Application No. 11894/85
Stefan TOTH
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 3 July 1990)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-17) .................................... 1
A. The application
(paras. 2-4) ............................. 1
B. The proceedings
(paras. 5-12) ............................ 1
C. The present Report
(paras. 13-17) ........................... 2
II. ESTABLISHMENT OF THE FACTS
(paras. 18-65) ................................... 4
A. The particular circumstances of the case
(paras. 18-60) ........................... 4
a. Preliminary investigations
(paras. 18-40) ....................... 4
b. Indictment and trial
(paras. 41-60) ....................... 7
B. Relevant domestic law
(paras. 61-65) ........................... 10
III. OPINION OF THE COMMISSION
(paras. 66-135) .................................. 12
A. Points at issue
(para. 66) ............................... 12
B. Article 5 para. 3 of the Convention
(paras. 67-116) .......................... 12
a. Compliance with Article 5 para. 3 of
the Convention
(paras. 68-115) ...................... 12
(para. 116) .......................... 18
C. Article 5 para. 4 of the Convention
(paras. 117-134) ......................... 18
a. Compliance with Article 5 para. 4 of the
Convention
(paras. 118-133) ..................... 18
1. Appeal proceedings
(paras. 119-129) ................. 18
2. Proceedings brought by the
investigating judge
(paras. 130-133) ................. 20
b. Conclusion
(para. 134) .......................... 21
D. Recapitulation
(para. 135) .............................. 21
CONCURRING SEPARATE OPINION OF Mr. H.G. SCHERMERS AND
MESDAMES G.H. THUNE AND J. LIDDY ......................... 22
APPENDIX I: HISTORY OF THE PROCEEDINGS ............... 23
APPENDIX II: DECISION ON THE ADMISSIBILITY ............ 24
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, born in 1953, is an Austrian citizen residing
at Graz in Austria. Before the Commission, he is represented by
Ms. K. Hermann, a lawyer practising in Graz.
The application is directed against the Republic of Austria
whose Government were represented by their Agent, Ambassador Helmut
Türk, Head of the International Law Department at the Federal Ministry
of Foreign Affairs.
3. The application relates to the applicant's detention on remand
in criminal proceedings against him on suspicion of having committed
various instances of aggravated fraud. The applicant was remanded in
custody from 11 January 1985 until 18 February 1987. During his
detention the applicant filed numerous requests for release which were
eventually dismissed by the Review Chamber at the Salzburg Regional
Court and, upon appeal, by the Linz Court of Appeal. The Linz Court
of Appeal on a number of occasions also decided to prolong the
applicant's detention on remand. On 26 May 1988 the applicant was
sentenced to four and a half years' imprisonment.
4. The applicant complains under Article 5 para. 3 of the
Convention that the length of his detention on remand, lasting 25
months, exceeded a reasonable time within the meaning of this
provision. Under Article 5 para. 4 he complains that neither he nor
his lawyer were present in the proceedings concerning his detention
before the Linz Court of Appeal.
B. The proceedings
5. The application was introduced on 12 October 1985 and
registered on 10 December 1985.
6. On 7 July 1987 the Rapporteur decided to request information
from the respondent Government pursuant to Rule 40 para. 2 (a) of the
Commission's Rules of Procedure. The information was provided by the
respondent Government on 21 September 1987, and comments thereon were
submitted by the applicant on 12 October 1987.
7. On 9 March 1988 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on its admissibility and merits
pursuant to Rule 42 para. 2 (b) of its Rules of Procedure in respect
of the applicant's arrest, the length of detention, and the
proceedings in which the legality of his detention was decided. The
respondent Government's observations were submitted on 31 May 1988 and
the reply thereto by the applicant on 18 July 1988.
8. On 15 December 1988 the Commission decided in accordance with
Rule 42 para. 3 (a) of the Rules of Procedure to invite the Government
to submit written observations in respect of the appeal proceedings in
which the legality of the applicant's detention was decided. The
respondent Government's further observations were submitted on
10 February 1989 and the reply thereto by the applicant on 13 March 1989.
9. On 15 December 1988 the Commission also decided to invite the
parties to a hearing on the admissibility and merits of the
application insofar as it raised issues under Article 5 paras. 3 and
4 of the Convention.
10. The hearing took place on 8 May 1989. The applicant, who was
present, was represented by Ms. K. Hermann.
The respondent Government were represented by their Agent,
Ambassador H. Türk, as well as by Mr. W. Okresek of the Federal
Chancellery at Vienna, Ms. J. Gartner of the Federal Ministry of
Justice at Vienna, and Ms. U. Plassnik of the Permanent Representation
of Austria to the Council of Europe at Strasbourg, as advisers.
11. Following the hearing the Commission declared the application
admissible with regard to the applicant's complaints under Article 5
para. 3 of the Convention concerning the length of his detention on
remand, and under Article 5 para. 4 of the Convention concerning the
proceedings before the Linz Court of Appeal. The remainder of the
application, including a complaint under Article 6 para. 1 of the
Convention concerning the length of the proceedings, was declared
inadmissible.
12. After declaring the application admissible, the Commission,
acting in accordance with Article 28 para. 1 (b) of the Convention,
also placed itself at the disposal of the parties with a view to
securing a friendly settlement of the case. Consultations with the
parties took place between 17 May 1989 and 18 January 1990. In the
light of the parties' reaction, the Commission now finds that there is
no basis upon which a settlement can be effected.
C. The present Report
13. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberation and
votes, the following members being present:
MM. S. TRECHSEL, Acting President
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
14. The text of this Report was adopted on 3 July 1990 and is now
transmitted to the Committee of Ministers of the Council of Europe in
accordance with Article 31 para. 2 of the Convention.
15. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
16. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
17. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
a. Preliminary investigations
18. On 1 June 1984 the Salzburg Regional Court (Landesgericht)
issued a warrant of arrest (Haftbefehl) against the applicant, who was
then of unknown abode, on suspicion of having committed, inter alia,
the offence of aggravated fraud (schwerer Betrug) according to Section
147 para. 3 of the Austrian Criminal Code (Strafgesetzbuch), together
with a certain J.M. In particular, the applicant had allegedly made
out various uncovered cheques, drawn from bank accounts opened by
J.M., and induced J.M. to cash them in other banks. The warrant of
arrest stated with reference to Section 175 of the Austrian Code of
Criminal Procedure (Strafprozessordnung) that there was a danger of
absconding in view of the fact that the applicant's place of residence
was not known, and that there was also a danger of repetition, namely
that he would commit new offences of the same kind, since he had
previously been convicted on a number of occasions.
