PARTIAL
AS TO THE ADMISSIBILITY OF
Application No. 10802/84
by P. & P.
against Austria
The European Commission of Human Rights sitting in private
on 15 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
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 September 1983 by P. and P. against Austria and registered on 31
January 1984 under file No. 10802/84;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the Commission's partial decision of
13 May 1987;
Having regard to the Government's observations of 27 July 1987
and the applicants' observations in reply of 23 September 1987;
Having regard to the information submitted by the Government
on 16 December 1987 and the applicants' comments thereon of
3 February 1988;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizens born in 1945 and 1952
respectively. Both are represented by Mr. Reinhard Peters, a German
citizen residing in Munich, Federal Republic of Germany.
Certain complaints of the first applicant, concerning
proceedings in which he sought to protect his reputation against
allegations that he had instigated a murder, were rejected by the
Commission's partial decision of 13 May 1987. As regards the
remaining parts of the application, the facts agreed between the
parties may be summarised as follows:
Criminal proceedings were taken separately against both
applicants before the Regional Court (Landesgericht) of Klagenfurt.
The first applicant complains of the conduct of the criminal
proceedings against him and of his subsequent detention (see I below),
both applicants complain of certain restrictions imposed on them
during their detention on remand (see II and III below), and the
second applicant complains of the length of her detention on remand
(see IV below).
I. The criminal proceedings against the first applicant
On the basis of a warrant of arrest issued by the Regional
Court of Klagenfurt on 12 November 1982, the first applicant was
arrested in Klagenfurt on 20 November 1982. The warrant was based on
the suspicion of his having committed various criminal offences
(aggravated fraud, professional burglary, forgery and suppression of
documents, professional receiving of stolen goods, and illegal
possession of firearms) and it referred to a danger of absconding, of
collusion and of repetition under Section 175 para. 1, sub-paras. 2-4
of the Code of Criminal Procedure (Strafprozessordnung).
On 21 November 1982 the first applicant was brought before a
judge in accordance with Section 179 para. 1 of the Code of Criminal
Procedure, i.e. the judge on duty (Journalrichter) Dr. A. He informed
the first applicant of the reasons for the arrest. The first applicant
denied having committed the above criminal offences, except the
offence of illegal possession of firearms. The merits of the case
were not discussed.
Also on 21 November 1982 the judge competent for the first
applicant's case, Dr. K, ordered the transfer of the first applicant
to the Vienna Regional Court for Criminal Affairs (Landesgericht für
Strafsachen) which had issued a warrant of arrest against this
applicant on 20 November 1982, on the suspicion of his having
participated in an armed robbery in Vienna. The Klagenfurt
proceedings were joined to those of the Regional Court of Vienna.
However, on 20 January 1983 they were severed again and referred back
to the Regional Court of Klagenfurt. The first applicant was detained
on remand in the prison of the Vienna Regional Court from 22 November
1982 until 24 February 1983.
On 25 February 1983, the investigating judge of the Regional
Court of Klagenfurt who was now competent, Dr. St, ordered the opening
of a judicial investigation (Voruntersuchung) against the first
applicant, and his detention on remand in the prison of this Court.
The warrant of arrest based on Section 180, para. 1 and para. 2
sub-paras. 1 - 3 (danger of absconding, collusion and repetition) was
brought to his knowledge by judge Dr. St on the same day.
On 23 May 1983 the first applicant challenged judge Dr. St
on the ground of bias. However, on 26 May 1983 the President of
the Regional Court of Klagenfurt rejected this challenge as being
unsubstantiated.
On 10 June 1983 the investigating judge made a request under
Section 193 para. 2 of the Code of Criminal Procedure for the
prolongation of the first applicant's detention on remand beyond the
statutory time-limit of six months. On 16 June 1983 the Graz Court of
Appeal (Oberlandesgericht) acceded to the request, authorising
detention for a maximum period of nine months, having regard to the
volume and complexity of the judicial investigation. On 7 July 1983
the Review Chamber (Ratskammer) of the Regional Court of Klagenfurt
ordered the first applicant's continued detention, on the grounds of
danger of absconding and repetition. The first applicant lodged an
appeal against this decision.
On 19 July 1983 the competent public prosecutor submitted an
indictment charging the first applicant with the offences of receiving
stolen goods and illegal possession of firearms. He requested that
the remaining charges be severed as the investigation had not been
concluded in this respect (two of the charges concerned - suppression
of documents and one case of fraud - were subsequently dropped). The
first applicant raised an objection (Einspruch) against the indictment.
Pending the decision on this objection, the investigating
judge requested a further prolongation of the first applicant's
detention on remand. The Graz Court of Appeal decided on 18 August 1983
to authorise his detention on remand for a maximum period of ten months
and to reject his appeal against his continued detention and his
objection against the indictment.
The trial was to be opened on 14 September 1983 before the
Regional Court of Klagenfurt, sitting with two professional judges
(Drs. K and A) and two lay assessors (Schöffengericht). The fact that
the two professional judges had earlier acted as investigating judges
(Dr. K had been the competent investigating judge until 31 December 1982,
Dr. A had been the judge on duty at the applicant's first hearing on
21 November 1982), was raised with the first applicant by the
presiding judge, Dr. K, on 31 August and 1 September 1983. He
informed this applicant that the two judges were excluded from
participating in the trial by virtue of Section 68 para. 2 under
sanction of nullity as provided for in Section 281 para. 1 No. 1 of
the Code of Criminal Procedure. However, the first applicant declared
that he would not lodge a plea of nullity on this account; he further
observed that he did not consider it necessary to consult his defence
counsel on this question. The trial was held with the participation
of the above two professional judges on 14 September and 7 October 1983.
