AS TO THE ADMISSIBILITY OF
Application No. 20055/92
by Günter MOSER
against Austria
The European Commission of Human Rights (First Chamber)
sitting in private on 13 April 1994, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 15 May 1992
by Günter Moser against Austria and registered on 27 May 1992
under file No. 20055/92;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the
respondent Government, after two extensions of the time-limit,
on 17 March 1993 and the observations in reply, after an
extension of the time-limit, submitted by the applicant on 23
June 1993;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1955, is an Austrian national and
resident at Neulengbach. When lodging his application he was
detained at a prison in St. Pölten. Before the Commission he is
represented by Mr. S. Gloß, a lawyer practising in St. Pölten.
A. Particular circumstances of the case
On 24 August 1990 the applicant and his wife were arrested
on the suspicion of having committed grave fraud. On 26 and 27
August 1990 the applicant's wife and the applicant, respectively,
were taken into detention on remand. The Investigating Judge at
the St. Pölten Regional Court found that there was a risk of
collusion and of the applicant's absconding, pursuant to S. 180
para. 2 of the Austrian Code of Criminal Procedure
(Strafprozeßordnung). In the ensuing criminal proceedings against
him, the applicant was assisted by defence counsel.
On 5 September 1990 the Judges' Chamber (Ratskammer) at the
St. Pölten Regional Court (Landesgericht) dismissed the
applicant's appeal (Beschwerde) against the order of his
detention on remand. The Judges' Chamber confirmed the risk of
collusion and of his absconding, and also ordered his continued
detention in view of the risk of a repetition of the offences
concerned.
On 9 October 1990 the Vienna Court of Appeal
(Oberlandesgericht) upheld the applicant's further appeal against
the decision of the Judges' Chamber to the extent that the
detention order was based on the risk of his absconding, and
dismissed the remainder of the appeal. The applicant continued
to be detained.
On 2 November 1990, 5 February and 9 August 1991 the Vienna
Court of Appeal, on the basis of S. 193 para. 4 of the Code of
Criminal Procedure extended the maximum period of the applicant's
detention on remand to three months, one year and eighteen
months, respectively. The applicant's wife likewise remained in
detention on remand on the basis of court decisions taken
parallel to those relating to her husband.
In the course of the preliminary investigations, the
applicant was questioned by the Investigating Judge on 16 May,
4 and 23 October 1991.
On 29 October 1991 the St. Pölten Public Prosecutor's Office
(Staatsanwaltschaft) preferred the indictment against the
applicant and his wife charging them in particular with
professional fraud which had caused a damage of almost AS 126
million. The accused objected to the indictment.
On 26 November 1991 the St. Pölten Regional Court (Landes-
gericht), following a private hearing, dismissed the applicant's
request for release. Referring to the indictment and the result
of the investigations against them, the Regional Court considered
that there was a strong suspicion that the applicant and his wife
had committed fraud. The risk that the applicant would commit
further offences continued to exist. The length of their
detention on remand did not appear disproportionate to the
sentence which they had to expect, namely imprisonment up to ten
years.
On 10 December 1991 the applicant appealed against the
decision of 26 November 1991. On 23 December 1991 the Vienna
Senior Public Prosecutor's Office (Oberstaatsanwaltschaft)
briefly commented on the question of the accused's committal for
trial, and requested their continued detention on remand.
On 2 January 1992 the Vienna Court of Appeal, following
deliberations in camera in the absence of both the prosecution
authorities and the accused, committed the applicant and his wife
for trial. Furthermore, the Court of Appeal dismissed the
applicant's appeal against the decision of 26 November 1991. The
Court of Appeal, having regard to the indictment and the results
of the very detailed preliminary investigations, considered in
particular that there was a strong suspicion that the applicant
and his wife had defrauded various investment consultants and
investors as regards an investment model and the solvency of a
company, and caused damage of almost AS 126 million. There was
a risk that the applicant being apparently very talented in
defrauding other persons would commit further offences of the
same kind, if released. In this respect, the Court of Appeal also
noted that the applicant had previously been convicted of
negligent bankruptcy.
