicant's defence. On that first day of the trial the
Court, apart from establishing the applicant's identity, took no steps
in the proceedings. Moreover Mr. K. was familiar with these events as,
according to the judgment of the Regional Court, he had been amongst
the audience.
In such circumstances the Commission cannot find that the
applicants rights under Article 6 (Art. 6) of the Convention were
infringed in this respect.
c. The applicant complains that not all documents were read out at
the trial.
The Commission observes, however, that the applicant did not give
his consent to having documents in the file treated as having been read
out, which appears to be a normal court practice in criminal cases in
Austria. On the contrary he insisted that the documents be read out
and accordingly the court sessions on 18, 19 and 20 June 1992 were
spent in reading out numerous documents.
The Commission finds that the applicant has not specified which
documents if any were not read out and such a failure could have
rendered the proceedings against him unfair.
d. The applicant also complains that he did not have sufficient
access to his case file.
It appears, however, from the material before the Commission,
that in the criminal proceedings the applicant and his defence counsel
were repeatedly granted access to the voluminous case file. Moreover,
before the beginning of the trial, not only the applicant's defence
counsel but also the applicant himself were provided, on 17 April 1992,
with photocopies of the file. At the stage of the second instance
proceedings the Supreme Court, on 24 December 1992, granted the
applicant a new time limit for filing his plea of nullity and appeal
as it could not be ruled out with certainty that he had not at all
times had unhindered access to his case file.
In such circumstances it would appear that the applicant was in
fact granted sufficient access to his case file.
e. The applicant also complains that the judges dealing with his
case were biased against him.
The Commission recalls that when the impartiality of a tribunal
for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention is
being determined, regard must be had not only to the personal
conviction of a particular judge in a given case - the subjective
approach - but it must also be considered whether there were sufficient
guarantees to exclude any legitimate doubt in this respect - the
objective approach (cf. Eur. Court HR, Piersack v. Belgium judgment of
1 October 1982, Series A no. 53, p. 14, para. 30; Bulut v. Austria
judgment of 22 February 1996, Reports 1996-II, p. 356, para. 31). As
to the subjective test, the personal impartiality of a judge must be
presumed until there is proof to the contrary (Bulut v. Austria
judgment, op. cit., para. 32; Padovani v. Italy judgment of 26 February
1993, Series A no. 257-B, p. 20, para. 26). As regards the objective
test, it must be determined whether there are ascertainable facts which
may raise doubts as to a judge's impartiality. What is at stake is the
confidence which the courts in a democratic society must inspire in the
public. In deciding whether in a given case there is a legitimate
reason to fear that a particular judge lacks impartiality appearances
may be of certain importance, although the opinions of the persons
concerned are not in themselves decisive. What is decisive is whether
such fears can be regarded as objectively justified (Piersack judgment,
loc. cit.; Kraska v. Switzerland judgment of 19 April 1993, Series A
no. 254-B, p. 50, para. 32).
The Commission observes that the applicant, on various occasions
challenged for bias judges and even whole courts dealing with his case.
Most of these challenges, in particular those concerning entire courts
such as the ones dismissed by the Supreme Court on 10 March 1992 and
the Graz Court of Appeal on 9 April 1992, in which it was merely
alleged in a general manner that the courts concerned had incorrectly
applied the law, do not disclose any substantiated elements of bias
based on subjective or objective considerations. As regards the
challenges of Judge Grygar, the presiding judge at the trial, the
Commission observes that the applicant essentially argued that this
Judge had also acted as investigating judge. However, according to the
decisions of the President of the Graz Regional Court Judge Grygar had,
in intervals during the trial merely enquired with persons requested
to be heard as witnesses whether they had any relevant information to
give before summoning them. Having regard to the Convention organ's
case law on this matter, the Commission cannot find that such a conduct
gives rise to legitimate doubts as to the impartiality of that judge
(see Eur. Court HR, Fey v. Austria judgment of 24 February 1993,
Series A no. 255-A, p. 13-14, para. 35; Bulut v. Austria judgment, op.
cit., para. 34).
f. The applicant complains that the Supreme Court did not hold a
hearing on his plea of nullity.
The Commission recalls, however, that in case a public hearing
has been held at first instance, the absence of "public hearings" at
second or third instance may be justified by the special features of
the proceedings at issue. Also the nature of proceedings whereby a
plea of nullity is rejected as inadmissible by the Supreme Court
(S. 285d of the Code of Criminal Procedure) can be compared to that of
proceedings for leave to appeal which do not necessitate the holding
of a public hearing (Bulut v. Austria judgment, op. cit., p. 358,
paras. 41-42).