The defence did not raise any objection to the composition of
the Court. In particular, it did not invoke Section 68 para. 2 of the
Code of Criminal Procedure on the ground that the judges, Drs. K and A,
had previously acted as investigating judges.
Nor did the defence draw the Court's attention to the fact
that the first applicant had in the meantime instituted criminal
proceedings against the investigating judge, Dr. St, because of the
manner in which that judge had conducted the investigation and which,
according to the first applicant, involved an abuse of public powers.
In those proceedings against the investigating judge the applicant
had, on 23 September 1983, challenged all judges of the Regional Court
as being biased, but at the trial on 7 October 1983 the defence did
not refer to this circumstance and to the fact that the challenge,
which also concerned Drs. K and A, had not yet been determined. (A
decision on this matter was only taken on 10 November 1983 by the Graz
Court of Appeal. As all judges of the Regional Court of Klagenfurt,
being colleagues of Dr. St, had themselves declared to be biased in the
proceedings against the latter judge, the challenge was allowed and
the case referred to the Regional Court of Leoben.)
On 7 October 1983, the Regional Court of Klagenfurt convicted
the first applicant of qualified receiving of stolen goods under
Section 164 para. 3 of the Penal Code (Strafgesetzbuch) and of illegal
possession of firearms under Section 36 of the Firearms Act
(Waffengesetz). It sentenced him to three years' imprisonment. The
periods of the first applicant's detention on remand in Vienna and
Klagenfurt and of an earlier detention in Innsbruck (17 July -
10 September 1982) were deducted from the sentence. Two further
periods of detention, however, were not taken into account because the
relevant criminal proceedings were still pending before the Regional
Court of Salzburg.
The first applicant lodged a plea of nullity (Nichtigkeits-
beschwerde) against his conviction and appealed from the sentence
(Berufung). However, these remedies were rejected by the Supreme
Court on 29 February 1984.
The Supreme Court, dismissing the plea of nullity, held in
particular that the judgment was not attended with nullity because of
the participation of biased judges. Insofar as the first applicant had
referred to his undetermined challenge of all judges of the Regional
Court prior to the trial, the Supreme Court observed that he had not
requested a decision at the trial in which case the Regional Court
would have been obliged to take an interim decision. The fact that
the challenge of the whole Regional Court of Klagenfurt was
subsequently allowed in the criminal proceedings against the
investigating judge, Dr. St, did not justify the conclusion that the
judges of the Regional Court were also biased in the criminal
proceedings against the applicant. The fact that the two professional
judges, Drs. K and A, should, in principle, have been excluded from
the trial by virtue of Section 68 para. 2 of the Code of Criminal
Procedure because they had been involved in the investigation could
not be invoked by the applicant because he had prior to the trial
expressly renounced challenging these judges.
The Supreme Court further rejected the first applicant's
complaints concerning alleged inconsistencies of the judgment
regarding his income, his co-operation with Italian criminals, and
his knowledge that the goods received stemmed from a robbery. The
Supreme Court also confirmed the first applicant's sentence, rejecting
his appeal (Berufung).
The above criminal proceedings pending before the Regional
Court of Salzburg were discontinued on 24 May 1984 in view of the
first applicant's conviction in the above proceedings before the
Regional Court of Klagenfurt. The first applicant then applied to
also deduct the earlier periods of detention on remand (in Innsbruck
from 19 September 1979 to 23 May 1980, and in Klagenfurt from 28 March
to 26 May 1981) from his sentence. The Regional Court of Klagenfurt
rejected this request by a decision of 24 January 1985 finding that
the conditions of Section 38 of the Penal Code were not fulfilled as
the relevant detention periods were neither directly related to the
case at issue nor imposed subsequently to the acts of which the first
applicant was convicted. However, at the same time it applied to the
Graz Court of Appeal for a supplementary mitigation of the applicant's
penalty (nachträgliche Strafmilderung) under Section 410 of the Code
of Criminal Procedure. By a decision of 14 February 1985 the Court of
Appeal acceded to the request and reduced the first applicant's
sentence from three years' to two years' and nine months'
imprisonment.
II. Censorship of correspondence between the two applicants
During their detention on remand the applicants corresponded
with each other. However, at some time in the early summer of 1983
their correspondence was interfered with by the investigating judge
and this gave rise to a complaint of the second applicant to the
Review Chamber of the Regional Court. She complained, in particular,
of a measure of censorship whereby certain passages in a letter
addressed to the first applicant had been crossed out and made
illegible. She claimed that this form of censorship was unlawful as
Section 187 para. 2 of the Code of Criminal Procedure provided only
for the stopping of certain letters, i.e. letters likely to endanger
the aim of the detention, or letters suspected of involving a criminal
offence except an offence liable to prosecution only at the request of
the injured person. The relevant passages in the letter had been
censored because they allegedly contained critical and insulting
remarks on prison officers, but in the applicant's view they neither
endangered the aim of her detention nor did they constitute a public
prosecution offence.
The Review Chamber, after having heard the prosecution and
having obtained a report of the investigating judge, rejected the
second applicant's complaint on 26 July 1983. It observed that the
censorship had been limited to one letter. The crossing out of certain
passages in this letter was a less severe measure than its stopping to
which the investigating judge was entitled by virtue of Section 187
para. 2 of the Code of Criminal Procedure. This measure was therefore
implied in the investigating judge's powers and did not infringe the
applicant's rights. The censorship had been justified as the passages
in question, being described by the investigating judge in her report
on the incident as "jokes of an insulting nature against prison
officers", had constituted the offence of defamation of officials on
duty (Section 111 para. 1 in conjunction with Section 117 para. 2 of
the Penal Code), an offence which could be taken as the basis for a
measure under Section 187 para. 2 of the Code of Criminal Procedure.