On 4 February 1992 the Investigating Judge forwarded the
criminal files to the Presiding Judge at the St. Pölten Regional
Court. Thereupon, the Presiding Judge and the Public Prosecutor's
Office requested the Vienna Court of Appeal further to prolong
the applicant's detention on remand.
On 17 February 1992 the Vienna Court of Appeal, sitting in
camera, granted the above request and ordered that the
applicant's detention on remand could last up to twenty-two
months. The Court of Appeal, having heard the Senior Public
Prosecutor, confirmed the strong suspicion of fraud against the
applicant. In this respect, the Court of Appeal referred in
particular to the indictment and its decision of 2 January 1992.
It noted that the investigations were particularly difficult and
complex, there were meanwhile twenty-nine files, and the
indictment comprised twenty-nine pages. Moreover, it was
envisaged to start the trial on 1 June 1992.
On 16 April 1992 the Presiding Judge at the competent
Chamber of the St. Pölten Regional Court decided that the trial
against the applicant and his wife should take place between 19
May and 6 June 1992.
On 11 June 1992 the St. Pölten Regional Court convicted the
applicant and his wife of grave fraud on numerous counts. The
applicant was sentenced to eight years' imprisonment. The
Regional Court found that they had defrauded sixty-six investors
who had placed funds with them. The damage thus caused amounted
to more than AS 37 million. As regards the charges of fraud on
four further counts, the applicants were acquitted. The written
version of the judgment was served upon the applicant on 16 July
1992.
On 27 October 1992 the Austrian Supreme Court (Oberster
Gerichtshof), upon the pleas of nullity (Nichtigkeitsbeschwerden)
lodged by the applicant and his wife, quashed the judgment of 11
June 1992, and sent the case back to the Regional Court. The
Supreme Court found that at the trial before the Regional Court
the contents of the files had not been fully read out.
On 25 November 1992 the Judges' Chamber at the Regional
Court dismissed the applicant's request to be released from
detention. The Vienna Court of Appeal dismissed his appeal on 29
December 1992.
On 9 February 1993 the Supreme Court dismissed the
applicant's complaint that the Vienna Court of Appeal's decision
of 29 December 1992 had violated his right to liberty. As regards
the alleged violation of Article 5 para. 3 of the Convention, the
Supreme Court found that, having regard to the enormous scope of
the case, the length of the proceedings so far did not appear
unreasonable. On the basis of a careful and critical examination
of the files, the Supreme Court reached the conclusion that the
courts involved in the case had not caused any considerable
delays of the proceedings or otherwise acted negligently. The
Supreme Court noted in particular that the full report of the
competent police authorities on the charges against the applicant
and his wife, contained in sixteen files, only reached the
Regional Court in May 1991. The charges of fraud involved seventy
victims of whom most lived abroad, and the investigations
concerned numerous banking accounts and booklets. Moreover, the
proceedings had partly also been conducted against the
applicant's wife and partly against seven further suspects. The
proceedings relating to the appeals lodged by the applicant and
his wife against their continued detention had not prolonged the
proceedings on the ground that the court of first instance had
continued to work on the basis of photocopies or to parts of the
files, prepared for its own use or for use by the Court of
Appeal. There had been no delays at the trial stage, in
particular, it took the Presiding Judge only about one month to
prepare the trial, the judgment was pronounced on 11 June 1992
and the written version of the judgment was already served on 16
July 1992.
Meanwhile, in the course of the main trial proceedings
before the St. Pölten Regional Court, the case had been assigned
to Judge R. on 4 December 1992. On 17 December 1992 the case had
been assigned to Judge W. on the ground that Judge R. had
previously acted as Investigating Judge. In March 1993 Judge W.,
having examined the files, informed the President of the St.