19. On 24 August 1984, the Salzburg Regional Court issued an
international search warrant (Steckbrief) against the applicant.
Therein, the Court referred to eleven instances of attempted or
completed fraud regarding a total amount of over one million AS and
concerning financial institutions in various towns in the Federal
Republic of Germany and in Austria. The warrant of arrest mentioned as
a third co-accused a certain Ch.B.
20. In January 1985 the applicant was residing at Graz without
being duly registered.
21. On 11 January 1985 at 23h00 the applicant was arrested at Graz
airport where he was awaiting the arrival of a friend. The applicant
was brought to the Feldkirchen constabulary. On 12 January 1985 he
was heard by the investigating judge at the Graz Regional Court. According
to the document "Interrogation of the accused" ("Vernehmung des
Beschuldigten"), the applicant was informed that a warrant of arrest
and a search warrant had been issued against him on suspicion of the
offence of aggravated fraud. He also noted that temporary custody
(Verwahrungshaft) was being imposed on him according to Section 175
of the Code of Criminal Procedure on the grounds of a danger of
collusion (recte: repetition) and of absconding.
22. On 17 January 1985 the applicant was transferred to Vienna and
on 22 January 1985 to Salzburg. The co-accused J.M. was arrested on
17 December 1984.
23. On 23 January 1985 a judge at the Salzburg Regional Court
heard the applicant. According to the document "Interrogation of the
accused", which was signed by the applicant, the applicant was
informed that preliminary investigations (vorläufige Untersuchung)
were being instituted against him and he would not object thereto.
The applicant was informed that his detention on remand had been
ordered on the grounds of a danger of absconding and of repetition
according to Section 180 paras. 1 and 2 of the Code of Criminal
Procedure.
24. In its decision of 23 January 1985 the Salzburg Regional Court
ordered, with reference to the instances mentioned in the search
warrant of 24 August 1984, the applicant's detention on remand, inter
alia, on suspicion of attempted and completed fraud according to
Section 147 para. 3 of the Criminal Code. The Court stated that the
applicant had previously attempted to avoid prosecution by changing
his residence for which reason there was a danger that, if he remained
in liberty, he would abscond or hide in view of the prospective
punishment. The Court also saw a danger of repetition as the applicant
was not socially integrated and without employment. For this reason,
it was to be feared that he would commit further offences, with severe
consequences, of the same kind as the ones in respect of which he had
twice been convicted previously.
25. This decision was handed to the applicant on 24 January 1985.
He was heard by the investigating judge as to the reported facts
(Anzeigetatbestände) on 25, 28, 29, 30 and 31 January and 1 February
1985. On 7 February the Swiss authorities announced their intention
to prosecute the applicant.
26. On 15 February 1985 the applicant filed an application for his
release from detention. Therein he claimed that he could now
demonstrate a permanent residence at his sister's, and that there were
prospects for a particular job. On 19 February 1985, further
investigations were instituted with regard to offences allegedly
committed by the applicant in Switzerland.
27. On 27 February 1985 the Review Chamber (Ratskammer) at the
Salzburg Regional Court refused the application. According to the
decision, the applicant and his lawyer were present at the hearing
concerning the examination of the applicant's detention on remand
(Haftprüfungsverhandlung). The Chamber found that there was a grave
suspicion that he had committed attempted or completed aggravated
fraud together with two other persons. Moreover, there was a danger
of absconding in view of the fact that previously the applicant had
attempted to avoid prosecution by repeatedly changing his residence
and that, in view of the severity of his prospective sentence, he
would flee or hide. The Chamber also saw a danger of the applicant
committing further offences in view of his previous two convictions
which concerned offences of the same type and as he was not socially
integrated and without regular employment. Finally, the Chamber found
that the purpose of detention could not be attained by other more
lenient measures.
28. On 1 March 1985 the case-file was again sent back to the
investigating judge who was, however, on holiday until 15 April 1985.
On 30 April 1985 the investigating judge heard the applicant with
regard to the co-accused J.M. From 26 April to 1 May 1985 the
applicant served a prison sentence apparently relating to a customs
contravention. On 15 May and 24 June 1985 the investigating judge
requested information from two German banks.
29. On 19 June 1985, upon application of the investigating judge,
the Linz Court of Appeal (Oberlandesgericht) decided in camera to
allow an extension of the applicant's detention on remand for up to
eight months as from 23 January 1985. The Court stated that there was
a grave suspicion that the applicant had committed the offence of
aggravated fraud, involving damages of more than two million AS. The
Court thereby referred to various reports to the police (Anzeigen),
the police inquiries, and the statements made by the co-accused.
The Court also noted that the proceedings had become extraordinarily
voluminous due to the multitude of facts and the contradictory
statements of the applicant and other accused. The Court found that,
in the light of new results of the inquiries and the great volume and
difficulty of the case, the Prosecution would first require an
adequate period of time carefully to prepare the indictment and,
possibly, the subsequent proceedings before the Jury Court. The Court
also assumed a danger of absconding and of committing further offences
whereby it referred to the decision of 27 February 1985 as well as the
applicant's previous convictions. The Court considered that other,
more lenient measures would not suffice.
30. The applicant filed an appeal against this decision to the
Supreme Court (Oberster Gerichtshof) in which he referred to a
permanent address in Austria, to prospective employment and to the
strong attachment to his life companion. The appeal was rejected as
being inadmissible by the Supreme Court on 22 August 1985. The
case-file was returned to the investigating judge on 11 September 1985.
31. On 12 September 1985 the applicant again applied for his
release.
32. On 18 September 1985 the Linz Court of Appeal, upon
application of the investigating judge, decided in camera that the
applicant's detention on remand could be extended for up to 11 months.
With regard to the danger of absconding and of committing further
offences the Court found no changes in the relevant circumstances for
which reason it referred to the grounds given in the decisions of the
Review Chamber of 27 February and of the Court of Appeal of 19 June
1985. The Court also considered that these reasons for detention on
remand excluded other, more lenient measures.
33. On 24 September 1985 the Regional Court decided that the
preliminary investigations instituted against the applicant should be
extended also to the offence of arson (Brandstiftung) committed in
Switzerland. The applicant's appeal (Beschwerde) against this
decision was rejected on 2 October 1985 by the Review Chamber which
found, inter alia, that the applicant had failed to motivate his
appeal.