Following the communication of the present application to the
respondent Government, the Attorney General's office (Generalprokuratur)
lodged a plea of nullity for safeguarding the law (Nichtigkeits-
beschwerde zur Wahrung des Gesetzes) in respect of the above decision
of the Review Chamber of the Regional Court of Klagenfurt. It was
claimed that the decision was unlawful because the applicant's remarks
could not possibly have constituted an offence against the honour of
prison officers "on duty" ("während der Ausübung seines Amtes oder
Dienstes"), i.e. a public prosecution offence to be prosecuted with
the consent of the officials concerned (Section 117 para. 2 of the
Code of Criminal Procedure), because such an offence could only be
committed "from person to person" and not in a letter. If there was
an offence against the honour of prison officers, it was liable to
prosecution only at the request of the injured persons and thus did
not justify a measure of censorship under Section 187 para. 2 of the
Code of Criminal Procedure. Unlawfulness of the measure was further
claimed on the ground that the latter provision merely authorised the
stopping of a letter, but not the crossing out of certain passages
therein.
On 20 October 1987 the Supreme Court, after having held a
public hearing in the presence of a representative of the Attorney
General's office, but in the absence of the second applicant, rejected
the argument that there was no public prosecution offence, but found a
violation of the law as to the form of censorship. Assuming that the
crossed-out passages actually contained "jokes of an insulting nature
against prison officers" as found by the investigating judge, it was
justified to suspect the second applicant of an offence, namely the
offence of insult (Beleidigung) under Section 115 of the Penal Code
(rather than defamation under Section 111). If committed against an
official on duty this offence was to be prosecuted ex officio (with
the consent of the official in question) under Section 117 para. 2 of
the Penal Code. In the present case the possible offence would have
been committed against prison officers "on duty" because the offence
would have been completed by handing the letter to a prison officer
for the purpose of submitting it to the investigating judge and this
forwarding procedure would necessarily have created the possibility
that the insulting contents of the letter became known to several
prison or court officers on duty. This implied that Section 117
para. 2 of the Penal Code was applicable and the measure therefore
was covered by Section 187 para. 2 of the Code of Criminal Procedure.
However, this provision only authorised the investigating judge to
stop a letter, but not to cross out passages. In this latter respect
the investigating judge and the Review Chamber had adopted an unlawful
approach contrary to the ratio legis. The investigating judge had not
taken a "less severe measure" implied in her powers under Section 187
para. 2, but a different measure which interfered with the interests
of the prosecution authorities and of the officials concerned to have
criminal proceedings instituted against the second applicant on
account of her remarks in the letter. It was therefore sufficient to
state that the law had been violated. The second applicant was not
aggrieved and therefore could not complain of the rejection of her
appeal by the Review Chamber.
III. Refusal of visits in prison to the two applicants
During their detention on remand the applicants received
regular visits from Mr. Peters who represented them in certain legal
proceedings.
In the summer of 1983 a visit by Mr. Peters was refused on the
ground that on an earlier occasion he had handed cigarettes to them.
Both applicants complained of this measure, but in separate decisions
of 7 and 26 July 1983 respectively, the Review Chamber rejected their
complaints.
It held that the refusal of the visit was justified under
Section 94 para. 3 of the Execution of Sentences Act (Strafvollzugs-
gesetz) applicable to remand prisoners by virtue of Section 183
para. 1 of the Code of Criminal Procedure. The handing over of
objects to prisoners was not allowed and it could not be excluded that
apart from the cigarettes Mr. Peters might have smuggled in other
objects likely to endanger the security of the prison.
IV. The detention on remand of the second applicant
On 26 November 1982, the second applicant was remanded in custody
by the Regional Court of Klagenfurt on a suspicion of aggravated fraud,
attempted burglary and theft, and receiving stolen goods. The warrant
of arrest was based on a danger of absconding, of collusion and of
repetition of a crime. On 3 February 1983 the Review Chamber ordered
the second applicant's continued detention on the grounds of danger of
absconding and repetition.
On 6 June 1983, the Graz Court of Appeal acceded to a request
by the investigating judge to prolong the detention beyond the statutory
six months' time-limit, having regard to the complexity of the
investigation. It authorised the second applicant's detention for a
maximum period of one year.
The second applicant subsequently lodged a complaint with the
Review Chamber of the Regional Court of Klagenfurt concerning the
investigating judge's request to prolong her detention. The Review
Chamber decided on 26 July 1983 that the investigating judge had acted
in accordance with Section 193 para. 2 of the Code of Criminal
Procedure.
On 16 June 1983 the second applicant made certain statements
in her case to the Regional Court. This led to a request by the
public prosecutor to hear this applicant and two witnesses concerning
the charge of fraud. As a result of these interrogations the
prosecution did not maintain the earlier charges. On 26 July 1983
it requested the second applicant's conviction on a charge of criminal
bankruptcy (fahrlässige Krida). As regards certain other offences
(burglary, receiving of stolen goods) the prosecution discontinued
the proceedings under Section 109 para. 1 of the Code of Criminal
Procedure.
On 9 August 1983, the Regional Court of Klagenfurt convicted
the second applicant of criminal bankruptcy and sentenced her to a
prison term of eight and a half months, which was considered as served
by her detention on remand. The second applicant was accordingly
released. She had also made a separate request for release which the
prosecution did not oppose.