Pölten Regional Court that he had also been involved in the
preliminary investigations at some stage. On 1 April 1993 the
President decided that Judge W. as well as a further judge could
not participate in the trial against the applicant. The case was
assigned to Judge S. The applicant's motion to challenge Judge
S. for bias was dismissed on 11 May 1993, his motion regarding
a further judge was, however, successful. On 25 May 1993 the
dates for the hearings in the applicant's case were fixed between
22 June and 22 July 1993. Following the trial, still in July
1993, the St. Pölten Regional Court again convicted the applicant
of fraud and sentenced him to seven years' imprisonment. Upon the
applicant's appeal, the Vienna Court of Appeal reduced his
sentence to six years' imprisonment.
B. Relevant domestic law
Under S. 180 paras. 1 and 2 of the Code of Criminal
Procedure, a person may be held in detention on remand - where
there are serious grounds for suspecting him of having committed
a criminal offence - if there is a risk of his absconding, of
collusion or of repetition of the offences.
According to S. 193, detention may not last more than two
months if it is based only on the danger of collusion, or more
than six months if based on the other reasons.
The second-instance court may however, if the investigating
judge or the prosecuting authorities so request and if the
complexity or scope of the investigation makes it necessary,
extend the detention up to a maximum of three months in the case
of suspected collusion, and one year where the other grounds are
relied on, or even two if the sentence risked exceeds five years.
In exercising this power the appellate court sits in private
session in the absence of the detainee and his lawyer; it gives
the principal public prosecutor's office the opportunity to make
submissions.
Detention founded on a reason other than the risk of
collusion alone is subject to no time-limit as soon as the trial
has begun.
The accused may lodge an application for release at any time
(S. 194 para. 2). Under S. 194 and 195, such an application is
to be examined by the Judges' Chamber (Ratskammer) of the
Regional Court in a private hearing, in the presence of the
accused and his lawyer.
COMPLAINTS
1. The applicant complains under Article 5 para. 3 of the
Convention about the length of his detention on remand. He
submits in particular that the investigations against him could
have been concluded earlier, and that the trial could have been
fixed for February 1992.
2. The applicant complains under Article 5 para. 4 of the
Convention that, in the proceedings before the Vienna Court of
Appeal leading to its decision of 2 January 1992, he was not
heard personally. He also complains that the Vienna Court of
Appeal, prior to its decision of 17 February 1992, did not hear
him upon the request of the Presiding Judge and the Public
Prosecutor's Office further to prolong his detention on remand.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 May 1992 and registered
on 27 May 1992.
On 14 October 1992 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 17 March 1993, after two extensions of the time-limit,
the Government submitted their observations. The observations in
reply by the applicant were submitted after an extension of the
time limit on 23 June 1993. The applicant's representative
supplied some further information on the outcome of the criminal
proceedings on 1 February 1994.
THE LAW
1. The applicant complains under Article 5 para. 3 (Art. 5-3)
of the Convention about the length of his detention on remand.
Article 5 para. 3 (Art. 5-3), so far as relevant, provides
as follows:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) (Art. 5-1-c) of this Article
... shall be entitled to trial within a reasonable time or
to release pending trial."
The Government consider that the length of the applicant's
detention on remand was not unreasonable. They submit that the
criminal proceedings against the applicant were particularly
complex, and that there were no undue delays on the part of the
Austrian authorities. They refer in particular to the finding of
the Supreme Court in its decision of 9 February 1993.
The applicant submits in particular that the investigations
against him could have been concluded earlier. He points in
particular at the lengthy intervals between his successive
questioning by the Investigating Judge. He considers that the
trial could have been fixed for February 1992. His submissions
also relate to his detention following his conviction on 11 June
1992.
The Commission notes that the applicant was arrested on 24
August 1990. As regards the period preceding his first conviction
on 11 June 1992, the applicant's detention on remand within the
meaning of Article 5 para. 3 (Art. 5-3) of the Convention lasted
one year and nine and a half months (cf. Eur. Court H.R., B. v.
Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16,
paras. 36-38).
The Commission recalls that it is in the first place for the
national authorities to ensure that, in a given case, pre-trial
detention of an accused person does not exceed a reasonable time.