34. Upon termination of the preliminary investigations the
case-file was sent to the Public Prosecutor's Office (Staatsanwalt-
schaft) on 2 October 1985. The latter applied on 31 October 1985 for
the continuation of the preliminary investigations in order to
complete the case-file. These applications were granted on 7, 15 and
19 November 1985. The case-file was then transmitted to the Linz
Court of Appeal on 3 December 1985 for decision on the prolongation of
the applicant's detention.
35. On 11 December 1985, upon application of the investigating
judge and the Public Prosecutor's Office, the Linz Court of Appeal
extended in camera the applicant's detention on remand for up to 15
months. After recalling the offences of which he was suspected and,
with reference to previous decisions, the danger of committing further
offences and of fleeing, which in the Court's view could not be
prevented by a less severe measure, it stated in addition that the
applicant was further suspected of having incited another person to
burn down a restaurant in Switzerland, causing damages of 300,000 SFr.
The Court concluded that the investigations had not yet been completed
on account of the voluminous materials.
36. Following the requests of the applicant and J.M. for release
from detention on remand the case-file was transmitted to the Review
Chamber at the Salzburg Regional Court.
37. On 2 January 1986 the Review Chamber dismissed the requests.
At the deliberations a lawyer was present. The Chamber found that
according to the results obtained so far in the investigations the
applicant was suspected of forgery as well as of having caused damages
of up to 2 million AS to various financial institutions by issuing
uncovered cheques. With regard to the danger of absconding and of
committing further offences the Chamber referred to the decision of
11 December 1985. It noted that the situation had not changed and
that no other more lenient measures would suffice to meet the purpose
of detention on remand.
38. Also on 2 January 1986 the applicant was heard by an
investigating judge and confronted with a certain S.R. A final
interrogation of the applicant took place on 22 January 1986.
39. The applicant's further appeal against the decision of
2 January 1986 was dismissed in camera on 22 January 1986 by the Linz
Court of Appeal. The decision states that it was taken "after hearing
the Senior Public Prosecutor's Office" ("nach Anhörung der
Oberstaatsanwaltschaft"). The Court found that if the applicant was
released there would be a danger of his absconding. Insofar as the
applicant stated that he had no identity papers enabling him to
travel to other countries, that in Switzerland criminal proceedings
were pending against him, and that he was not permitted to enter
Germany, the Court found that the applicant could illegally cross the
border. The Court further assumed a danger of committing further
offences whereby it referred to five previous convictions of the
applicant, in particular one by the District Court (Amtsgericht) of
Stuttgart in Germany which had sentenced the applicant to 20 months'
imprisonment on charges of fraud and forgery. In view of the sentence
to be expected in the case of conviction the Court of Appeal did not
regard the length of detention so far as disproportionate. It found
that the grounds for detention on remand disclosed such intensity as
to exclude other, more lenient measures.
40. A petition for release, which the applicant addressed to the
Constitutional Court (Verfassungsgerichtshof), was dismissed by that
Court as inadmissible in a decision issued on 28 February 1986.
b. Indictment and trial
41. Meanwhile, on 26 February 1986 the preliminary investigations
were closed and on 12 March 1986 the Salzburg Public Prosecutor's
Office indicted the applicant on the grounds of partly attempted and
partly completed aggravated professional fraud according to Section
147 para. 3 of the Criminal Code, as well as of having forged a
particularly protected document.
42. According to the bill of indictment, which numbered 17 pages,
the applicant had drawn a number of cheques on various banks in
Germany and Austria and given them to Ch.B. and J.M. to cash them
in other banks in these countries. The bill of indictment mentioned
the applicant's previous two convictions on charges of fraud and of
receiving stolen goods, respectively, and stated that he was being
sought in the Federal Republic of Germany for nineteen instances of
cheque fraud. It referred to damages of 950,000 AS concerning
completed fraud and 1,250,000 AS concerning attempted fraud. In the
bill of indictment the Public Prosecutor's Office stated that further
investigations would be pursued in respect of the suspicion of arson
and other instances of aggravated professional fraud.
43. The applicant's objection against the bill of indictment was
dismissed, on 11 April 1986, by the Linz Court of Appeal which found
that the results of the investigations sufficed to suspect the
applicant of having committed the alleged offences, and it therefore
committed the applicant for trial.
44. In a separate decision of 11 April 1986, upon application of
the investigating judge, the Court of Appeal extended in camera the
applicant's detention on remand for up to 17 months in view of the
volume and difficulties of the investigations. The Court referred to
the bill of indictment of 12 March 1986 and found that no changes had
occurred to the advantage of the applicant in respect of the findings
of its previous decision of 22 January 1986.
45. On 30 April 1986 the case-file was transferred to the trial
judge who on 23 May 1985 ordered the hearing to take place on 11 June
1986. On 5 June 1986 the applicant's lawyer stated that he would no
longer represent the applicant after 11 June 1986.
46. The applicant's trial commenced, and a first hearing took
place, on 11 June 1986. Thereafter, the hearing was adjourned. Also
on 11 June 1986, an official defence counsel was appointed.
47. On 16 June 1986 the applicant requested his release from
detention, claiming that he had permanent residence in Austria and
confirmation of secure employment. This request was dismissed on
25 June 1986 by the Salzburg Regional Court and upon appeal on 9 July
1986 by the Linz Court of Appeal. Both courts referred to the reasons
previously given. The Court of Appeal further decided that detention
on remand was no longer called for in respect of J.M. who had by then
been remanded in custody for 25 months, though with regard to the
applicant it found that no other, more lenient, measures could be
employed. According to its decision the Court of Appeal decided in
camera "after hearing the Senior Public Prosecutor's Office" ("nach
Anhörung der Oberstaatsanwaltschaft").
48. On 24 July 1986 the Salzburg Regional Court contacted the
Vienna Regional Court as to the date of release of Ch.B. On 29 July
1986 a German court was requested to transmit a decision which arrived
on 18 August 1986.
49. Meanwhile, on 25 July 1986 the applicant filed a further
request to be released from detention, claiming that he was
economically and socially integrated and that he lacked the financial
means to abscond. This request was dismissed by the Salzburg Regional
Court on 30 July 1986 and, upon the applicant's appeal, the Linz Court
of Appeal on 20 August 1986, both of which referred to the reasons
stated in previous decisions as to the grounds of detention. The
Court of Appeal gave its decision "after hearing the Senior Public
Prosecutor's Office" ("nach Anhörung der Oberstaatsanwaltschaft").
50. On 22 September 1986 letters rogatory (Rechtshilfeersuchen)
were transmitted to the Swiss Federal Office for Police and to a
German court in respect of the witness D. The file was then sent to
a forensic expert who prepared an expert opinion in respect of J.M. on
8 October 1986.
51. The Salzburg Regional Court again decided in camera on
12 November 1986, with reference to the grounds given in previous
decisions, not to release the applicant. On 26 November 1986 the Linz
Court of Appeal, "after hearing the Senior Public Prosecutor's
Office" ("nach Anhörung der Oberstaatsanwaltschaft"), rejected the
applicant's appeal. The Court found that J.M. had considerably
implicated the applicant who had not refuted the suspicion of his
having committed the offences at issue. The Court upheld the previous
decision with regard to the grounds of detention finding that they
were still valid and did not permit more lenient measures. In view of
the damages stated in the bill of indictment, exceeding one million
AS, and the applicant's previous convictions of offences of the same
type, the Court concluded that the length of detention was not yet
disproportionate.
52. Meanwhile, on 12 November 1986 the applicant unsuccessfully
attempted to discharge his officially appointed lawyer. On
17 November 1986 the applicant complained that no date had been fixed
for a hearing. This complaint was to no avail, as the authorities
were awaiting evidence from Germany. On 3 December 1986 a German
court transmitted further evidence to the Austrian authorities as to
the witness D.
53. Following the applicant's complaints about his officially
appointed lawyer, the Bar Association stated on 16 December 1986
that they saw no reason to appoint a new lawyer.
54. On 12 and 16 December 1986 the trial judge requested the
Dornbirn and Bregenz Constabularies to provide the addresses of Ch.B.
and S.R. A similar request in respect of Ch. B. was filed with the
Salzburg Federal Police Direction on 22 January 1987.
55. On 28 January 1987 the Review Chamber at the Salzburg Regional
Court refused the applicant's request of 21 January for release from
detention.
56. Upon the applicant's appeal the Linz Court of Appeal decided
on 18 February 1987 to release the applicant. It considered that
after nearly 25 months of detention the danger of absconding and of
committing further offences had substantially subsided and more
lenient measures could be applied. The applicant was released on
condition that he pledged not to abscond or hide until the termination
of the trial or to impede the investigations. He was also ordered to
take permanent residence in Austria and inform the Court thereof as
well as to report every two days to the police. Finally, the Court
decided provisionally to withdraw the travel papers in the applicant's
possession.
57. On 9 July 1987 the Salzburg Public Prosecutor's Office
indicted the applicant in respect of further instances of fraud. The
bill of indictment which numbered 9 pages stated that the applicant
had, together with a certain S.R., attempted fraudulently to cash
uncovered cheques, whereby the damages amounted to approximately
800,000 AS. The offences concerned banks in Germany, Austria and
Switzerland. The bill of indictment was sent to the applicant on
17 July 1987. The applicant's appeal against the indictment of 9 July
1987 was dismissed by the Linz Court of Appeal on 30 September 1987.
58. On 30 September 1987 the Salzburg Regional Court partly
granted the applicant's further complaint in that it decided that
henceforth he had to report weekly to the police. His appeal against
this decision was dismissed on 4 November 1987 by the Linz Court of
Appeal.
59. On 22 February 1988 the hearing was fixed for 25 and 26 May
1988.
60. On 26 May 1988 the Salzburg Regional Court convicted the
applicant of aggravated fraud and sentenced him to four and a half
years' imprisonment.
B. Relevant domestic law
61. The charges brought against the applicant concerned, inter
alia, the offence of aggravated fraud which, according to Section 147
para. 3 of the Criminal Code, shall be punished with imprisonment
lasting between one and ten years if the damage exceeds 100,000 AS.
62. The Code of Criminal Procedure states in Section 180 paras. 1
and 2 that detention on remand is imposed if the accused is seriously
suspected of having committed a criminal offence, and if there is a
danger of absconding, collusion, or of committing a further offence.
According to para. 3 of Section 180, a danger of absconding is not to
be assumed if the accused is suspected of a criminal offence which
will not be punished more severely than with five years' imprisonment;
if the accused lives in orderly circumstances; and if he has a
permanent residence in Austria, except if he has already attempted to
abscond.
63. Section 193 para. 4 of the Code of Criminal Procedure states
that if the investigation is particularly voluminous or difficult the
Court of Appeal can decide, upon application inter alia of the
investigating judge, that detention on remand may last up to two years
if it is ordered on the ground of a danger of collusion or for another
reason, and if the offence at issue is threatened with a punishment
which exceeds five years. According to Section 193 para. 5 this
time-limit for detention on remand no longer applies once the trial
has commenced, as long as there are other grounds of detention than
only the danger of collusion.
64. According to Section 194 para. 2 of the Code of Criminal
Procedure the detainee has at all times the possibility to request an
examination as to the lawfulness of the decision to impose or to
continue his detention on remand. As a result, a hearing is conducted
(Haftprüfungsverhandlung) before the Regional Court or the Review
Chamber which, according to Section 12 of the Code of Criminal
Procedure, is a chamber of that Court. Section 195 of the Code of
Criminal Procedure provides that at the hearing before the Regional
Court or the Review Chamber the detainee is present. He has the
possibility of filing an appeal against the decision to the Court of
Appeal.
65. Section 180 para. 4 of the Code of Criminal Procedure provides
that detention on remand may not be maintained where the purposes of
the prisoner's detention can be achieved by one or several of more
lenient measures mentioned in para. 5 of this provision. These more
lenient measures are, inter alia: the pledge not to flee or hide, or
to leave one's residence without the investigating judge's permission;
the pledge not to hinder the investigations; the order to reside in a
specific place, or to avoid a locality, or alcoholic beverages; the
order to notify changes of the place of residence; the temporary
withdrawal of travel papers or of papers required to drive a vehicle;
bail; and the provisional appointment of a probation officer.
According to Section 190 release on bail is possible if the offence is
not punished with a minimum sentence of ten years and if detention on
remand is imposed on account of a danger of absconding.
III. OPINION OF THE COMMISSION
A. Points at issue
66. The points at issue are
a) whether there has been a violation of Article 5 para. 3 (Art. 5-3)
of the Convention, in that the applicant's detention on remand
exceeded a reasonable time;
b) whether there has been a violation of Article 5 para. 4
(Art. 5-4) of the Convention, in that neither the applicant
nor his lawyer was present at the proceedings before the Linz
Court of Appeal concerning the prolongation of his detention on
remand and his requests to be released from detention on remand.