Upon the second applicant's appeal (Berufung) the Graz Court
of Appeal quashed the above judgment on 16 February 1984 and referred
the case back to the Regional Court with a view to holding a new
trial. In proceedings in which the second applicant did not appear,
the Regional Court again convicted her on 19 April 1985. It now
imposed a prison sentence of eight months, which was considered as
served by her detention on remand.
COMPLAINTS
1. The first applicant complains that the criminal proceedings
against him in Klagenfurt were not conducted by an impartial court and
therefore infringed Article 6 para. 1 of the Convention. He observes
that he had challenged all judges of the Regional Court prior to the
trial which nevertheless took place before the challenge was decided
upon. Moreover, the professional judges sitting at the trial had been
involved in the investigation and he had not validly renounced a trial
by an impartial tribunal.
The first applicant also alleges that the trial was unfair
insofar as it was based on an investigation by a judge who
subsequently declared himself to be biased. He submits that the
acts of the investigating judge should have been considered as void.
The Regional Court further acted unfairly and violated the presumption
of innocence in that it drew certain conclusions from unproven
assumptions regarding in particular the sources of the applicant's
income, his contacts with Italian criminals, and finally his knowledge
of the origin of the goods received. Thus his conviction for
qualified receiving of stolen goods lacked a legal basis. The
judgment contained no statements regarding the form of his guilt and
the professional character of his actions. In this respect he invokes
Article 7 of the Convention.
The first applicant further complains that certain detention
periods were not counted as part of his sentence. He notes that the
sentence was subsequently reduced by three months in view of the
detention periods in question, but submits that these periods had in
fact been much longer and that Section 38 of the Penal Code which
requires that all previous detention periods should be counted towards
the sentence was thus violated. For this reason he considers his
detention as contrary to Article 5 of the Convention.
2. Both applicants complain of the restrictive measures imposed
on them during their detention on remand. They claim that the
censorship of their correspondence infringed Article 8 of the
Convention both as regards the object pursued and the method applied.
The law allows censorship only in respect of a letter which
constitutes a public prosecution offence, but not merely a private
prosecution offence such as insulting an official. The law
furthermore only allows the stopping of letters, but not the deletion
of passages. This made it impossible to examine the reasons for the
censorship, and therefore the applicants were allegedly deprived of an
effective remedy contrary to Article 13 of the Convention.
The applicants further complain that the refusal of a visit by
Mr. Peters was contrary to Article 5 of the Convention because their
rights as remand prisoners were restricted beyond the level allowed by
Austrian law. The aim of the measure could also have been achieved by
supervision of the visit.
3. The second applicant claims that her detention infringed
Article 5 of the Convention insofar as it was prolonged beyond the
statutory time-limit of six months. She submits that the
investigations concerning the original charges were completed by the
time of the prolongation; in any event these charges were dropped
shortly afterwards and replaced by another charge which had nothing
to do with the initial case. The second applicant alleges that the
detention was used to exercise pressure on her and on the first
applicant; this is shown by the fact that she was eventually sentenced
to a prison term of the same length as the period which she had
already spent in detention on remand.
PROCEEDINGS
The application was introduced on 23 September 1983 and
registered on 31 January 1984.
On 13 May 1987 the Commission rejected certain complaints of
the first applicant by a partial decision. As regards the applicants'
remaining complaints, the Commission decided to give notice of the
application to the respondent Government and to invite them, in
accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to
submit observations in writing on the admissibility and merits, in
particular concerning the first applicant's complaint that two
professional judges had taken part in his trial who previously had
acted as investigating judges; the second applicant's complaint
relating to the length of her detention on remand; and the complaint
of both applicants relating to the censorship of their correspondence.
The Government submitted their observations on 27 July 1987.
The applicants submitted observations in reply on 23 September 1987.
On 16 December 1987 the Government submitted further
information concerning the Supreme Court's decision of 20 October 1987
on the Attorney General's plea of nullity for safeguarding the law.
On 3 February 1988 the applicant submitted comments on this decision.
&_SUBMISSIONS OF THE PARTIES&S
A. The Government
1. Impartial tribunal
In the Government's view the first applicant's case cannot be
compared with the De Cubber and Ben Yaacoub cases because the judges
who had earlier acted as investigating judges had only exercised very
limited functions in this capacity.
The first applicant's trial was presided over by the judge Dr. K,
the assisting professional judge was Dr. A. Dr. K had been the first
applicant's officially competent investigating judge between
20 November and 31 December 1982. However, during this time the
first applicant was remanded in custody at the Vienna Regional Court
and therefore Dr. K carried out no investigation. He had only ordered
the arrest of the first applicant and the initiation of a preliminary
investigation against him to be conducted separately from the
proceedings against the second applicant. He was not the investigating
judge who imposed the pre-trial detention in Klagenfurt, which was
done by his successor, Dr. St, in February 1983. The assisting
judge, Dr. A, had only interrogated the first applicant after his
arrest and had ordered that he be remanded in custody. The
interrogation included no questions on the merits.
The first applicant himself obviously had the impression that
the two professional judges were impartial. Dr. K expressly called
it to his attention that he had been the investigating judge in the
proceedings until 31 December 1982 and that the assisting judge, Dr.
A, had conducted the compulsory interrogation. After having been
instructed that these conditions would justify a plea of nullity, the
first applicant declared that he accepted the participation of these
two judges in the trial and renounced making a plea of nullity on this
issue. The relevant records were signed personally by this applicant.