To this end, they must examine all the facts arguing for or
against the existence of a genuine requirement of public interest
justifying, with due regard to the principle of the presumption
of innocence, a departure from the rule of respect for individual
liberty and set them out in their decisions on the question of
release. It is essentially on the basis of the reasons given in
these decisions and of the true facts mentioned by the applicant
in his appeals, that the Convention organs are called upon to
review the reasonableness of the length of detention (cf. Eur.
Court H.R., Letellier judgment of 26 June 1991, Series A no. 207,
p. 18, para. 35; W. v. Switzerland judgment of 26 January 1993,
para. 30, to be published in Series A no. 254).
The persistence of reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for
the validity of the continued detention, but, after a certain
lapse of time, it no longer suffices; the Convention organs must
then establish whether the other grounds cited by the judicial
authorities continue to justify the deprivation of liberty, and
whether the domestic authorities displayed special diligence in
the conduct of the proceedings (cf. Eur. Court H.R., Letellier
judgment, loc. cit.; W. v. Switzerland judgment, loc. cit.).
The St. Pölten Regional Court and the Vienna Court of
Appeal, in their respective decisions relating to the applicant's
continued detention on remand, found that, on the basis of the
preliminary investigations and later also the indictment, there
was a reasonable suspicion that he had committed the offences in
question. Their finding as to the risk that the applicant would
commit further offences of the same kind was based on the
professional nature of the applicant's conduct in respect of the
offences he was charged with. The applicant's continued detention
was thus based on sufficient and relevant grounds.
The Commission further recalls that the right of the accused
in detention to have his case examined with particular expedition
must not hinder the efforts of the prosecution authorities to
carry out their tasks with proper care (cf. Eur. Court H.R.,
Tomasi judgment of 27 August 1992, Series A no. 241-A, p. 39,
para. 102; W. v. Switzerland judgment, loc. cit., para. 42).
The Commission notes that the preliminary investigations
started in August 1990, and the Public Prosecutor's Office
preferred the indictment in October 1991, the investigations were
thus completed within fourteen months.
In the ensuing proceedings, it took the Vienna Court of
Appeal two months to commit the applicant and his wife for trial
and, at the same time, decide upon his and his wife's continued
detention on remand. The trial started four and a half months
later, and they were convicted on 11 June 1992, i.e.
approximately six months and one week later.
The Vienna Court of Appeal, in its decision of 17 February
1992, as well as the Supreme Court, in its decision of 9 February
1993, carefully examined the complexity of the case and the
progress of the criminal proceedings against the applicant, and
did not find any significant delay caused by the authorities.
The Commission notes that the charges against the applicant
and his wife concerned aggravated fraud on seventy counts, the
judgment of 11 June 1992 related to fraud committed to the
disadvantage of sixty-six victims, mostly living abroad. The
documents relating to the case filled twenty-nine files when the
proceedings started before the Regional Court.
The Commission, having regard to the complexity of the
proceedings, finds that the period of about fourteen months for
completing the preliminary investigations does not appear
excessive. In particular, the fact that the applicant's
questioning upon the charges against him took place at different
stages of the investigations does not, in itself, disclose an
undue conduct of the proceedings. There is no indication that the
approach of the authorities to the investigations was otherwise
inefficient and unreasonable, and their conduct does not, on the
whole, disclose any failure to act with the necessary diligence.
Furthermore, there was no substantial delay in the proceedings
before the St. Pölten Regional Court leading to the conviction
of the applicant and his wife. The Commission also attaches
weight to the fact that the authorities took recourse to
photocopies or to parts of the files in order to pursue the main
proceedings against the applicant and his wife pending the
proceedings before the Court of Appeal regarding their detention
on remand.
In these circumstances, the Commission considers that the
period of the applicant's detention on remand prior to his
conviction by the St. Pölten Regional Court on 11 June 1992 did
not exceed a reasonable time within the meaning of Article 5
para. 3 (Art. 5-3) of the Convention.