B. Article 5 para. 3 (Art. 5-3) of the Convention
67. Article 5 para. 3 (Art. 5-3), insofar as relevant, provides
as follows:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) (Art. 5-3-c) of this Article
... shall be entitled to trial within a reasonable time or
to release pending trial. Release may be conditioned by
guarantees to appear for trial."
a. Compliance with Article 5 para. 3 (Art. 5-3) of the Convention
68. The applicant was arrested on suspicion of fraud and remanded
in custody on 11 January 1985. During his detention he served a
prison sentence from 26 April to 1 May 1985. He was released from
detention on remand on 18 February 1987. The period of detention on
remand to be considered under Article 5 para. 3 (Art. 5-3) of the
Convention therefore lasted two years, one month and two days.
69. The applicant maintains that this period of detention on
remand was excessive as there were no valid reasons to assume a danger
of his absconding or committing further offences.
70. The Government emphasise the particular complexity of the
proceedings. There were also convincing grounds for suspecting the
applicant of having committed the offences with which he was charged
and for assuming a danger of his absconding and committing further
offences. Moreover, the applicant contributed to the length of his
detention by frequently filing requests for his release.
71. The Commission recalls that the reasonableness of the time
spent by an accused person in detention up to the beginning of the
trial must be assessed in relation to the very fact of his detention.
Until conviction he must be presumed innocent, and the purpose of the
provision under consideration is essentially to require his
provisional release once his continuing detention ceases to be
reasonable. Likewise, in determining in a given case whether or not
the detention of an accused person exceeds a reasonable limit, it is
for the national judicial authorities to seek all the facts arguing
for or against the existence of a genuine requirement of public
interest justifying a departure from the rule of respect for
individual liberty. It is essentially on the basis of the reasons
given in the decision on applications for release pending trial and of
the true facts mentioned by the applicant in his appeals that the
question whether or not there has been a violation of the Convention
has to be determined (Eur. Court H.R., Neumeister judgment of 2 June
1968, Series A no. 8, p. 37, paras. 4 et seq.). Article 5 para. 3
(Art. 5-3) relates to persons charged and detained. It implies that
there must be special diligence in the conduct of the prosecution of
the cases concerning such persons. Even if the duration of the
preliminary investigation is not open to criticism, that of the
detention must not exceed a reasonable time (see Eur. Court H.R.,
Stögmüller judgment of 10 November 1969, Series A no. 9, p. 40, para.
5).
72. The grounds relating to the public interest cited by
the national judicial authorities may be very pertinent and sufficient to
justify keeping a person in detention pending trial, but that does not
free the authorities from their obligations under the Convention if
they themselves are seen to have conducted the case in such a way as
to entail an unreasonable prolongation of detention of the accused
pending trial and thus inflicting on him in the interests of public
policy a greater sacrifice than that which would normally be demanded
of a person presumed innocent (see No. 8118/77, Schertenleib v.
Switzerland, Comm. Report 11.12.80, D.R. 23 p. 190). With the passage
of time the grounds for detention will themselves diminish in
pertinence when balanced against the right to liberty guaranteed by
Article 5 (Art. 5) of the Convention of the person provisionally
detained (see No. 12325/86, Kemmache v. France, Comm. Report,
8.6.90).
73. The Commission has first examined the reasons given by the
Austrian authorities when prolonging the applicant's detention on
remand and refusing his applications to be released on bail.
74. The Commission notes that the authorities suspected the
applicant of having committed the offences of attempted and completed
fraud, involving damages of up to 2 million AS, which according to
Section 147 of the Austrian Criminal Code shall be punished with
imprisonment lasting between one and ten years.
75. In this respect the Commission recalls that the persistence of
reasonable suspicion alone cannot suffice to justify a protracted
period of detention on remand, such as in the present case. The
Commission must therefore examine the other grounds which persuaded
the Austrian authorities to decide that the detention on remand should
be continued, in particular whether they were "relevant" and
"sufficient" (see Eur. Court H.R., B. judgment of 28 March 1990,
Series A no. 175, para. 42; Matznetter judgment of 10 November 1969,
Series A no. 10, p. 34, para. 12).
76. The applicant claims that in his case there were not
sufficiently concrete reasons for assuming a danger of his absconding
or committing further offences. He had the possibility of employment
and residence in Austria and was socially integrated. His previous
convictions could not be sufficient justification. Other, more lenient
measures were called for. Nevertheless, his requests for release on
bail were refused.
77. The Government submit that the primary responsibility for
examining the grounds of detention on remand falls to the domestic
authorities who, furthermore, need not in every decision mention every
consideration of their examination. With regard to the danger of the
applicant committing further offences, the Government refer to the
applicant's attempts to avoid prosecution by frequently changing his
residence which he did not register with the authorities. The
Government also submit that even if the applicant's sister had on
26 February 1985 confirmed that he could live and work as a concierge
in an apartment house belonging to her life companion, it could not be
said that he had sufficient professional or social ties. As regards
the danger of absconding the Government refer to the applicant's
previous convictions and to the fact that he was suspected of the
offence of attempted and completed fraud. Finally the Government
emphasise that the authorities constantly examined the possibility of
other measures instead of detention. Bail was not considered in view
of the applicant's apparent lack of financial resources.
78. The Commission notes that in the present case the grounds
given by the Austrian courts to justify the applicant's detention on
remand were the danger that he might commit further offences and the
danger of his absconding.
79. As regards the danger of the applicant committing further
offences, the Austrian courts considered that he had previously been
convicted of offences of the same type and that he was not socially
integrated and that he was without regular employment. The Commission
refers here to the decisions of the Salzburg Regional Court of 23
January 1985 (para. 24 above), of the Review Chamber at that Court of
27 February 1985 (para. 27 above), and of the Linz Court of Appeal of
19 June 1985 and 22 January 1986 (paras. 29 and 39 above).
80. As regards the danger of absconding, the Commission recalls
that the possibility of a severe sentence is not sufficient after a
certain lapse of time to justify the length of detention (see Eur.
Court H.R., Wemhoff judgment of 27 June 1968, Series A no. 7, p. 25,
para. 14).
81. In the present case the Austrian courts assumed a danger of
absconding on account of the severity of the applicant's prospective
sentence. In addition, they considered that he had previously
attempted to avoid prosecution by changing his residence. The
Commission refers here to the decisions of the Salzburg Regional Court
of 23 January 1985, of the Review Chamber at that Court of 27 February
1985, and of the Linz Court of Appeal of 22 January 1986.
82. It is true that on various occasions, particularly after the
Linz Court of Appeal's decision of 22 January 1986, the examination of
the Austrian courts as to the danger of the applicant absconding and
committing further offences limited itself to a confirmation of the
findings of previous decisions. However, the Commission observes that
the courts thereby considered that the circumstances leading to the
earlier conclusions had not changed and therefore referred to the
previous decisions for reasons of procedural economy.
83. Finally, the Commission notes that the Austrian courts, when
deciding on the applicant's detention on remand, regularly considered,
and as a result dismissed, the possibility of other, more lenient
measures instead of detention on remand. Insofar as the applicant
claims that he requested to be released on bail, the Commission notes
that according to Section 190 of the Code of Criminal Procedure
release on bail is only possible if detention on remand is imposed on
the ground of a danger of absconding, whereas with regard to the
present applicant the Austrian courts also assumed a danger of his
committing further offences. The Commission further notes the
submissions of the respondent Government according to which the
authorities did not consider bail in view of the applicant's apparent
lack of financial resources.
84. As a result, the Commission accepts that in reaching each of
their decisions to prolong the applicant's detention on remand the
Austrian courts could reasonably conclude that there was a risk of the
applicant absconding or committing further offences. The question
however remains whether, as the detention continued and these grounds
diminished in pertinence, there was still a sufficient justification
for the continued detention for the purpose of Article 5 para. 3
(Art. 5-3) of the Convention (see No. 12325/86, Kemmache v. France,
Comm. Report ibid.).
85. In that connection, the complexity of the case falls to be
considered first. Thus, the Austrian authorities, for instance the
Linz Court of Appeal in its decisions of 19 June and 11 December 1985,
also referred to the great volume and complexity of the case and of
the extent of the investigations required when deciding on the
applicant's detention on remand. Likewise, before the Commission the
respondent Government have also referred to the complexity of the
case.
86. The Commission considers that the complexity of a case cannot
stem from the fact that a detainee has filed various requests to be
released from detention on remand, or that the courts concerned
regularly examine the necessity of prolonging his detention.
87. In the present case the Commission notes that the criminal
proceedings instituted against the applicant comprised a number of
charges relating to fraud, in particular cheque fraud, and receiving
stolen goods. The charges involved three other persons, at times of
unknown residence, and concerned banks in Austria and the Federal
Republic of Germany. Investigations were also conducted with regard
to the offence of arson committed in Switzerland.
88. In the Commission's opinion the charges in particular relating
to fraud would have necessitated investigations with regard to a
number of accounts of banks in different towns in the countries
concerned, often requiring proceedings of letters rogatory. Moreover,
accomplices of the applicant were at times of unknown residence.
89. The Commission is thus satisfied that the investigations
raised to some extent difficult questions of fact which may have
contributed to the duration of the proceedings. Nevertheless, these
difficulties cannot in the Commission's opinion serve to justify the
applicant's continuing detention on remand for a period of 25 months.
90. It remains to be considered whether the Austrian authorities
displayed the diligence required by the Convention in the case of a
detained person, in particular whether detention was not prolonged
unduly by the manner in which the case was conducted (see Schertenleib
v. Switzerland, Comm. Report, loc. cit. p. 197 et seq.). The
Commission is thus called upon to review the authorities'
investigations of the case as well as the manner in which they dealt
with the complaints and appeals which the applicant filed in order to
obtain a more detailed preparation of the trial.
91. The applicant contends that at the time of his indictment the
authorities had still not concluded various investigations. The trial
was fixed for 11 June 1986 merely as thereafter detention on remand
could be imposed without a time-limit.
92. The Government, referring to a time-chart of the proceedings,
submit that essentially the authorities pursued their investigations
throughout the applicant's detention on remand.
93. The Commission notes that, after the applicant was transferred
to Salzburg prison on 22 January 1985, the investigating judge heard
him as to the reported facts on six occasions between 25 January and
1 February 1985 (see para. 25 above). On 7 February 1985 the Swiss
authorities announced their interest in prosecuting the applicant.
On 19 February 1985 investigations were instituted with regard to
offences committed in Switzerland.
94. However, between 19 February and 30 April 1985, i.e. during a
period of over two months, the authorities undertook no investigations.
95. On 30 April 1985 the investigating judge heard the applicant
with regard to the co-accused J.M. On 15 May and 24 June 1985,
information was requested from two German banks.
96. There follows a further period of inactivity of three months
between 24 June and 24 September 1985.
97. On 24 September 1984 the Regional Court extended the
preliminary investigations against the applicant to the offence of
arson. His appeal against this decision was rejected by the Review
Chamber on 2 October 1985. On the same day, the investigations were
closed. On 7, 15 and 19 November 1985 the Regional Court granted the
applications of the Public Prosecutor's Office to continue the
preliminary investigations.
98. Between 19 November 1985 and 2 January 1986 there is a third
period of inactivity of approximately one and a half months.
99. On 2 January 1986 the investigating judge confronted the
applicant with a certain S.R. On 22 January 1986 a final
interrogation of the applicant took place.
100. Thereupon, the authorities undertook no investigations during
one month until 26 February 1986.
101. On 26 February 1986 the preliminary investigations were
closed, and on 12 March 1986 the applicant was indicted. His
objection thereto was dismissed by the Linz Court of Appeal on
11 April 1986. On 30 April 1986 the case-file was transferred to the
trial judge who on 23 May 1986 ordered the hearing to take place on
11 June 1986. On this day a hearing took place. The hearing was then
adjourned.
102. Here, there is a fifth period of inactivity lasting from
11 June until 24 July 1986, i.e. approximately one and a half months.
103. On 24 July 1986 the Salzburg Regional Court contacted the
Vienna Regional Court as to Ch.B. On 29 July 1986 a German court was
requested to transmit a decision. The latter arrived on 18 August 1986.
104. Between 18 August and 22 September 1986 a further month passed
during which the case was not actively pursued.
105. On 22 September 1986 letters rogatory were transmitted to the
Swiss Federal Police and to a German court in respect of the witness
D. The applicant's case-file was then sent to a forensic expert who
prepared an opinion in respect of J.M. on 8 October 1986.
106. There follows a seventh period of inactivity of approximately
one month from 8 October until 12 November 1986.
107. On 12 November 1986 the applicant unsuccessfully attempted to
discharge his official defence counsel. On 3 December 1986 the
German court filed information as to the witness D. On 12 and 16
December 1986 and on 22 January 1987 two constabularies and a Police
Direction were asked to provide the addresses of Ch.B. and S.R. On
18 February 1987 the applicant was released.
108. As a result, there is an overall period of approximately
eleven months during which the authorities did not actively pursue the
case. This period of time appears substantial.
109. It is true that in a case such as the present one, which
involved certain difficult elements of fact, time must also be allowed
for studying the case-file and the successive additions to it, for
preparing interrogations and for issuing requests for evidence on
letters rogatory. Time must also be allowed for the routine work
which the judge does in his chambers. All these elements will only be
indirectly reflected in the procedural documents (see Schertenleib v.
Switzerland, Comm. Report, loc. cit. p. 198).
110. Nevertheless even if due account is taken of such activities
which are not reflected in the procedural documents, the Commission
considers that they cannot justify the delays during all the periods
in which the authorities did not pursue the case.
111. The Government submit that the applicant filed many requests
to be released from detention, at times immediately after the Linz
Court of Appeal had rejected a previous appeal, and is thus to some
extent himself responsible for the length of his detention.
112. The Commission recalls that a distinction must be made between
applications for release which are in fact aimed at shortening the
period of detention, and other appeals which may delay the proceedings.
Applications for release from detention on remand do not justify delay
in bringing an accused to trial. As regards the other appeals, if the
applicant has a choice between faster proceedings and a more detailed
preparation of the trial, he must, if he chooses the latter, bear the
consequences of his choice (see Schertenleib v. Switzerland, Comm.
Report, loc. cit. p. 137 at p. 199 et seq.).
113. In the present case the applicant filed a number of complaints
and appeals which must have led to delays in the proceedings. Thus, he
unsuccessfully appealed against the decision of the Regional Court of
24 September 1985 which extended the investigations instituted against
the applicant. The applicant also objected, though to no avail,
against the bill of indictment of 12 March 1986. On 12 November 1986
the applicant unsuccessfully attempted to discharge his official
defence counsel.
114. On the whole, the Commission considers that this conduct of
the applicant must have caused certain delays in the case coming to
trial. The number of complaints and appeals nevertheless does not
appear excessive.
115. The Commission therefore finds, having regard to the overall
length of the investigation and to the fact that the authorities do
not appear to have at all times acted with the necessary diligence and
expedition, that there was not a sufficient justification for the
continuation of the detention during the whole period at issue.
Consequently, the detention on remand exceeded a reasonable time
within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.
b. Conclusion
116. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 5 para. 3 (Art. 5-3) of the Convention in
that the applicant's detention on remand exceeded a reasonable time.
C. Article 5 para. 4 (Art. 5-4) of the Convention
117. Article 5 para. 4 (Art. 5-4) of the Convention provides:
"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. Compliance with Article 5 para. 4 (Art. 5-4) of the Convention
118. The Government submit that the applicant's detention on remand
was the object of two different types of proceedings before the Linz
Court of Appeal. In one type of proceedings, the Court of Appeal
decided as the only instance, upon application of the investigating
judge, whether or not to prolong the applicant's detention on remand.
In the other type of proceedings, the applicant filed a request to be
released from detention on remand. Thereafter, first the Review
Chamber at the Salzburg Regional Court and, then, upon the applicant's
appeal, the Linz Court of Appeal decided on the applicant's request.
1. Appeal proceedings
------------------
119. The Commission has first examined the proceedings whereby the
Court of Appeal decided, upon appeal, on the lawfulness of the
applicant's detention on remand. This occurred on 22 January, 9 July,
20 August and 26 November 1986. On 18 February 1987 the Linz Court of
Appeal decided to release the applicant.
120. The applicant submits that these appeal proceedings did not
comply with the requirements of Article 5 para. 4 (Art. 5-4) of the
Convention. The Linz Court of Appeal decided in his absence on his
detention on remand whereas a member of the Senior Public Prosecutor's
Office was present and could reply to questions of the Court.
According to the principle of equality of arms the applicant should
have had the opportunity to comment on such replies.
121. The Government submit with reference to the Neumeister case
that Article 5 para. 4 (Art. 5-4) of the Convention does not require a
full contradictory and oral procedure (see Eur. Court H.R.,
Neumeister judgment of 27 June 1968, Series A no. 8, p. 44, para. 24).
Rather, the accused must at some stage have had the possibility of
participating in proceedings in which the lawfulness of his detention
is examined. In the present case the applicant could at any time file
a request to be released from detention. The resulting proceedings
before the Review Chamber were contradictory; the applicant or his
lawyer could be present and comment on statements made by the
investigating judge or the prosecuting authorities. In the subsequent
appeal proceedings before the Linz Court of Appeal a member of the
Senior Public Prosecutor's Office was present but only replied to
questions rather than make statements or file requests.
122. The Commission recalls the case-law of the Convention organs
according to which in matters of detention Article 5 para. 4
(Art. 5-4) of the Convention need not always be attended by the same
guarantees as in Article 6 para. 1 (Art. 6-1) of the Convention for
matters of civil or criminal litigation (see Eur. Court H.R.,
Winterwerp judgment of 24 October 1979, Series A no. 33, p. 24, para.
60). Nevertheless, it is essential in such proceedings, in which the
lawfulness of a person's detention on remand is reviewed, that the
person concerned has access to a court and is afforded the fundamental
procedural guarantees applied in matters of deprivation of liberty
(see Lamy v. Belgium, Comm. Report 8.10.87, para. 87, Eur. Court
H.R., Series A no. 151, p. 23).
123. Among these fundamental guarantees features the opportunity of
the person concerned to be heard by the court in person, or where
necessary through some form of representation (see Eur. Court H.R.,
Winterwerp judgment, loc. cit.). In addition, where the prosecuting
authorities are granted the possibility of consulting the file or
expressing their views in these proceedings, the person concerned must
have had the benefit of a "procedure that was really adversarial" (see
Eur. Court H.R., Lamy judgment of 30 March 1989, Series A no. 151,
p. 17, para. 29; Sanchez-Reisse judgment of 21 October 1986, Series A
no. 107, p. 19, para. 51).
124. In the present case, in the proceedings before the Linz Court
of Appeal a member of the Senior Public Prosecutor's Office was
present whereas the applicant and his lawyer were not.
125. As regards the functions of the representative of the Senior
Public Prosecutor's Office before the Court of Appeal, the Commission
notes that the decisions of that Court were taken "after hearing the
Senior Public Prosecutor's Office" ("nach Anhörung der Oberstaats-
anwaltschaft"). The Government submit that in fact the latter only
replied to questions but did not make statements or file requests.
126. The Commission considers that, by replying to questions from
the Court, the Senior Public Prosecutor's Office was able to put
forward views of the prosecuting authorities. Since neither the
applicant nor his lawyer was present the applicant was deprived of the
possibility to plead his case and to address the Court on issues such
as whether there continued to exist a danger of committing further
offences or of absconding, or whether other more lenient measures were
called for instead of detention on remand.
127. Thus, the procedure before the Court of Appeal did not afford
the applicant an opportunity of challenging appropriately the views
expressed by the Senior Public Prosecutor's Office. Accordingly, he
did not have the benefit of a "procedure that was really adversarial"
as required by Article 5 para. 4 (Art. 5-4) of the Convention.
128. The Government submit that the applicant's presence before the
Court of Appeal was not required as he had already been present in the
first instance proceedings before the Review Chamber at the Salzburg
Regional Court.
129. The Commission notes that, once the lawfulness of a person's
detention has been examined by a court, there is no right under
Article 5 para. 4 (Art. 5-4) of the Convention to a second court
examination on appeal. Nevertheless, where under domestic law such
appeal proceedings have been instituted and the investigating or
prosecuting authorities may present their views at an appeal hearing,
the detained person must be granted the same opportunity in order to
benefit from an adversarial procedure.
2. Proceedings brought by the investigating judge
----------------------------------------------
130. Finally, the Commission turns to the proceedings before the
Linz Court of Appeal in which the latter decided, upon application of
the investigating judge, to prolong the applicant's detention on
remand. The Commission refers here to the decisions of 19 June,
18 September and 11 December 1985 and 11 April 1986. The applicant
was again not present in these proceedings.
131. The Commission observes that the applicant frequently applied
to the Review Chamber to be released from detention on remand. He was
thus "entitled to take proceedings" before a court in order to test
the lawfulness of his confinement within the meaning of Article 5
para. 4 (Art. 5-4) of the Convention.
132. On the other hand, in the proceedings concerning the
prolongation of the applicant's detention, the Court of Appeal
determined the maximum possible period of detention on remand. These
proceedings were conducted separately from and in addition to the
proceedings which the applicant was entitled to take within the
meaning of Article 5 para. 4 (Art. 5-4) of the Convention.
133. In the Commission's opinion, therefore, the proceedings before
the Court of Appeal concerning the prolongation of the applicant's
detention fall outside the scope of Article 5 para. 4 (Art. 5-4)
of the Convention.
b. Conclusion
134. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 5 para. 4 (Art. 5-4) of the Convention in
that neither the applicant nor his lawyer was present at the appeal
proceedings before the Linz Court of Appeal concerning his requests to
be released from detention on remand.
D. Recapitulation
135. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 5 para. 3 (Art. 5-3) of the Convention in
that the applicant's detention on remand exceeded a reasonable time
(para. 116).
The Commission concludes, by a unanimous vote, that there has
been a violation of Article 5 para. 4 (Art. 5-4) of the Convention in
that neither the applicant nor his lawyer was present at the appeal
proceedings before the Linz Court of Appeal concerning his requests
to be released from detention on remand (para. 134).
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Concurring separate opinion of Mr. H.G. SCHERMERS and
Mesdames G.H. THUNE and J. LIDDY
We agree that in the present case there has been a violation
of Article 5 para. 4 of the Convention in that neither the applicant
nor his lawyer was present at the appeal proceedings before the Linz
Court of Appeal concerning his requests to be released from detention
on remand.
However, we consider that the proceedings before the Linz
Court of Appeal concerning the prolongation of the applicant's
detention on remand do not fall outside the scope of Article 5 para. 4
of the Convention (see para. 133 of the Report).
It is clear that according to the relevant decisions of the
Linz Court of Appeal the latter examined the various conditions under
Austrian law as to the lawfulness of the applicant's detention, namely
the suspicion that he had committed the offences at issue and whether
there existed a danger of his committing further offences or of
absconding.
We are therefore satisfied that the Linz Court of Appeal in
fact reviewed the lawfulness of the applicant's detention on remand
within the meaning of Article 5 para. 4 of the Convention. As a
result, it must be examined whether these proceedings complied with
the requirements under this provision.
It is not in dispute between the parties that the applicant
was not present in the proceedings before the Court of Appeal. On the
other hand, it has also not been claimed that other parties were
present in these proceedings. The decisions of the Court of Appeal,
while stating that the Court decided upon application of the
investigating judge, make no reference to other parties.
We consider that the issues examined by the Court of Appeal,
namely whether there existed in the applicant's case a danger of
absconding and of committing further offences, were of direct
relevance to the prolongation of the applicant's detention. It would
thus have been essential for him to be present in these proceedings in
order to put forward his own case as to the lawfulness of his
detention. In addition it would have been important for him to
challenge any grounds mentioned by the investigating judge in his
application which militated in favour of prolonging the applicant's
detention on remand.
Accordingly, the applicant was not afforded fundamental
guarantees required in matters of deprivation of liberty, namely his
presence in the proceedings, as required by Article 5 para. 4 of the
Convention.
We thus conclude that there has also been a violation of
Article 5 para. 4 of the Convention in that the applicant was not
present at the proceedings before the Linz Court of Appeal concerning
the prolongation of his detention on remand and his requests to be
released from detention on remand.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
__________________________________________________________________
12 October 1985 Introduction of the application
10 December 1985 Registration of the application
Examination of admissibility
7 July 1987 Rapporteur's request for information
from the Government
21 September 1987 Government's information
12 October 1987 Applicant's comments in reply
9 March 1988 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
31 May 1988 Government's observations
18 July 1988 Applicant's observations in reply
15 December 1988 Commission's decision to invite the Government
to submit further observations and to invite
the parties to a hearing on the admissibility
and merits of the application concerning
issues under Article 5 paras. 3 and 4 of the
Convention
10 February 1989 Government's further observations
13 March 1989 Applicant's further observations in reply
8 May 1989 Hearing and Commission's decision to declare
the application partly admissible
Examination of the merits
10 July 1989 Government's supplementary observations
26 July 1989 Applicant's supplementary observtions
7 October 1989 and Commission's consideration of the state
10 February 1990 of the proceedings
7 June 1990 Commission's deliberations on the merits
and final vote
3 July 1990 Commission's adoption of the Report
Full & Egal Universal Law Academy