In the present case a public hearing had been held at first
instance before the Graz Regional Court. The Supreme Court, on
9 June 1993, rejected the applicant's plea of nullity as inadmissible.
Accordingly the Commission does not find that the fact that the
Supreme Court did not hold a hearing on the applicant's plea of nullity
discloses a violation of the applicant's rights under Article 6
(Art. 6) 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.
3. The applicant complains further about his detention on remand and
invokes Article 5 (Art. 5) of the Convention, which, insofar as
relevant, reads as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
2. Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him.
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. The applicant submits that at no stage did there exist a serious
suspicion against him of having committed a criminal offence and that
there were no grounds for ordering and upholding his detention on
remand.
The Commission recalls that the reasonable suspicion required by
Article 5 para 1 (c) (Art. 5-1-c) of the Convention need not be based
on facts of the same level as those necessary to justify a conviction
or even the bringing of a charge as it is precisely the purpose of the
official investigation, which the detention is intended to facilitate,
to prove the reality and nature of the offences charged (see Eur. Court
HR, Murray v. the United Kingdom judgment of 28 October 1994, Series
A no. 300-A, p. 27, para. 55; No. 10803/84, Dec. 16.12.87, D.R. 54,
p. 35).
In the present case the Investigating Judge, when ordering the
applicant's detention on remand on 25 October 1991, relied on the
strong suspicion against the applicant that he had committed fraud and
falsification of documents in relation with two real estate investment
projects. The Investigating Judge also found that there existed a
danger of the applicant's absconding and of collusion. The
Investigating Judge found that the applicant frequently travelled
abroad, had close connections to the United States and an apartment in
New York at his disposal. There was also the risk that the applicant
would attempt to influence the employees of the SDBV company and to
remove documents which had not been found in the house search. In a
subsequent decision the Investigating Judge also found that there was
the risk that the applicant would commit offences if released, since
there were reasons to assume that he would continue to realise the
investment project at issue or other projects, using financial sources
not yet detected. These decisions were, upon an appeal by the
applicant, examined by the Judges' Chamber of the Graz Regional Court
on 6 November 1991 and by the Graz Court of Appeal on 12 December 1992.
Having regard to the above decisions and subsequent decisions by
the Judges' Chamber of 15 January 1992 and 11 March 1992, the
Commission finds that there were sufficient and relevant grounds
justifying the applicant's detention on remand throughout the period
of his detention.
Accordingly there is no appearance of a violation of Article 5
para. 1 (Art. 5-1) 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.
b. The applicant further complains about the length of his detention
on remand.
The Commission finds that this complaint falls to be considered
under Article 5 para. 3 (Art. 5-3) of the Convention.
As regards the period to be taken into consideration for the
purposes of Article 5 para. 3 (Art. 5-3) of the Convention, the
Commission notes that this period started on 25 October 1991, when the
applicant was arrested and ended on 21 June 1992, when the applicant
was convicted by the Graz Regional Court. The period following the
applicant's conviction at first instance cannot be taken into account
for the purpose of Article 5 para. 3 (Art. 5-3) of the Convention (Eur.
Court HR, B. v. Austria judgment of 28 March 1990, Series A no. 175,
p. 14, para. 36). Thus, the period of detention on remand to be
considered by the Commission is 7 months and 3 weeks.
According to the relevant case-law of the Convention organs, two
elements must be taken into account in assessing the reasonableness of
the length of pre-trial detention. On the one hand, compelling reasons
which make the detention on remand necessary must exist throughout the
period of detention. On the other hand, the authorities and courts
must conduct the criminal investigations and proceedings expeditiously
during this period (see for instance Eur. Court HR, Letellier v. France
judgment of 26 June 1991, Series A no. 207, p. 18, para. 35; W. v.
Switzerland judgment of 26 January 1993, Series A no. 254, p. 15,
para. 30).
As regards the first element, the Commission recalls its finding
above that there were sufficient and relevant grounds justifying the
applicant's detention on remand throughout the period of his detention
(see point 3.a. above).
It remains to be examined whether the domestic authorities
displayed special diligence in the conduct of the proceedings
(Letellier v. France judgment, loc cit.; W. v. Switzerland judgment,
loc. cit.).
The Commission notes that on 25 October 1991 the applicant was
taken into detention on remand, on 14 February 1992 the Graz Public
Prosecutor's Office filed a bill of indictment against the applicant
and between 21 April 1992 and 21 June 1992 the applicant's trial took
place during which period 22 court hearings were held.
Having regard to these circumstances the Commission finds that
the period of the applicant's detention on remand did not exceed a
reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) 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.
c. The applicant also complains that he was not informed promptly
and in detail of the suspicion against him as the questioning by the
Investigating Judge on 25 October 1991 did not relate to any precise
element of suspicion and he received the bill of indictment only four
months after his arrest.