The exclusion of the judges according to Section 68 para. 2
of the Code of Criminal Procedure was raised by the first applicant
neither at the trial nor in his plea of nullity, although he was fully
informed of the facts. Section 281 para. 1 sub-para. 1 of the Code of
Criminal Procedure prescribes that the participation at the trial of
an investigating judge excluded under Section 68 para. 2 must be
objected to as soon as one is informed about that fact. The first
applicant did not challenge the judges since he had accepted their
participation and did not question their impartiality.
It is true that in different proceedings instituted by him
against the investigating judge, Dr. St, the first applicant had
challenged all judges of the Regional Court of Klagenfurt on the
ground of bias. This challenge could only apply to the proceedings
against Dr. St because the other judges of the Regional Court of
Klagenfurt were his colleagues. The same danger of bias could not
exist in the first applicant's own case. At his trial, neither the
first applicant nor his lawyer referred to the challenge of all judges
of the Regional Court in the other case. Because it concerned a
different case and no reference was made to it, the Court could not
deal with this challenge. Its judgment would have been attended with
nullity under Section 281 para. 1 sub-para. 4 of the Code of Criminal
Procedure only if the first applicant had requested a decision on the
point, and if no such decision had been taken.
The first applicant thus renounced pleading nullity under
Section 281 para. 1 sub-para. 1 of the Code of Criminal Procedure
of his own accord and after having been informed of the matter by
the judge. He could not claim nullity under Section 281 para. 1
sub-para. 4 due to the fact that he had failed to raise the challenge
during the trial, on which the Court would have had to take a
decision. Because of these omissions, the first applicant has not
exhausted the domestic remedies in this respect.
It is possible to renounce a claim for exclusion of the judges
according to Section 68 para. 2 of the Code of Criminal Procedure.
According to the consistent practice of the Supreme Court, Section 281
para. 1 of the Code of Criminal Procedure presupposes that the ground
of nullity based on the participation of excluded judges is asserted
either at the beginning of the trial or as soon as the defendant is
informed of it. The legislator presumes that if the defendant does
not assert a claim immediately, he shows that he renounces it. By
consenting to the participation of these judges at the trial after
having been informed of the situation by a judge, the first applicant
acknowledged that he would be judged by an impartial tribunal. He
did not renounce the guarantee of an impartial tribunal as such.
2. Censorship of correspondence
The letter presented to the investigating judge to be censored
contained sarcastic and insulting remarks about prison officers,
amounting to the offence of defamation under Section 111 para. 1 of
the Penal Code. The judge therefore considered herself justified under
Section 187 para. 2 of the Code of Criminal Procedure to stop the
letter. However, she merely crossed out the objectionable passages and
passed on the letter to the addressee.
Prior to the Supreme Court decision of 20 October 1987 (see p. 7
above) the Government submitted that the offence allegedly committed by
the second applicant seems to have been a private prosecution offence,
making the measure of censorship carried out by the investigating
judge unlawful. In this respect the Government relied essentially on
the first argument advanced by the Attorney General's office in the
plea of nullity for safeguarding the law (see p. 6 above).
The Government subsequently informed the Commission of the
Supreme Court's above decision which had found a violation of the law
only in respect of the second argument in the plea of nullity, namely
that the crossing out of passages instead of stopping the letter was
unlawful.
Irrespective of the violation of the domestic law, the
Government consider that there has been no violation of Article 8
of the Convention. The measure complained of did not consist in
the stopping of the letter as in all other cases relative to an
infringement of correspondence that have been dealt with by the
Convention organs (cf. Eur. Court H.R., Silver and others judgment of
5 March 1983, Series A no. 61). The right of the second applicant to
keep up correspondence was not prevented by this act. The crossing out
and making illegible of a passage that is insulting towards a third
person within the framework of a basically admissible inspection of
correspondence is, in the Government's view, no violation of the right
to respect for one's correspondence.
Nor did this measure of censorship infringe the right of the
second applicant to an effective remedy before an Austrian authority.
Under Section 113 of the Code of Criminal Procedure this applicant
could complain to the Review Chamber of the Regional Court, which she
did. The Review Chamber decided on the matter after having obtained
observations of the investigating judge on the issue and the contents of
the letter. Even if the legality of the measure of censorship caused
difficulty under Section 187 para. 2 of the Code of Criminal Procedure,
it must be assumed that, based on the statement by the investigating
judge, a review of the substance of the measure of censorship was
possible. Furthermore, the second applicant could oppose the
statement of the investigating judge on the contents of the passages
concerned. The Review Chamber was required to consider both
statements when weighing the evidence. Therefore the fact that the
complaint was rejected by the Review Chamber as being unfounded does
not mean that the second applicant had no effective remedy at her
disposal.
The Government conclude that the above complaints are
manifestly ill-founded within the meaning of Article 27 para. 2
of the Convention.
3. Length of detention
The most important charges against the second applicant were
that she had acquired furniture, a luxury car and a fur coat without
payment. These charges were first qualified by the public prosecutor
as aggravated fraud because it was assumed that the second applicant
had never intended to pay the price.
The decision to prolong her detention on remand beyond the
statutory six months' time-limit under Section 193 para. 3 of the Code
of Criminal Procedure was based on the fact that the reasons for her
arrest were still valid and that the investigation was not yet
completed. The complexity of the investigation arose from the
collaboration in the offences between the first and the second
applicants, and the fact that both refused to give any relevant
information.
The second applicant's allegation that the investigation had
been concluded at the beginning of May 1983 is incorrect. On the
contrary, on 19 May 1983 the public prosecutor requested further
investigations. Such investigations also became necessary because of
the second applicant's letter to the Regional Court of 16 June 1983.
The second applicant herself and two witnesses were examined and as a
result of these examinations the legal assessment of this applicant's
offences was altered.
On 26 July 1983 the Public Prosecutor charged the second
applicant with the offence of criminal bankruptcy under Section 159
para. 1 of the Penal Code. The original charge was not dropped and
replaced by an altogether different charge. Rather the very same
facts were reevaluated from a different legal point of view because
of the results of the preliminary investigation. Fraud and criminal
bankruptcy differ from each other as far as the element of mens rea
is concerned. In the former the offender has the intention to commit
fraud, whereas in the latter the offender negligently inflicts damage
upon his creditors.
It was only in relation to certain secondary facts (e.g.
concerning burglary and qualified receiving of stolen goods) that the
public prosecutor discontinued the proceedings under Section 109 para. 1
of the Code of Criminal Procedure.
The second applicant's detention on remand lasted about eight
and a half months. A prison sentence of up to two years is provided
for an offence under Section 159 of the Penal Code. The second
applicant had already two previous convictions, one being similar to
the present case. The entire detention served on remand was counted
towards the sentence imposed on 19 April 1985 by the Regional Court of
Klagenfurt.
In these circumstances the length of detention was justified
within the meaning of Article 5 para. 3 of the Convention. The
investigations were complex but were carried out swiftly by the
judicial authorities. The second applicant filed a great number
of submissions and complaints either personally or through her lawyer,
partly querulous in nature, each of which had to be passed on to the
competent authorities to be decided upon, and for some of which the
observations of the competent judges had to be procured. This
naturally caused some delay for which this applicant was herself
responsible.
B. The Applicants
1. Impartial tribunal
The first applicant contests that the functions of the
investigating judges, who later participated in his trial, were of a
limited nature. The compulsory interrogation under Section 179 of the
Code of Criminal Procedure corresponds in his view to the requirements
of Article 5 paras. 2 and 3 of the Convention. The investigating
judge must immediately decide whether the arrested person should be
released or whether detention on remand should be imposed on him.
This necessarily presupposes that the judge deals with the substance
of the matter. The Government's contention that in the present case
the investigating judge, Dr. A, conducted a purely formal hearing at
which he informed the first applicant of the reasons for his arrest
without discussing the merits of the case is either incorrect or it
implies that this applicant's detention was unlawful as he had not
been heard on the substance.
As regards the decision of the judge, Dr. K, to order the
first applicant's detention on remand, reference is made to Section
180 para. 1 of the Code of Criminal Procedure, according to which the
investigating judge may take such a decision only if the accused has
already been heard on the merits. Again the law was violated and
therefore this applicant's detention was not in conformity with
Article 5 of the Convention.
In order to take the most important decisions in the
investigation, those concerning the first applicant's provisional
detention and his detention on remand, both judges were required
to deal extensively with the matter.
Apart from that, the presiding judge, Dr. K, had also been the
judge in the parallel media case which was concluded before the trial
in the present case and in which the file in the present case was part
of the evidence. Therefore this judge had a profound knowledge of the
present case. This case cannot be distinguished from the De Cubber
case.
It is true that the challenge of the judges on the ground of
bias in the case against the investigating judge, Dr. St, concerned a
different case. However, in substance, that case concerned the manner
of conducting the pretrial investigation and the taking of evidence in
the first applicant's own case. These acts of the investigating judge
were ultimately at the basis of the first applicant's conviction.
Therefore the judges dealing with the first applicant's case must also
be considered as biased in this case. They should themselves have had
doubts concerning their impartiality and should have declared to be
biased under Section 72 para. 2 of the Code of Criminal Procedure.
That the judges had stated to be biased in the other case was not
known at the time to either the applicant or his defence counsel. The
Supreme Court's judgment is contradictory on this point in that it was
based on the formal argument that the challenge had been made in a
different case and that the exclusion of the judges, because of their
having acted as investigating judges, could not be raised because of
the applicant's renunciation to a remedy in this respect.
It is true that the first applicant was informed prior to
the trial of the grounds for the exclusion of the two judges and that
he subsequently failed to use remedies. However, he was unlawfully
led into error concerning his rights and unlawfully incited to
renounce making a plea of nullity.
In view of the fact that the two judges were excluded, Dr. K,
who was one of these judges, was required by Section 71 of the Code of
Criminal Procedure to refrain, under sanction of nullity, from all
judicial acts in the case. Therefore it was unlawful that he himself
informed the first applicant of his exclusion and had this applicant's
renunciation of a remedy recorded. When confronted with the excluded
judge the first applicant could hardly contradict him. If at all,
the information about the participation of excluded judges should have
been given and the declaration by the first applicant that he
renounced a remedy in this respect should have been obtained by
another judge. Section 70 of the Code of Criminal Procedure requires
an excluded judge to report this fact immediately to the court's
president. The first applicant concludes that his renunciation was
null and void.
Moreover, the decision to hold the trial notwithstanding the
participation of excluded judges and to obtain the first applicant's
consent thereto should have been served on the first applicant's
defence counsel. However, his defence counsel was not informed and
the applicant did not realise that the defence could still challenge
the excluded judges at the trial.
It is true that procedural guarantees can be renounced and
that a person who does not raise a ground of nullity may be prevented
from lodging an application under the Convention. However, this does
not mean that the Convention has been complied with. In any event it
is inadmissible to renounce invoking the Convention in general and
prior to the trial.
In the present case the procedure which led to the first
applicant's renunciation was unlawful and this applicant was unable to
realise that at the trial he could still challenge the judges.