The Commission further observes that, should the length of
the applicant's detention between the Supreme Court's judgment
of 27 October 1992, quashing the applicant's conviction of 11
June 1992, and his conviction in July 1993 in the second set of
proceedings be considered under Article 5 para. 3 (Art. 5-3) of
the Convention, this period of less than nine months does not
appear unreasonable, even bearing the length of his detention on
remand in the course of the first set of proceedings in mind. In
particular, as the first conviction had been quashed for a
procedural error, the proceedings had to be completely repeated.
At the beginning of the second set of proceedings, there were
problems as to the composition of the Regional Court. Moreover,
the applicant failed to point at any relevant delays on the part
of the Regional Court.
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 complains under Article 5 para. 4 (Art. 5-4)
of the Convention about the alleged unfairness of the proceedings
before the Vienna Court of Appeal relating to his continued
detention on remand.
Article 5 para. 4 (Art. 5-4), provides that "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, in the proceedings before the
Vienna Court of Appeal leading to its decision of 2 January 1992,
he was not heard personally.
The Commission notes that, in accordance with the relevant
provisions of the Austrian Code of Criminal Procedure, the
applicant could take proceedings before the Judges' Chamber at
the St. Pölten Regional Court to have the lawfulness of his
detention on remand reviewed. He availed himself of this right
several times, thus his requests for release were dismissed in
September 1990 and November 1991, his further appeals with the
Vienna Court of Appeal being unsuccessful.
The Commission recalls that Article 5 para. 4 (Art. 5-4)
does not compel the Contracting States to set up a second level
of jurisdiction for the examination of applications for release
from detention. Nevertheless, a State which institutes such a
system must in principle accord to the detainees the same
guarantees on appeal as at first instance. In particular, the
proceedings must ensure equal treatment and be truly adversarial
(cf. Eur. Court H.R., Toth judgment of 12 December 1991, Series
A no. 224, p. 23, para. 84).
The Commission notes that on 26 November 1991 the St. Pölten
Regional Court, following a private hearing in the presence of
the applicant, dismissed his request for release from detention
on remand. The applicant appealed on 10 December 1991, and the
Vienna Senior Public Prosecutor's Office, by submissions dated
23 December 1991, briefly commented on the question of the
accused's committal for trial and requested their continued
detention on remand. The Court of Appeal's decision to reject the
applicant's appeal was taken in camera on 2 January 1992, without
a representative of the prosecuting authorities being present.
In these circumstances, the Commission finds no appearance
of discrimination against the applicant in the appeal proceedings
which were decided upon written submissions of both the applicant
and the Senior Prosecutor's Office. The written request made by
the Senior Prosecutor's Office to continue the applicant's
detention on remand did not contain any relevant aspect which was
not covered by the applicant's preceding submissions upon appeal.
Furthermore, the applicant who had been heard personally before
the Regional Court, did not show to what extent a due
presentation of his appeal required his personal appearance
before the Court of Appeal.
In these circumstances, the Commission finds no indication
that the review of the applicant's continued detention on remand
did, on the whole, not comply with the requirements under Article
5 para. 4
(Art. 5-4) of the Convention.
b. As regards the applicant's further complaint that the Vienna
Court of Appeal, prior to its decision of 17 February 1992, did
not hear him upon the request of the Presiding Judge and the
Public Prosecutor's Office to prolong his detention on remand,
the Commission notes that this set of proceedings concerned the
extension of the maximum period of the applicant's detention on
remand.
The Commission recalls that, in these circumstances, the
appellate court does not itself decide upon the appropriateness
or the necessity of keeping the accused in prison or releasing
him, nor does it undertake a review of the "lawfulness of the
detention". It confines itself to setting out a framework within
which the investigating judge or the prosecuting authority is
free to take decisions. Article 5 para. 4 (Art. 5-4) does not,
therefore, apply to the proceedings in question (cf. Eur. Court
H.R., Toth judgment, loc. cit., pp. 23-24, paras. 86-87).
Thus, no issues arise under Article 5 para. 4 (Art. 5-4) in
this respect.
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy