Lexploria

Application No. 11968/86

Helmut BÖHLER

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 14 December 1988)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-12). ...................................... 1

A. The application

(paras. 2-4). ............................... 1

B. The proceedings

(paras. 5-7). ............................... 1

C. The present Report

(paras. 8-12). .............................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 13-33). ..................................... 3

A. The particular circumstances of the case

(paras. 13-27)............................... 3

B. Relevant domestic law

(paras. 28-33)............................... 5

III. SUBMISSIONS OF THE PARTIES

(paras. 34-60)....................................... 8

A. The applicant

(paras. 34-48)............................... 8

a. Article 5 para. 3 of the Convention

(paras. 34-40) .......................... 8

b. Article 6 para. 1 of the Convention

(paras. 41-47) .......................... 9

B. The Government

(paras. 48-60) .............................. 11

a. Article 5 para. 3 of the Convention

(paras. 48-51) .......................... 11

b. Article 6 para. 1 of the Convention

(paras. 52-60) .......................... 11

Page

IV. OPINION OF THE COMMISSION

(paras. 61-85) ...................................... 14

A. Points at issue

(para. 61) .................................. 14

B. Article 5 para. 3 of the Convention

(paras. 62-71) .............................. 14

a. Period to be considered

(paras. 63-67) .......................... 14

b. Reasonableness of the length of the

applicant's detention

(paras. 68-70) .......................... 15

c. Conclusion

(para. 71) .............................. 15

C. Article 6 para. 1 of the Convention

(paras. 72-84) .............................. 15

a. Period to be considered

(para. 73-74) ........................... 15

b. Reasonableness of the length of the

proceedings

(paras. 75-83) .......................... 16

c. Conclusion

(para. 84) .............................. 17

D. Recapitulation

(para. 85) .................................. 17

DISSENTING OPINION OF MR. S. TRECHSEL, JOINED BY

MESSRS. J.C. SOYER, H.G. SCHERMERS AND J. CAMPINOS

AND MRS G.H. THUNE ......................................... 18

APPENDIX I: HISTORY OF THE PROCEEDINGS .................... 21

APPENDIX II: DECISION ON THE ADMISSIBILITY ................. 22

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 1940, is an Austrian citizen who

before his detention in the present case lived in Innsbruck where he

worked as an insurance salesman. Before the Commission, he is

represented by Dr. G. Stanonik, a lawyer practising in Salzburg.

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 criminal proceedings instituted

against the applicant on 1 July 1980. On 16 November 1982 the

Salzburg Regional Court (Landesgericht) convicted the applicant of

fraud and of violations of the foreign exchange laws and sentenced him

to eight years' imprisonment. The written judgment was served on the

applicant on 28 August 1985. The applicant then filed a plea of

nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). On

19 December 1985 the Supreme Court (Oberster Gerichtshof) reduced the

applicant's sentence to six years' imprisonment.

4. The applicant complains under Article 5 para. 3 of the

Convention that he was detained on remand for five and a half years

from 1 July 1980 until 19 December 1985. Thus he was not tried within

a reasonable time or released pending trial within the meaning of that

provision. The applicant also complains under Article 6 para. 1 of

the Convention of the length of the court proceedings, in particular

that he only received the written grounds of the judgment 33 months

after it had been pronounced.

B. The proceedings&_

5. The application was introduced on 10 January 1986 and

registered on 29 January 1986.

On 8 July 1986 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to present

before 17 October 1986 their observations in writing on the

admissibility and merits of the application. The Government's

observations of 13 October 1986 were received on 15 October 1986.

The applicant's undated reply was received on 1 December 1986.

6. On 7 May 1987 the Commission declared the application

admissible.

7. After declaring the application admissible, the Commission,

acting in accordance with Article 28 (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 12 May 1987 and 27 April 1988. 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&S

8. 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. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

9. The text of this Report was adopted on 14 December 1988 and

is now transmitted to the Committee of Ministers of the Council of

Europe in accordance with Article 31 para. 2 of the Convention.

10. 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.

11. 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.

12. 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&_

13. On 1 July 1980 the applicant was arrested on suspicion of

fraud and remanded in custody. Criminal proceedings were instituted

against the applicant and in 1982 he was tried before the Salzburg

Regional Court. The case file consisted of 13 volumes with more than

100 pages of expert opinions. In addition, there were 30 volumes

consisting of documentary evidence. The trial (Hauptverhandlung)

lasted five days, during which 30 witnesses were heard. The minutes

of the trial consisted of 357 pages.

14. On 16 November 1982, after a hearing at which the applicant

was present, the Court orally pronounced its judgment and mentioned

the relevant reasons therefor. In the judgment it convicted the

applicant of various instances of fraud (Betrug), aggravated fraud

(schwerer Betrug), and professional fraud (gewerbsmäßiger Betrug) in

amounts varying between 10,000 and 1,000,000 AS as well as of

violations of the foreign exchange laws. The Court sentenced the

applicant to eight years' imprisonment, making allowance for the

period of detention on remand since 1 July 1980.

15. The written judgment was served on the applicant on

28 August 1985.

With regard to the period after judgment was pronounced

publicly on 16 November 1982 and the preparation of the written

judgment, the Government have submitted a schedule of the workload

of M, the judge responsible for the preparation of the written

judgment, and of his Court Department No. 20.

16. It appears from the schedule that, from 1 January 1982 until

31 July 1985, the Court Department No. 20 was overburdened in that the

number of finished cases per year never reached the total number of

new cases of the same year and of the unfinished business of the

preceding year.

17. Thus Judge M was responsible, from 29 November until

29 December 1982, alone or together with associate judges or lay

judges, for 33 hearings, for instance on 22 December 1982 for nine

hearings. Similarly, in 1983 he was responsible for 124 hearings, in

1984 for 277 hearings and until 22 July 1985 for 151 hearings. In

1984, Judge M had to bring to an end two jury trials and, from

1 January to 31 July 1985, one jury trial.

18. The Government have also indicated the steps taken by the

competent supervisory authority in order to obtain the written

judgment. Thus, as from the beginning of 1983, the supervisory

administrative authorities were constantly taking measures in respect

of Judge M in order to enable him to complete the written grounds of

the judgment of the present case. Disciplinary proceedings were

instituted against him, and on 4 March 1984 the Linz Court of Appeal

(Oberlandes gericht) as the disciplinary tribunal decided to impose on

Judge M the administrative penalty of an admonition (Ermahnung) on

account of the delays which had occurred with regard to the

applicant's written judgment.

19. When thereafter Judge M did not prepare the written judgment,

he justified the delay with his workload as well as with personal

problems, namely his father's death and heart surgery undertaken on

his son. On 4 June 1985, the supervisory panel (Personalsenat) of

the Salzburg Regional Court decided not to allocate new cases to the

judge in order to give him an opportunity to catch up on the backlog

in judgments. On 5 June 1985 the applicant filed a request for the

written judgment. New disciplinary proceedings were eventually

instituted against the judge. On 1 July 1986 the Linz Court of Appeal

decided that he was to be barred from promotion for two years. The

judge appealed against this decision.

20. While being detained on remand, the applicant filed an

application for release on 19 May 1985, which was withdrawn by him

on 4 June 1985 as he was unable to provide sufficient bail. On 5 June

1985 he again applied for his release from detention on remand whereby

he offered bail of 250,000.- AS. He submitted that his detention was

not justified in view of the fact that his wife and their child lived

in Salzburg and as his education would enable him to find work. His

application was granted by the Review Chamber (Ratskammer) at the

Salzburg Regional Court on 17 July 1985, which ordered his release on

bail.

21. The Review Chamber recalled that the judgment of the Salzburg

Regional Court had not yet acquired legal force. With reference to

Section 180 of the Code of Criminal Procedure (Strafprozessordnung) it

found, on the one hand, that the danger of repetition as a ground for

detention on remand had been sufficiently reduced by the duration of

the applicant's detention, now lasting five years. On the other hand,

danger of absconding had not become irrelevant. Rather, as the

applicant himself admitted, he had deposited bars of silver to the

amount of approximately 10,000,000.- AS in a Zurich bank and he

himself had been able during his detention on remand to organise the

sale of 60 kilos of that silver.

The Review Chamber concluded that the applicant had

connections with persons in other countries, thus giving rise to the

suspicion that he would abscond to another country in view of the

sentence of eight years imposed on him. Nevertheless, this ground of

a danger of absconding could be reduced by means of granting bail as

the more lenient measure. In view of the consequences of the offences

and in order to be effective, the Review Chamber set the amount of

bail at 2,000,000.- AS.

22. The decision of the Review Chamber was confirmed by the Linz

Court of Appeal on 14 August 1985. However, as the applicant was

unable to furnish the bail of 2 million AS ordered by the Review

Chamber, he remained in custody.

23. The written judgment of the Salzburg Regional Court was served

upon the applicant on 28 August 1985.

24. The judgment, which numbered 126 pages, mentioned in

particular the 25 persons, residing in different towns in Austria,

in respect of whom the applicant had fraudulently obtained on

altogether 42 occasions a total of approximately 10 million AS.

A substantial part of these monies had been transferred to the Federal

Republic of Germany and Switzerland. Thereby, the applicant had

violated the Austrian foreign exchange laws on seven occasions to the

amount of approximately 8,5 million AS. The Court acquitted the

applicant of three charges of fraud.

25. According to the judgment, the applicant and his wife founded

or acquired in 1979 various companies in Austria, Liechtenstein and

Switzerland. The applicant then acted as a financial adviser to

various persons to whom he promised profitable investments bearing an

interest of 17 % to 35 %. Between autumn 1979 and the end of 1980

the applicant extricated from them considerable sums of money, which

he used to finance his company and a business style which demonstrated

that the companies were sound. The Court's judgment then analysed in

detail the single offences committed by the applicant.

26. After the judgment had been pronounced the applicant filed a

plea of nullity with the Supreme Court (Oberster Gerichtshof) in which

he complained that during the proceedings his objections to an expert

and his various applications for the taking of evidence had not been

considered. He also filed an appeal (Berufung) with the Supreme Court

in which he complained about the sentence.

27. On 14 November 1985 the Supreme Court dismissed the

applicant's plea of nullity as being unfounded. On 19 December 1985

the Supreme Court granted his appeal to the extent that it reduced the

applicant's sentence from eight to six years.

B. Relevant domestic law&S

28. The offences of aggravated fraud - Section 147 para. 3 of the

Austrian Penal Code (Strafgesetzbuch) - and of professional fraud

involving aggravated fraud (Section 148) are punishable by

imprisonment lasting between one and ten years.

29. Detention on remand is ordered under Section 180 paras. 1

and 2 of the Austrian Code of Criminal Procedure (Strafprozessordnung)

if the accused is seriously suspected of having committed a criminal

offence and if there is a danger of absconding, collusion, or

repetition. 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 not punishable by more than five years' imprisonment.

30. According to Section 193 of the Code of Criminal Procedure, in

the version in force until 1983, detention on remand could be extended

under certain circumstances to a maximum of two years if the accused

was suspected of having committed an offence threatened with

imprisonment of at least ten years. However, since 1983 para. 5 of

Section 193 provides that this time-limit no longer applies once the

trial has commenced, as long as there are other grounds of detention

than only the danger of collusion.

31. Section 397 of the Code of Criminal Procedure states, insofar

as relevant to the present case:

"Jedes Strafurteil ist ungesäumt in Vollzug zu setzen, sobald

feststeht, daß der Vollstreckung kein gesetzliches Hindernis und

insbesondere kein rechtzeitig und von einem hierzu Berechtigten

ergriffenes Rechtsmittel entgegensteht, dem das Gesetz

aufschiebende Wirkung beimißt (§ 284 Abs. 3, § 294 Abs. 1 und

§ 344)."

"Every judgment must immediately be executed as soon as it is

certain that there is no legal obstacle to execution,

particularly no remedy which has been duly filed by a person

entitled thereto and in respect of which the law provides for a

suspensive effect (Sections 284 para. 3, 294 para. 1, and 344)."

The remedies employed by the applicant had such suspensive

effect, his plea of nullity according to Section 284 para. 3 and his

appeal according to Section 294 para. 1. According to Section 284

para. 1 these remedies must be announced (anzumelden) within three

days after the oral pronouncement of the judgment, whereupon their

suspensive effect commences. Thus, under Austrian law the applicant

remained in detention on remand while his remedies were pending before

the Supreme Court.

32. Sections 257 to 270 of the Code of Criminal Procedure govern

the judgment of the first instance Court, its pronouncement and the

preparations of the written grounds. Section 270 states, insofar as

relevant for the present case:

"(1) Jedes Urteil muss binnen vierzehn Tagen vom Tage der

Verkündung schriftlich ausgefertigt und vom Vorsitzenden

sowie vom Schriftführer unterschrieben werden.

(2) Die Urteilsausfertigung muss enthalten:

...

5. die Entscheidungsgründe. In diesen muss in gedrängter

Darstellung, aber mit voller Bestimmtheit angegeben sein,

welche Tatsachen und aus welchen Gründen der Gerichtshof sie

als erwiesen oder als nicht erwiesen angenommen hat, von

welchen Erwägungen er bei der Entscheidung der Rechtsfragen

und bei Beseitigung der vorgebrachten Einwendungen geleitet

wurde und, im Fall einer Verurteilung, welche Erschwerungs-

und Milderungsumstände er gefunden hat."

"(1) The written reasons for every judgment shall be

prepared within fourteen days from the date of the

pronouncement and shall be signed by the president as well

as the reporter.

(2) The written reasons of the judgment shall contain:

...

5. the grounds for the decision. Therein shall be

mentioned in a compressed presentation, but with full

precision, which facts are regarded as established, or not

established, by the Court, and the reasons therefor; the

considerations which guided the Court when deciding the

legal issues and when rejecting the objections made; and,

in the case of a conviction, which aggravating or mitigating

circumstances the Court has found."

As regards in particular the time-limit stated in Section 270

para. 1, non-observance of that time-limit does not according to

Austrian doctrine lead to the nullity of the judgment (see

E. Foregger/E. Serini, Die österreichische Strafprozessordnung,

Vienna 1982, p. 318 N. II).

33. In respect of the remedies available against a judgment,

Section 285 para. 1 states, insofar as it is relevant for the present

case:

"(1) Der Beschwerdeführer hat das Recht, binnen vierzehn

Tagen nach der Anmeldung der Nichtigkeitsbeschwerde, wenn

ihm eine Urteilsabschrift aber erst nach der Anmeldung des

Rechtsmittels zugestellt wurde, binnen vierzehn Tagen nach

der Zustellung eine Ausführung seiner Beschwerdegründe beim

Gericht in zweifacher Ausfertigung zu überreichen..."

"(1) The applicant has the right to submit with the Court

in duplicate the written reasons for his plea of nullity

within fourteen days after he has filed his plea of nullity

or, if the copy of the decision is served on him only after

the remedy was filed, within fourteen days after the decision

is served ..."

III. SUBMISSIONS OF THE PARTIES

A. The applicant&_

a. Article 5 para. 3 of the Convention

34. The applicant submits that despite his various applications

to be released he was not tried within a reasonable time or released from

detention pending trial within the meaning of Article 5 para. 3 of the

Convention. In particular, his detention on remand lasted from

1 July 1980 until 19 December 1985 when the judgment of the Regional

Court acquired legal force. The applicant contends that in this respect

Section 193 of the Code of Criminal Procedure is so general that it

contradicts the Convention. In particular, until 1983 Section 193

permitted detention on remand indefinitely after a person had formally

been indicted, and since 1983, it permits indefinite detention once the

trial has begun.

35. Article 5 para. 3 of the Convention is not intended, in

combination with Article 5 para. 1 (c), to guarantee that detention on

remand shall be set off against a sentence of imprisonment. Its

object is rather to limit restrictions on a person's freedom by

detention on remand before being sentenced to imprisonment as provided

for by domestic law, and, in any event, to ensure that this detention

without a final sentence is not longer than necessary. The concept of

a "conviction" can accordingly only be understood within the meaning

of this provision as a final, enforceable decision which finally

determines the charge. Article 5 para. 3 is therefore in no way

concerned with whether the applicant will possibly at a later stage

have to serve a sentence which is just as long or perhaps longer.

This provision is also not concerned with whether the applicant

suffered "damage". Its object is rather to ensure that when the

matter is not determined within a reasonable time the applicant has a

right to be released from detention. Of course, he may later receive

a heavier sentence which he must duly serve.

36. Only on the application of 17 July 1985 did the Review Chamber

decide that the applicant should be released on bail. This release

was ordered more than two and a half years after the first instance

judgment had been pronounced. This period of time exceeded a

reasonable time. If it is argued that two years of detention on

remand were perfectly normal in the instant case, this period had

already been served a long time ago when judgment was given at first

instance. The applicant had to undergo a further two and a half years'

detention on remand before being released on bail after judgment was

given and in spite of the fact that the written judgment was not

prepared. That delay was unreasonable.

37. Under Article 5 para. 3 of the Convention release may be

conditioned by guarantees to appear for trial. The decision of the

Review Chamber of 17 July 1985 discloses that bail was required on

account of the danger that the accused might abscond. Appearance in

court is no longer necessary at this stage of the proceedings. The

accused is free to decide whether he wants to appear in the

proceedings concerning an appeal and a plea of nullity before the

Supreme Court. Accordingly, bail can only apply to the execution of

the sentence. But this is not covered by Article 5 para. 3. The

latter also does not require an application for release. This right

must be granted by the State as a matter of course.

38. The applicant submits that the length of his detention

prevented him from applying in accordance with Section 46 of the

Austrian Criminal Code for a reduction of his prison sentence on

account of good conduct. Thus he could only file his application after

five and a half years of his sentence of altogether six years had

elapsed. In view of the fact that the original sentence of eight

years could have been reduced by half, he in fact lost one and a half

years of his life on account of the unjustifiable delay caused by the

Regional Court.

39. Doctrine and practice unanimously hold that Section 46, which

provides for the conditional release from imprisonment, confers a

right on the offender. It is also no longer retrospectively possible

to reconstruct what the decision on conditional release would have

been, if it had been made earlier.

40. The applicant finds it incompatible with the Convention that,

under Austrian law, detention on remand may be continued without any

limit when the trial has opened. It is not enough to argue that

Article 5 para. 3 of the Convention only provides protection until

judgment is given at first instance. Domestic legislation should

provide the necessary guarantees, for instance that the accused is

released, if the written judgment is not prepared within the period of

two weeks specified in Section 270 of the Code of Criminal Procedure.

This would also ensure that the judge prepares the written grounds

within a reasonable time.

b. Article 6 para. 1 of the Convention

41. The applicant submits that the court proceedings in which he

was involved were not concluded within a reasonable time within the

meaning of Article 6 para. 1 of the Convention. In particular, he did

not, until 28 August 1985, receive the written grounds of the judgment

of 16 November 1982, which were essential for the appeal proceedings.

Yet, if the Regional Court had acted promptly he could have filed his

memorial stating the grounds of his plea of nullity much earlier. His

appeal to the Supreme Court eventually succeeded.

42. The applicant further refers to the rationale of Section 270

of the Code of Criminal Procedure (para. 32 above). When the Court

reaches its decision after deliberation, the judgment represents the

opinion of the court. The Court must by then have considered all the

circumstances coming to light in the course of the proceedings in the

case. Further delay can therefore not be justified by the complexity

of the case.

43. The complexity of the case might justify a long trial and

consequently a longer period of detention on remand up to the end of

the trial. In the present case, on 16 November 1982, when the judgment

was given, the Court must therefore have been fully aware of the

grounds. In fact the judge concerned had nothing more to examine. He

must merely set down the grounds arrived at in the deliberations of

the court. Possibly he may be granted a few days in order to choose

suitable wording or include cross-references in the text. But he

cannot be given more time than what he requires for correcting the

draft. Any other solution would mean that the judge concerned

produced the grounds of the judgment and that the other judges did not

really participate in reaching the decision of the court.

44. The applicant recalls that the period to be taken into account

in assessing whether the length of the proceedings was reasonable

within the meaning of Article 6 para. 1 runs up to the time when the

judgment becomes final. In the present case the time required was no

longer reasonable, particularly since an appeal to the Supreme Court

could only be filed after the written judgment had been prepared.

45. As regards the case-load before Court Department No. 20, the

number of new cases was in no way unusual or higher than in other

departments. Other judges have even more complicated cases to deal

with, in which the preparation of the written grounds did not take so

long.

46. The measures taken by the authorities in the present case were

inadequate and irrelevant. Only in 1984 did the authorities find it

necessary to impose a mild disciplinary sanction on Judge M for

failing for almost two years to prepare the written judgment. In

1985, no similar measures were taken. In 1986, a disciplinary

sanction was again pronounced against Judge M which was irrelevant for

the present case.

47. Austrian law does not provide for legislative measures as to

how a judge should be forced to perform his duties. However, the

Government had at its disposal much more effective measures to remedy

the situation. For instance, Section 104 of the Judicial Service Act

(Richterdienstgesetz) provides for the disciplinary sanctions of

reprimand, cancelling increments, reduction of salary, transfer to

another post without transfer allowances, retirement on reduced

pension and dismissal. Nevertheless, the Government only imposed the

two mildest disciplinary sanctions, and only the sanction of a

reprimand was imposed before the written grounds were prepared. Under

Section 51 of the Judicial Service Act, the staff senate of the

competent court must prepare an official report every year on each

judge's work. In the reports on Judge M there is no mention between

1982 and 1985 that his work was unsatisfactory and that he was not

even able to produce the written judgment which had already been

pronounced. In fact, the intake of new cases should have been

stopped. It would have been possible to transfer Judge M in the years

1983-1985 to another division and to employ him as an investigating

judge, a function which involves much less work.

B. The respondent Government&S

a. Article 5 para. 3 of the Convention

48. The Government point out that the applicant only once applied

for release from detention on remand which was eventually allowed.

Thus, after providing bail of 2 million AS, the applicant would have

been released until the sentence became final. The authorities cannot

be blamed for the fact that the applicant was unable to provide bail

and therefore had to remain in prison.

49. Article 5 para. 3 of the Convention permits the interpretation

that the period to be assessed under this provision ends with the

pronouncement of the judgment of the court of first instance. The

need to have a written judgment cannot be inferred from the law.

Moreover, according to the case-law of the European Court of Human

Rights, the period relevant under Article 5 para. 3, which in the

applicant's case commenced on 1 July 1980, ends with the release from

pre-trial detention or the pronouncement of the judgment of the court

of first instance, i.e. in the present case on 16 November 1982.

This period cannot be considered unreasonably long in view of the

complexity of the case, the necessity to question numerous persons

within the framework of mutual legal assistance, the extent of the

punishment involved, the strong suspicion of a criminal act and the

existing reasons for arrest. Up to the pronouncement of the judgment,

the domestic judicial authorities dealt with the matter expeditiously.

Therefore, the Convention has also not been violated in this respect.

50. As regards Section 193 of the Code of Criminal Procedure,

the Convention contains no requirement concerning an absolute

time-limit for detention on remand. A statutory regulation which

nevertheless makes provision for such a time-limit cannot therefore be

in contravention of Article 5 para. 3 of the Convention, as it makes

the end of this time-limit dependent on a certain stage of the

proceedings, i.e. after the trial has begun.

51. Under Section 193 para. 2 of the Code of Criminal Procedure,

the reasonableness of the length of the detention on remand must also

be checked particularly under the aspect of the principle of

proportionality namely as to whether or not the duration is reasonable

in relation to the expected sentence. In the case of obvious

unreasonableness, detention must be terminated. Before the judgment

is given, the reasonableness and proportionality of detention on

remand must be viewed in particular in the light of the penalty in

question, the severity of the offence and the personal circumstances

of the accused, namely his criminal record. The assessment of the

proportionality of detention on remand becomes more concrete once the

court of first instance has given its judgment. In the light of the

above, it emerges that the applicant's detention on remand was not

unreasonably long.

b. Article 6 para. 1 of the Convention

52. According to the constant case-law of the Convention organs,

the complexity of the case as well as the conduct of the applicant and

of the competent public authorities must be examined in order to

assess the reasonableness of the length of the proceedings.

53. The present criminal case with its economic implications and

connections with other countries was based on complex facts.

Reference may be made to the great number of files, days of hearings

and witnesses heard. Moreover, at the time of pronouncement of

judgment, it was not necessary for the judge to have prepared a draft

version of the grounds. When preparing the written judgment he must

again study all files containing expert opinions, documentary evidence

and the testimony of witnesses so as not to overlook any detail and to

avoid any contradictions. Finally, the judge must be able to submit a

written judgment which will bear review by the appellate court.

54. As to the applicant's conduct, it must be noted that he urged

preparation of the written judgment only once, namely on 5 June 1985.

He also did not file a hierarchical appeal (Aufsichtsbeschwerde) under

Section 15 of the Code of Criminal Procedure.

55. As regards the conduct of the competent authorities, the

Government refer to the case-law of the Convention organs according to

which delays may be justified if the courts were not able to cope

with the sharply increasing number of cases (Eur. Court H.R., Guincho

judgment of 10 July 1984, Series A No. 81, p. 16 para. 38). Such

delays, however, would have to be kept as short as possible by the

State. Moreover, delays cannot entail responsibility of the State if

the latter takes immediate and appropriate remedial action (cf. Eur.

Court H.R., judgment of Zimmermann and Steiner of 13 July 1983,

Series A No. 66, p. 12 para. 29). The delay in the present case

resulted from the complexity of the case and the competent authorities

took all possible measures to expedite the preparation of the written

judgment, i.e. exemption of the judge concerned from new business;

monitoring by the supervisory authority; disciplinary measures.

56. Nevertheless, if one considers the constitutionally ensured

principle of the independence of judges, guaranteed by the rules of

irremovability and freedom from transfer, as well as the resulting

principle of the fixed allocation of work, delays may occur in the

interest of the certainty of law as long as, in exceptional cases,

judges who do not satisfy the requirements which they are expected

to meet may be transferred within the framework of disciplinary

proceedings. Another judge can then be appointed as head of the

department.

57. The Government do not accept that a violation of Section 270

para. 1 of the Code of Criminal Procedure implies a violation of

Article 6 para. 1 of the Convention. The Commission has stated that a

violation of Section 270 para. 1 does not breach Article 6 para. 1 of

the Convention if the written reasons for the judgment have not been

available eight months after its pronouncement (See No. 4459/79,

Dec. 3.4.71, Collection 38 p. 44).

58. The issue whether or not the delays were to the detriment

of the applicant must be judged by taking all circumstances into

consideration. Thus, at the hearing on 16 November 1982 the judgment

was pronounced publicly and the pertinent reasons were mentioned. The

fact that the judgment, the contents of which were already known to

the applicant, was not put into written form had the sole consequence

that the Supreme Court was not able immediately to decide on the

appeals lodged by the applicant. Nevertheless, the applicant would in

any case have had to serve the sentence. Even if the first judge had

issued the written judgment immediately, the Supreme Court would still

not have reduced the sentence to less than six years. However, the

applicant did not have to serve more than six years. The delay in the

preparation of the written reasons was not therefore detrimental to

the applicant.

59. Different criteria must be used for judging the reasonableness

of the length of proceedings before and after pronouncement of the

judgment. Before the judgment is pronounced, the accused is under the

strain of not knowing whether he will be found guilty and if so what

sentence will be imposed on him. The right to a speedy conclusion of

the proceedings under Article 6 para. 1 of the Convention serves

especially to keep this strain on the accused within justifiable

limits. While in the present case, the oral pronouncement of the

judgment did not completely eliminate this uncertainty, it was

considerably reduced. The two and a half years required for the

preparation of the written reasons of the judgment did not put as

great a strain on the applicant as a similarly long delay in the

preparatory proceedings would have posed for an accused who was

detained pending trial.

60. If the applicant submits that, after having served two-thirds

of his sentence, he was not released on probation because no written

reasons had been prepared for the judgment, he overlooks that a

criminal has no right to claim parole. His release on probation would

not have been granted if the first judge had produced the written

judgment immediately. In the present case, the applicant filed a

request for release on probation on 28 March 1986 which was rejected

by two courts. The latter held that the purpose of the punishment is

to deter the offender from further wrongdoing.

IV. OPINION OF THE COMMISSION

A. Points at issue&S

61. The points at issue are

a) whether there has been a violation of Article 5 para. 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 6 para. 1 of the

Convention, in that the criminal proceedings instituted against the

applicant exceeded a reasonable time.

B. Article 5 para. 3 of the Convention&S

62. Article 5 para. 3, insofar as relevant, provides as follows:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (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. Period to be considered

63. The applicant was arrested on suspicion of fraud and remanded

in custody on 1 July 1980. On this date the period commenced which is

to be considered under Article 5 para. 3 of the Convention.

64. As regards the end of the period to be considered under this

provision, the applicant submits that his detention on remand

terminated on 19 December 1985 when the Supreme Court gave its

judgment on the appeal. The Government contend that the period to be

considered ended with the pronouncement of the judgment of the court

of first instance on 16 November 1982.

65. The Commission recalls the judgment of the European Court of

Human Rights in the Wemhoff case according to which the relevant

period under Article 5 para. 3 ends with the day on which the charge

is determined by a court of first instance. Thereafter, the person is

in a position provided for by Article 5 para. 1 (a) of the Convention,

which authorises deprivation of liberty "after conviction" (judgment

of 27 June 1968, Series A No. 7, p. 23f para. 9).

66. The Commission notes that important differences exist among

the Convention States on the question whether a person convicted in

first instance has started serving the sentence while an appeal is

pending. The Commission considers that the important guarantees of

Article 5 para. 3 of the Convention cannot be made dependent on the

national situation. Rather, the Commission notes that Article 5

para. 1 (a) of the Convention refers to the detention "after

conviction by a competent court". The Commission therefore is of the

opinion that, even where according to national law a person convicted

in first instance continues to be detained on remand while an appeal

is pending, Article 5 para. 1 (a) of the Convention creates the

justification for such detention under the Convention.

67. As a result, the applicant's detention on remand ended on

16 November 1982 when the charges brought against him were determined

by a first instance court.

The entire period of detention on remand therefore lasted from

1 July 1980 until 16 November 1982, i.e. two years, four months and

fifteen days.

b. Reasonableness of the length of the applicant's detention

68. The applicant has not complained specifically about the period

of his detention on remand between 1 July 1980 and 16 November 1982.

The Government contend that the length of the applicant's

detention on remand cannot be considered unreasonable in view of the

complexity of the case, the necessity to question numerous persons

within the framework of international legal assistance, the punishment

imposed, the strong suspicion of a criminal offence and the existing

reasons of arrest.

69. The Commission notes that the case concerned complex offences,

namely a number of instances of fraud perpetrated on various occasions

and involving many witnesses residing in Austria and abroad. The

case-file eventually consisted of 43 volumes, and at the trial thirty

witnesses were heard. Moreover, there is no indication that the

authorities failed to display the diligence required by the Convention

in the case of a detained person.

70. The Commission is therefore satisfied that this period of

the applicant's detention on remand was necessary to pursue the

investigations in his case. It concludes that the applicant's

detention on remand, did not exceed a reasonable time within the

meaning of Article 5 para. 3 of the Convention.

c. Conclusion

71. The Commission concludes, by 11 votes to 5, that there has

been no violation of Article 5 para. 3 of the Convention.

C. Article 6 para. 1 of the Convention&S

72. Article 6 para. 1 of the Convention, insofar as it is relevant

for the present case, provides as follows:

"In the determination ... of any criminal charge against him,

every one is entitled to a ... hearing within a reasonable

time."

a. Period to be considered

73. The period to be considered under Article 6 para. 1 of the

Convention lasted from 1 July 1980, when criminal proceedings were

instituted against the applicant, until 19 December 1985, when the

Supreme Court partly granted the applicant's appeal, i.e. in all five

years, five months and 18 days.

74. While it is always the entire span of the proceedings which it

must examine, the Commission observes that the main question of the

present case concerns the time required by the competent judge at the

Salzburg Regional Court for the preparation of the written judgment.

This judgment was served on the applicant on 28 August 1985, i.e. two

years, nine months and 11 days, or approximately 33 months after the

judgment had been pronounced on 16 November 1982.

b. Reasonableness of the length of the proceedings

75. The applicant submits that he was kept waiting for more than

two and a half years for the preparation of the written judgment which

had already been pronounced orally, although according to Section 270

para. 1 of the Austrian Code of Criminal Procedure, the written

judgment should have been prepared within fourteen days after the

pronouncement.

The Government submit that Article 6 para. 1 calls for

different criteria when establishing the reasonableness of the length

of criminal proceedings once the judgment of a court of first instance

has been pronounced, since the delay caused by the preparation of the

written reasons of the judgment no longer puts so great a strain on

the applicant.

76. The Commission recalls that the reasonableness of the length

of criminal proceedings has to be assessed in each case according to

its particular circumstances and having regard in particular to the

complexity of the case as well as to the conduct of the applicant and

the judicial authorities (see Eur. Court H.R., Corigliano judgment of

10 December 1982, Series A No. 57, p. 14 para. 37).

Insofar as the applicant refers to the time-limit stated in

Section 270 para. 1 of the Code of Criminal Procedure, the Commission

considers that its assessment of the reasonableness of the length of

the proceedings cannot be made dependent on time-limits stipulated

under domestic law.

77. The Commission has already found that the charges brought

against the applicant raised complex problems for the prosecuting

and investigating authorities as well as for the trial court (see

para. 69). Nevertheless, once the judgment of the Regional Court had

been pronounced on 16 November 1982, the judge called upon to prepare

the written judgment was no longer required to undertake further

investigations of the case. While the task of producing the written

judgment may still have been a laborious one, it cannot, in the

Commission's opinion, be regarded as so complex as to justify under

Article 6 para. 1 of the Convention, the period of 33 months.

78. The delay in the preparation of the written judgment cannot be

attributed to the applicant. Under Austrian law, the applicant had no

means of expediting the proceedings (see No. 4459/70, Dec. 3.4.71,

Collection 38 p. 44).

79. As regards the conduct of the authorities, the Commission

observes that, after the Salzburg Regional Court had pronounced its

judgment on 16 November 1982, Judge M was responsible for a considerable

number of other cases, i.e. in 1983 for 124 hearings, in 1984 for 277

hearings, and in the period from 1 January until 22 July 1985 for 151

hearings.

Thus, rather than relieving the judge of other tasks in order

to hasten the preparation of the written judgment, the authorities in

fact assigned substantial further duties to Judge M.

80. The Commission notes further that the disciplinary proceedings

instituted against Judge M resulted in a disciplinary admonition on

4 March 1984, i.e. 15 months after the judgment had been given, and

that after the imposition of this disciplinary admonishment another

17 months went by before the written judgment was produced.

81. The Commission is not required to establish in detail whether

an alleged violation is imputable to any individual authority. Under

the terms of the Convention, the High Contracting Parties are

responsible for all their organs. Moreover, the fundamental purpose of

the Convention is to provide for the protection of the rights of

individuals. The Convention organs are thus required under Article 19

of the Convention to guarantee protection of these rights and not to

establish whether any specific national authority must be considered

"guilty" (see Zimmermann and Steiner v. Switzerland, Comm. Report

9.3.82, Eur. Court H.R., Series B No. 54, p. 20 para. 46; Eur. Court

H.R., Foti and others judgment of 10 December 1982, Series A No. 56,

p. 21 para. 63).

82. In the present case the Government have not, in the

Commission's opinion, demonstrated that the authorities acted with the

necessary diligence and expedition, for instance when organising the

workload of the judge concerned, or in speedily undertaking efficient

supervisory measures.

83. Consequently, the Commission considers that, as a result of

the delay for which the authorities must be held responsible, the

applicant did not get a hearing within a reasonable time as required

by Article 6 para. 1 of the Convention.

c. Conclusion

84. The Commission concludes by a unanimous vote that there has

been a violation of Article 6 para. 1 of the Convention in that the

criminal proceedings instituted against the applicant exceeded a

reasonable time.

D. Recapitulation&S

85. The Commission concludes, by 11 votes to 5, that there has

been no violation of Article 5 para. 3 of the Convention (para. 71).

The Commission concludes by a unanimous vote that there has

been a violation of Article 6 para. 1 of the Convention in that the

criminal proceedings instituted against the applicant exceeded a

reasonable time (para. 84).

Secretary to the Commission President to the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

DISSENTING OPINION OF MR. S. TRECHSEL,

JOINED BY MESSRS. J.C. SOYER, H.G. SCHERMERS AND J. CAMPINOS

AND MRS G.H. THUNE

I share the Commission's opinion as to its conclusions under

Article 6 para. 1 of the Convention that the length of the criminal

proceedings in which the applicant was involved exceeded a reasonable

time.

To my great regret, however, I cannot follow the Commission's

view that the applicant's detention on remand did not exceed a

reasonable time.

In particular, I consider that Article 5 paras. 1 (c) and 3 of

the Convention were applicable in the present case.

The starting point is the judgment of the European Court of

Human Rights in the Wemhoff case according to which the relevant

period under Article 5 para. 3 ends with the day on which the charge

is determined by a court of first instance. Thereafter, the person is

in a position provided for by Article 5 para. 1 (a) of the Convention,

which authorises deprivation of liberty "after conviction" (judgment

of 27 June 1968, Series A No. 7, p. 23f para. 9), irrespective of

whether that "conviction" has become definitive or not and whether,

under national law, it could be executed or not.

The Court has not reexamined this issue since the Wemhoff

case, though it has occasionally been confronted with the scope of

Article 5 para. 1 (a). Thus it has held that

"The word 'after' in sub-paragraph (a) does not simply mean

that the detention must follow the 'conviction' in point of

time: in addition, the detention must result from, follow

and depend upon or occur by virtue of the 'conviction' ...

In short, there must be a sufficient causal connection

between the conviction and the deprivation of liberty at

issue ..." (Eur. Court H.R., Monnell and Morris judgment

of 2 March 1987, Series A No. 115, p. 17f para. 40;

van Droogenbroeck judgment of 24 June 1982 Series A No. 50,

p. 19 para. 35)

I consider that this case-law calls for a reconsideration of

the position of detention following conviction by a court of first

instance within the system of Article 5 para. 1 of the Convention. The

question arises in particular as to whether the applicant's detention

between 16 November 1982 and 19 December 1985 falls to be considered

under Article 5 para. 1 (a) of the Convention in that there was a

"sufficient causal connexion" between the judgment of the Regional

Court of 16 November 1982 and the applicant's subsequent deprivation

of liberty. In resolving this issue, I note that the Court, when

interpreting the terms "sufficient causal connection", has relied

substantially on the domestic law in question (see Monnell and Morris

judgment, ibid., p. 19 para. 46).

At this stage it is useful to consider the domestic legal

situation. According to Section 397 of the Austrian Code of Criminal

Procedure, a court judgment imposing a prison sentence is not executed

as long as the person in question has filed a remedy endowed with

suspensive effect and the appeal proceedings are still pending.

In the present case the Salzburg Regional Court sentenced the

applicant on 16 November 1982 to eight years' imprisonment. The

applicant thereupon filed a plea of nullity and an appeal. According

to Sections 284 para. 3 and 294 para. 1 of the Code of Criminal

Procedure, both these remedies are endowed with suspensive effect.

The applicant's conviction and sentence only acquired legal force

under Austrian law on 19 December 1985, on which date the applicant's

detention on remand was transformed into detention following

conviction.

Under Austrian law, the applicant's deprivation of liberty

after the judgment of the Regional Court of 16 November 1982 was

clearly not the result of the conviction because at that time the

latter had not acquired legal force. Rather, the proceedings

concerning the charges against him were then still pending, and the

applicant was still detained on remand for the purpose of appearing

before the court within the meaning of Article 5 para. 3 of the

Convention. In fact, during this period of time the applicant had not

been proved guilty according to law and was therefore to be presumed

innocent within the meaning of Article 6 para. 2 of the Convention.

It cannot therefore be said that the applicant's detention

between 16 November 1982 and 19 December 1985 "resulted from, followed

and depended upon or occurred by virtue of the 'conviction'" of the

Regional Court of 16 November 1982. On the other hand, there was a

"sufficient causal connection" between the judgment of the Supreme

Court dismissing the applicant's plea of nullity and reducing the

sentence on his appeal, and the concomitant sentence which he then

commenced to serve.

It is true that the Court held in its judgment in the Wemhoff

case that Article 5 para. 3 could not lend itself to such an

interpretation for the decisive reason that it "would exclude the

arrest at the hearing of convicted persons who appeared for trial

while still at liberty" (ibid., p. 23f. para. 9). However, I find

that Article 5 para. 1 (c) could equally be invoked when undertaking

such an arrest. In fact, under Austrian law, as long as the

conviction has not acquired legal force such an arrest at the trial

is possible if the grounds for detention on remand according to

Section 180 of the Code of Criminal Procedure are met.

I should also point out the following flaws when applying

Article 5 para. 1 (a) to detention following the first instance

judgment. Let us assume, first, that a person is being prosecuted and

the first instance court acquits him of the charges brought against

him. The Public Prosecutor then appeals against the acquittal. In

this case, under Austrian law - and the same applies for other legal

systems of the continental type - the defendant can be kept in

detention. Here we are clearly faced with detention on remand and

Article 5 para. 3 applies.

Let us assume, second, that a person detained on remand is

convicted in first instance and, upon appeal, acquitted of the charges

brought against him. Here, under domestic law he is a free man, and

on account of the presumption of innocence he will never have been

considered guilty. Yet, if the detention on remand after the first

instance conviction were to fall under Article 5 para. 1 (a), he must

actually be considered as having served a prison sentence!

A further problem arises, if we examine the situation created

by the "Wemhoff-approach" on the national level, taking Austria as an

example. Under the national law of criminal procedure, the applicant

was detained on remand up to 19 December 1985 and he could claim the

specific protection of Article 5 para. 3. Under the Convention,

however, the same detention would fall to be considered under

Article 5 para. 1 (a), and the specific protection of para. 3 would

be lacking. By giving precedence to Convention law over national

law, the authorities could put the applicant in a less favourable

position. This would run contrary at least to the spirit of

Article 60 of the Convention.

As a result I conclude that the applicant's detention on

remand between 16 November 1982 and 19 December 1985 falls to be

considered under Article 5 para. 1 (c) taken together with para. 3

rather than under para. 1 (a) of Article 5 of the Convention.

The entire period of detention on remand to be taken into

account under Article 5 para. 3 of the Convention thus lasted from

1 July 1980 until 19 December 1985, i.e. five years, five months and

18 days.

This period is not reasonable under Article 6 para. 1, and

even less so under Article 5 para. 3.

As a result I come to the conclusion that, in the present

case, there has also been a violation of Article 5 para. 3.

It is true, as the majority of my colleagues imply, that my

approach leads to a certain inequality between different legal

systems. However, such inequality is pre-existent and cannot be

blamed on a specific interpretation of the Convention. On the other

hand, I would find it unacceptable to create uniformity by using the

Convention to lower the level of protection for, e.g., defendants in

Austria.

&SAPPENDIX I&-

HISTORY OF PROCEEDINGS

Date Item

----------------------------------------------------------------------

10 January 1986 Introduction of the application

29 January 1986 Registration of the application

Examination of admissibility

8 July 1986 Commission's deliberations and decision to

invite the Government to submit observations

on the admissibility and merits of the

application

13 October 1986 Government's observations

1 December 1986 Applicant's observations in reply

7 May 1987 Commission's deliberations and decision to

declare the application partly admissible

Examination of the merits

10 October 1987, Commission's consideration of the state

5 March and of proceedings

7 May 1988

12 December 1988 Commission's deliberations on the merits

and final vote

14 December 1988 Adoption of the Report

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BÖHLER v. AUSTRIA

BÖHLER v. AUSTRIA

LEXI