Therefore he was not required to take the relevant remedies. In any
event the Supreme Court confirmed that the two judges should have been
excluded by virtue of Section 68 para. 2 of the Code of Criminal
Procedure. Even if the Court was impartial, it was not a court
"established by law".
2. Censorship of correspondence
The applicants refer to the Government's admission that the
censorship was unlawful. This shows that there has been a breach of
Article 8 of the Convention.
They allege a further breach of Article 8 in that information
about the contents of the applicants' letters was passed on to the
investigating judge by the prison governor. This became known to the
applicants through the Government's observations. The applicants
observe that under the provisions of the Code of Criminal Procedure
the censorship of the mail of remand prisoners is exclusively
entrusted to the investigating judge, while in the present case a
censorship has apparently been carried out by prison officers. This
interferes with the confidentiality of correspondence.
The Government's argument that the crossing out of a passage
in a letter does not interfere with the right to respect for
correspondence, amounts to saying that there is no interference
with correspondence if the letter is burnt and the ashes are delivered
to the addressee.
Finally, as regards the question of an effective remedy, the
applicants observe that it was the task of the Review Chamber to
control the measures taken by the investigating judge. In doing so,
it had itself to assess the facts rather than ratify the assessment by
the investigating judge. Censorship was only admissible if there was
a criminal offence. Therefore the Review Chamber was called upon to
determine whether a criminal offence had been committed. This was not
possible without examining the relevant facts. However, the actual
contents of the objectionable passages of the letter could no longer
be ascertained; in particular they were not described in the statement
of the investigating judge who merely said that they were jokes which
she considered as insulting. The second applicant was not heard on the
matter and could not be heard as the applicable procedural rules
provide for a decision to be taken in a non-public procedure after
having heard the investigating judge (cf. Section 113 of the Code of
Criminal Procedure). The applicants therefore did not have an
effective remedy at their disposal.
In the light of the Supreme Court's judgment on the Attorney
General's plea of nullity for safeguarding the law, the applicants
submit the following:
The Government are contradicted by the Supreme Court's
judgment which must now be considered as the relevant authority on the
applicable Austrian law. It cannot be maintained that the censorship
was illegal because it was exercised in relation to a private
prosecution offence, the Supreme Court having held that defamation
of an official gives rise to a public prosecution and thus is an
offence on which a measure of censorship can be based.
However, more important are the grounds for the Supreme
Court's conclusion that the conditions of this offence had been met.
It was presupposed that the prison officers had "necessarily" acquired
knowledge of the contents of the letter because it was required that
the mail be handed to them unsealed. This is in line with the actual
practice, which is unlawful. Sections 187 and 188 of the Code of
Criminal Procedure recognise the unlimited right of remand prisoners
to correspond unless the correspondence is incompatible with the aims
of the detention on remand or involves public prosecution offences.
The control of correspondence is the exclusive task of the
investigating judge. This differs from the regulations applicable
to convicted prisoners which permit the control of correspondence by
the prison staff. It therefore was unlawful in the present case that
prison officers acquired knowledge of the contents of the second
applicant's letter, in particular as the investigating judge was bound
by the rule of confidentiality. The requirement of "publicity", which
is a constituent element of the offence, was thus not fulfilled. The
applicants accordingly maintain that, despite the Supreme Court's
judgment, there was no public prosecution offence.
As regards the form of censorship, the Supreme Court confirmed
the violation of the law because the aim of securing evidence was
disregarded. A clarification of the question whether a criminal
offence had been committed by the second applicant's remarks was also
in the interest of the applicants who could only in this way have
obtained an objective decision on the justification of the censorship.
The form of censorship therefore interfered with the applicants'
possibility to make use of an effective remedy. Thus, it is not
correct to say that the investigating judge took a measure which she
was not authorised to take, but which did not interfere with the
second applicant's rights.
The judgment of the Supreme Court therefore did not provide
redress for the applicants' complaint and therefore they can still
claim to be victims in this respect.
3. Length of detention on remand
The second applicant claims that she was detained in order
to compel her to give evidence against the first applicant in a
matter which had nothing to do with her own case, namely the suspicion
raised against the first applicant that he had committed a murder.
The relevant proceedings against the first applicant were later
discontinued. If the second applicant had been prepared to give
evidence against the first applicant in that case, she would have been
released immediately. The investigation in her own case was neither
complex nor difficult.
The Government have not indicated which acts of investigation
were carried out during the relevant period nor have they shown why
investigations taking such a long time were necessary. No
investigation took place for a long time concerning the charges
underlying the second applicant's detention. The extensive
investigations which did take place concerned other matters.
The second applicant's statement that the investigation was
concluded in May 1983 is based on information obtained from the
investigating judge. The second applicant did not contribute to the
length of the proceedings by her letter to the investigating judge
of 16 June 1983. The relevant facts had not been sufficiently
investigated by that time. Her representative made private
investigations after having consulted the file which led to the
submissions in the above letter. As a consequence the charges
had to be modified. If the authorities had conducted appropriate
investigations, they could have come to the same conclusion earlier.
The investigations against the second applicant started in January
1982, i.e. long before this applicant was arrested. The arguments
submitted in her defence remained the same throughout. The indictment
was based on facts which were known prior to her arrest.
The only reason mentioned in the decision to prolong her
detention was the possible involvement of the first applicant in the
offences with which the second applicant was charged. This means that
the second applicant was detained on grounds concerning another
person. Moreover, the Court decided to exclude the relevant facts
from the proceedings against the second applicant. Thereafter these
facts were no longer in issue in the case against the second
applicant.
In Austria it is unusual to impose detention on remand in a
case of criminal bankruptcy. This offence carries a maximum penalty
of two years' imprisonment, but more often the courts impose fines on
a conditional basis. The second applicant's conviction was the
consequence of her failure to appear at the second trial. The first
judgment had been quashed by the Graz Court of Appeal and it was
doubtful whether the conditions of the offence of criminal bankruptcy
were actually met.
The above considerations are relevant for judging the
justification of the second applicant's detention. It was based on
a charge of fraud and the sentence which could be imposed for this
offence. The danger of absconding was related to this charge. The
alleged danger of repetition did not really exist.
The investigations were not conducted speedily; they were not
delayed by the second applicant. Her submissions related to the
circumstances of her detention and in this respect Section 115 of the
Code of Criminal Procedure was disregarded which provides that the
authorities shall make the necessary arrangements (e.g. by copying
the files) in order to prevent that remedies delay the proceedings.
THE LAW
a) As to the complaints of the first applicant concerning
the criminal proceedings against him and his subsequent
detention
1. The first applicant complains of the criminal proceedings
against him before the Regional Court of Klagenfurt, alleging
violations of Article 6 (Art. 6) of the Convention on various grounds,
including, in particular, partiality of the Court because of the
participation of excluded and biased judges. The applicant further
alleges a violation of Article 7 (Art. 7) of the Convention in these
proceedings and a violation of Article 5 (Art. 5) of the Convention as
regards his subsequent detention as a convicted prisoner.
After having obtained the parties' observations in
writing on the complaint relating to the impartiality of the
Court, the Commmission considers that further clarifications are
necessary which should be obtained from the parties at an oral
hearing. The first applicant's other complaints, including his
complaints under Article 5 (Art. 5), are in the Commission's opinion
so closely linked to the issue of the impartiality of the Court that
they cannot be severed. The Commission therefore reserves its
decision concerning these complaints of the first applicant.
b) As to the complaints of both applicants concerning
the censorship of a letter
2. Both applicants complain of the censorship of a letter which
the second applicant addressed to the first applicant during the
period when both were remand prisoners in the prison of the Regional
Court of Klagenfurt. The applicants have invoked Articles 8 and 13
(Art. 8, 13) of the Convention in this respect.
After having obtained the parties' observations in writing on
these complaints, the Commission considers that, also concerning this
part of the application, further clarifications are necessary which
should be obtained from the parties at an oral hearing. The Commission
therefore reserves its decision concerning these complaints of the
applicants.
c) As to the complaints of both applicants concerning the
refusal of a visit in prison
3. Both applicants complain of the refusal of a visit to them by
Mr. Peters and invoke Article 5 (Art. 5) of the Convention which
guarantees the right to liberty and security of person. However, this
provision is not applicable to prison visits. An interference with
such visits may raise issues under the Convention only if it affects
other Convention rights such as the right to respect for a person's
private or family life under Article 8 (Art. 8) of the Convention or
the right to effective legal assistance insofar as this is included in
Article 6 (Art. 6) of the Convention. The applicants have not claimed
under Article 6 (Art. 6) that the refusal of Mr. Peters' visit had
any impact on the proceedings in which he represented the applicants.
As he was no relative of the applicants, the concept of family life
within the meaning of Article 8 (Art. 8) did not apply and the only
possible basis for an issue under the Convention could therefore be an
interference with the applicants' private life. However, it may remain
open whether or not the applicants' relations with Mr. Peters were of
such a nature that they could be considered as forming part of their
"private life" within the meaning of Article 8 para. 1 (Art. 8-1) of
the Convention. The interference with the visiting right was in any
event justified under Article 8 para. 2 (Art. 8-2) as it appears that
Mr. Peters was suspected of having, on an earlier occasion, tried to
smuggle objects into the prison which might have endangered the
prison's security. The refusal of the visit in these circumstances
was both lawful and necessary in a democratic society to prevent
disorder in the prison. The applicants' above complaint is therefore
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
d) As to the complaint of the second applicant concerning
the length of her detention on remand
6. The second applicant complains of the length of her detention
on remand and, in particular, of the fact that it was extended beyond
the statutory time-limit of six months. Article 5 para. 3 (Art. 5-3)
of the Convention provides that everyone detained in accordance with
para. 1 (c) (Art. 5-1-c) of the same Article shall, inter alia, be
entitled to trial within a reasonable time or to release pending
trial.
It is true that the second applicant's detention was extended
in accordance with the applicable legal provisions beyond the normal
time-limit of six months in view of the complexity of the investigation
and her first trial was held nearly nine months after her arrest.
However, the Commission does not find that the total length of her
detention was unreasonable in the circumstances. The second applicant
admits that extensive investigations were conducted during the first
period of her detention, although it appears that they did not
concentrate on the facts for which she was ultimately convicted.
Nevertheless, these investigations apparently related to charges which
were included in the original warrant of arrest. Investigations
concerning the main charge of fraud were still pending when the Court
of Appeal authorised the prolongation of her detention on remand.
They were concluded within six weeks after that date and her detention
was shorter than the maximum period authorised. The fact that the
original charges were not in the end maintained but replaced by a
different charge of criminal bankruptcy is not relevant in this
context. The new charge related to the same facts. It follows that
the second applicant's above complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
1. ADJOURNS THE PROCEEDINGS
a) on the first applicant's complaints relating to the
criminal proceedings against him and his subsequent
detention;
b) on the complaints of both applicants concerning the
censorship of a letter;
2. DECLARES INADMISSIBLE
a) the complaint of both applicants concerning the refusal
of a visit in prison;
b) the complaint of the second applicant concerning the length
of her detention on remand.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)