The Commission finds that this complaint falls to be considered
under Article 5 para. 2 (Art. 5-2) of the Convention. It recalls that
Article 5 para. 2 (Art. 5-2) of the Convention contains the elementary
safeguard that any person arrested should know why he is being deprived
of his liberty (Eur. Court HR, Fox, Campbell and Hartley v. the United
Kingdom judgment of 30 August 1990, Series A no. 182, p. 19, para. 40).
The further purpose behind the guarantee in Article 5 para. 2
(Art. 5-2) is to enable the arrested person to challenge the
reasonableness of the suspicion against him because this is a
substantive requirement for detaining him under Article 5 para. 1 (c)
(Art. 5-1-c). The arrested person should be informed sufficiently
about the facts and the evidence which are proposed to be the
foundation of a decision to detain him (No. 8098/77, Dec. 13.12.78,
D.R. 16, p. 111).
From the material before it the Commission finds that the
applicant, on the occasion of his arrest on 25 October 1991, was
informed sufficiently by the Investigating Judge of the charges against
him for the purpose of Article 5 para. 2 (Art. 5-2) of the Convention.
The fact that the bill of indictment was served on the applicant four
months later is of no relevance in this context as neither the
Convention nor domestic Austrian law require the information under
Article 5 para. 2 (Art. 5-2) of the Convention to be given in the form
of a bill of indictment.
Accordingly there is no appearance of a violation of Article 5
para. 2 (Art. 5-2) 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.
4. The applicant complains that while being kept in detention on
remand he was not granted sufficient possibility to meet his family.
The Commission finds that this complaint falls to be considered
under Article 8 (Art. 8) of the Convention which reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission observes, however, that at no time was the
applicant deprived of the possibility to meet his family. Rather it
appears from the decisions taken by the Investigating Judge on
17 December 1991 that the applicant was allowed to receive three visits
of 15 minutes each per week. The Judges' Chamber, in its decision on
the applicant's appeal noted that the number of visits granted to the
applicant per week was more than what was provided for in the relevant
provision of the Code of Criminal Procedure. The Commission further
observes that the applicant had the possibility to correspond with his
family.
In these circumstances the Commission cannot find that the
Investigating Judges' decision to allow the applicant three visits per
week exhibits any lack of respect for the applicant's private or family
life.
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.
5. The applicant also complains that his correspondence with his
defence counsel was interfered with by the prison staff in that letters
from his defence counsel, although marked by a stamp "no censoring",
were opened, the contents checked and outgoing letters to his defence
counsel were only accepted unsealed.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of Article 6 or Article 8 (Art. 6, 8) of the Convention as,
under Article 26 (Art. 26) of the Convention it may only deal with a
matter after all domestic remedies have been exhausted according to the
generally recognised rules of international law, and within a period
of six months from the date on which the final decision was taken.
In this respect the Commission observes that the applicant has
not filed a complaint with the prison director under S. 121 of the
Enforcement of Sentences Act or a further complaint with the
Constitutional Court and the Administrative Court. Rather the
applicant filed a complaint with the Judges' Chamber which on
15 January 1992 and 11 March 1992 declared that it was not competent
to examine complaints against prison staff, given that the
Investigating Judge had not ordered the censoring of the applicant's
correspondence with his defence counsel. He also filed a complaint
with the Independent Administrative Panel which likewise declared that
it was not competent to deal with the applicant's complaint about
interference with his correspondence. It follows that the applicant
has not complied with the requirement as to the exhaustion of domestic
remedies contained in Article 26 (Art. 26) of the Convention.
This part of the application must, therefore, be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
6. The Commission has examined the applicant's remaining complaints
as they have been submitted by him. However, in the light of all the
material in its possession and, in so far as the matters complained of
are within its competence, the Commission finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols.
It follows that the remaining complaints must be rejected in
accordance with Article 27 (Art. 27) of the Convention.
For these reasons, the Commission
DECIDES TO ADJOURN the examination of the applicant's
complaints concerning the failure to communicate to the
applicant the Procurator General's comments on the
applicant's plea of nullity; the complaint concerning the
failure to communicate to him written comments by the
Senior Public Prosecutor on his appeal against the
sentence; the complaint that the Judges' Chamber of the
Graz Regional Court dismissed requests by the applicant for
release from detention on remand and the Graz Court of
Appeal dismissed appeals against such decisions after
having heard the Public Prosecutor's Office or the Senior
Public Prosecutor's Office respectively without giving the
applicant the possibility to react thereto; the complaint
about the surveillance of the applicant's contacts with his
defence counsel during his detention on remand.
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy