FO URTH SECTION

CASE OF REINPRECHT v. AUSTRIA

( Application no. 67175/01 )

JUDGMENT

STRASBOURG

15 November 2005

FINAL

12/04/2006

In the case of Reinprecht v. Austria ,

The European Court of Human Rights ( Fourth Section) , sitting as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mrs E. Steiner , Mr J. Borrego Borrego , M r s L. Mijović, judges , and Mr M. O ' Boyle , Section Registrar ,

Having deliberated in private on 18 October 2005 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

2 . The applicant, who had been granted legal aid, was represented by Mrs C. Lanschü tzer, a lawyer practising in Graz . The Austrian Government (“the Government”) were represented by their Agent, Mr H. Winkler , Head of the International Law Department at the Federal Ministry of Foreign Affairs .

3 . The applicant complained, in particular, that the hearings regarding the prolongation of his pre-trial detention were not held in public.

5 . On 8 April 2003 the C hamber decided to communicate the applicant ' s complaint about the lack of public hearings regarding his pre-trial detention to the Government (Rule 54 § 2 (b)) and declared the remainder of the application inadmissible.

6 . By a decision of 12 October 2004 , the C hamber d eclared the application admissible as regards the communicated complaint.

7 . On 1 November 2004 the Court changed the compositio n of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section.

8 . The applicant and the Government each filed observations on the merits (Rule 59 § 1). Written submission s were also received from the Helsinki Foundation for Human Rights, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9 . The applicant was born in 1966 and lives in Graz .

10 . On 6 May 2000 the Graz Regional Criminal Court ( Landesgericht für Strafsachen ) ordered the applicant ' s pre-trial detention on suspicion of attempted sexual coercion ( geschlechtliche Nötigung ). The court based the suspicion against the applicant on the statement of the victim , who had identified the applicant in an identi ty parade. Further, it considered that, given the applicant ' s criminal record, there was a risk that he might commit an other offence similar to the one of which he was suspected ( Tatbegehungsgefahr ) .

11 . On 19 May 2000 the Graz Regional Court , after a hearing held in the presence of the p ublic p rosecutor, the applicant and his defence counsel, ordered that the applicant ' s pre-trial detention should continue. Referring to the testimony of the victim, it found that there was a reasonable suspicion against the applicant. Further, there was a risk that he might commit an other offence similar to the one of which he was suspected. The court stated that the applicant had nine previous convictions, mainly for property-related offences , but recently also for violent crimes. The court found that, in the light of the applicant ' s recidivism and his character, the prolongation of his pre-trial detention was reasonable. The applicant appealed against this decision.

12 . On 7 June 2000 the Graz Court of Appeal ( Oberlandesgericht ), sitting in private , dismissed the appeal and upheld the Regional Court ' s decision.

13 . On 19 July 2000 the Graz Regional Court, after holding a hearing in the presence of the parties, dismissed a n application for the applicant ' s release and ordered the continuation of his pre-trial detention. The applicant lodged an appeal against this decision.

14 . On 20 July 2000 the applicant lodged another application for release. He stressed that there were no reasons to maintain his pre-trial detention.

15 . On 26 July 2000 the p ublic p rosecutor ' s o ffice ( Staatsanwaltschaft ) filed the bill of indictment. The applicant appealed against it.

16 . On 2 August 2000 the Graz Regional Court , having held a hearing in the presence of the parties, ordered that the applicant ' s pre-trial detention should continue.

17 . On 7 August 2000 the applicant appealed against this decision. He submitted that there was no reasonable suspicion against him as the testimony of the only witness for the prosecution had been contradictory.

18 . On 17 August 2000 the Graz Court of Appeal, sitting in private , dismissed the applicant ' s appeal against the bill of indictment and the appeals against the Regional Court ' s decisions of 19 July 2000 and 2 August 2000 . It found that there was no doubt about the credibility of the witness and that there was therefore a reasonable suspicion against the applicant. Further, it upheld the Regional Court ' s repeated finding that reasons for detention on remand ( Haftgründe ) existed.

19 . On 18 September 2000 the applicant lodged a fundamental rights complaint ( Grundrechtsbeschwerde ) with the Supreme Court ( Oberster Gerichtshof ) against this decision. He submitted that there was no strong suspicion against him and that there were no reasons to maintain the detention on remand.

20 . On 16 October 2000 the Supreme Court, sitting in private , dismissed the complaint . It found that there was no doubt about the credibility of the witness and that reasons for the applicant ' s detention on remand subsisted.

21 . On 24 October 2000 the Regional Court , sitting with two professional and two lay judges, held a public hearing, convicted the applicant of attempted sexual coercion and sentenced him to two years ' imprisonment.

22 . On 8 March 2001 the Supreme Court rejected the applicant ' s plea of nullity.

23 . On 8 May 2001 the Court of Appeal dismissed an appeal by the applicant, but allowed one lodged by the public p rosecutor and increased the term of imprisonment to two years and six months.

II. RELEVANT DOMESTIC LAW

“1. Decisions ordering or continu ing detention on remand and decisions of the court of second instance continu ing detention on remand shall not be effective for longer than a certain period; the date of expiry shall be given in the decision. Prior to the expiry of the period of detention a hearing regarding the detention shall be held or the accused shall be released.

2. The period of detention shall,

(1) where detention on remand is ordered , be for fourteen days from the date on which the accused is arrested ;

(2) where the first decision is taken to continue detention on remand, be for one month from the date of the decision;

(3) where a further decision is taken to continu e detention on remand, be for two months from the date of the decision.

... ”

An accused who is held in pre-trial detention has to be assisted by counsel (Article 41 of the Code of Criminal Procedure ) . Copies of all documents relevant for assessing the suspicion or the reasons for the detention must be served on the prosecution and the defence free of charge before the first hearing (Article 45a of the Code of Criminal Procedure ) .

25 . The relevant part of Article 182 of the Code of Criminal Procedure provides:

“1. The investigating judge shall conduct the hearing regarding the detention; it is not open to the public. The accused, his counsel, the p ublic p rosecutor and the probation officer shall be informed of the date of the hearing.

2. The accused shall be brought before the judge at the hearing, unless this is impossible because of illness. He shall be represented by counsel.

...”

The c ourt of a ppeal, when dealing with appeals against decisions of the investigating judge concerning pre-trial detention, takes its decision sitting in private pursuant to Article 114 of the Code of Criminal Procedure.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

26 . The applicant complained that the hearings regarding the prolongation of his pre-trial detention were not public. The Court will first examine this complaint under Article 5 § 4 of the Convention. The relevant parts of Article 5 read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A. The parties ' submissions

27 . The applicant asserted that there was no valid reason why hearings concerning the lawfulness of pre-trial detention should not be open to the public.

28 . The Government observed that Article 5 § 4 of the Convention required proceedings concerning the review of the lawfulness of detention to be adversarial and to respect the principle of equality of arms. These requirements had been complied with in the present case . A dversarial hearing s had been held in accordance with Article 182 of the Code of Criminal Procedure. Moreover, the Code of Criminal Procedure ensured equality of arms in that it required the detainee to be represented by counsel at such hearings. Furthermore , it provided that all relevant documents had to be served on the prosecution and the defence without delay.

29 . However, proceedings under Article 5 § 4 did not have to be attended by all the guarantees required under Article 6 § 1. In particular Article 5 § 4 did not require hearings to be public. This was justified by the different aims pursued by each of these provisions. While the publicity requirement of Article 6 § 1 served to protect litigants against the administration of justice in secret and to maintain confidence in the courts, Article 5 § 4 was aimed in particular at protecting the individual against arbitrary deprivation of libe rty by guaranteeing a speedy review of the lawfulness of his detention. A general requirement to give the public access to such hearings risked jeopardi s ing the speediness of the review. In this context, the Government submitted that the Code of Criminal Procedure provided short time-limits within which the court ha d to review the lawfulness of pre-trial detention of its ow n motion until the indictment was preferred. In addition, the detainee could at any time request his release. In the present case, the applicant had been take n into pre-trial detention on 6 May 2000 . Subsequently, the court held hearings on the prolongation of his detention on 19 May, 19 July and 2 August 2000 .

30 . The third party ( the Helsinki Foundation for Human Rights ) argued that Article 5 § 4 contained an implicit requirement that hearings concerning the lawfulness of pre-trial detention be held in public. Firstly, the term “court” in that provision designated a body independent of the executive and the parties to the case. Secondly, the purpose of the review under Article 5 § 4 was to ensure not only that detention complied with the substantive and procedural requirements of domestic law, but also that it was compatible with the general aim of Article 5 to provide protection against arbitrary detention. Public scrutiny of hearings on pre-trial detention would help to verify the independence of the court and to ensure the absence of arbitrariness. Moreover, public hearings would be commensurate with the importance of the right to liberty which was at stake. Finally, the third party referred to the close link between Article 5 § 4 and Article 6 § 1 .

B. The Court ' s assessment

(a) Article 5 § 4 entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty (see, among ma n y others, Brogan and Others v. the United Kingdom , judgment of 29 November 1988, Series A no. 145-B, pp. 34-35, § 65).

(b) Although it is not always necessary tha t the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see, for instance, Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, p. 3302, § 162, and WÅ‚och v. Poland, no. 27785/95 , § 125, ECHR 2000-XI, both with a reference to Megyeri v. Germany , judgment of 12 May 1992, Series A no. 237 ‑ A, p. 11, § 22).

(c) The proceedings must be adversarial and must always ensure “equality of arms” between the parties. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c) , a hearing is required ( see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999 ‑ II , and Assenov and Others , cited abov e, p. 3302 , § 162 , with references to Schiesser v. Switzerland , judgment of 4 December 1979, Series A no. 34, p. 13, §§ 30-31 , Sanchez-Reisse v. Switzerland , judgment of 21 October 1986, Series A no. 107, p. 19, § 51 , and Kampanis v. Greece , judgment of 13 July 1995, Series A no. 318 ‑ B, p. 45, § 47) .

(d) Furthermore, Article 5 § 4 requires that a person detained on remand be able to take proceedings at reasonable intervals to challenge the lawfulness of his detention ( see Assenov and Others, cited above, p. 3302, § 162, with a reference to Bezicheri v. Italy , judgment of 25 October 1989, Series A no. 164, pp. 10-11, §§ 20-21).

32 . Turning to the present case, t he Court reiterates that its task is not to rule on legislation in abstracto and it does not therefore express a view as to the general compatibility of the relevant provisions of the Austrian Code of Criminal Procedure with the Convention ( see Nikolova , cited above, § 60) . The Court must examine whether the proceedings in the applicant ' s case were in conformity with Article 5 § 4 of the Convention.

35 . The t hird party suggest ed t hat the terms of Article 5 § 4 read in the light of the objec t and purpose of the provision, namely to protec t against arbitrariness, implicitly include d such a requirement. Moreover, they refer red to the close link between t h at provision and Article 6 § 1. The Government, for their part, maintain ed that the procedural guarantees contained in Article 5 § 4 differ ed from those contained in Article 6 § 1 .

36 . The Court agrees that there is a close link between Article 5 § 4 and Article 6 § 1 in the sphere of cr iminal proceedings (see Lamy v. Belgium , judgment of 30 March 1989, Series A no. 151, p p. 16-17 , § 29 , and Lanz v. Austria , no. 24430/94, § 41, 31 January 2002).

37 . Thus, Article 6 has been found to have some application at the pre-trial stage (see , for instance, Imbrioscia v. Switzerland , judgment of 24 November 1993, Series A no. 275, p. 13, § 36 , and John Murray v. the United Kingdom , judgment of 8 February 1996, Reports 1996 ‑ I, p. 54, § 62) during which the review of the lawfulness of pre-trial detention under Article 5 § 4 typically takes place. However, this application is limited to certain aspects. It flows from the autonomous meaning to be given to the notion of “criminal charge” and concerns, apart from the starting - point of the proceedings for the purpose of assessing their reasonable length, procedural guarantees which, if not observed at the pre-trial stage, would prejudice the fairness of the proceedings taken as a whole ( see Imbrioscia , loc. cit. ). This has been found to be the case , for example , when a detained person has been denied acc ess to a lawyer during the initial police in terrogation where the rights of the defence may be irretrievably prejudiced ( see John Murray , cited above, p. 55, § 66). However, there is no indication that the non-public nature of the detention hearing s at which the applicant was assisted by counsel could similarly prejudice the fairness of the proceedings as a whole.

40 . This difference of aims explains why Article 5 § 4 contains more flexible procedural requirements than Article 6 while being much more stringent as regards speediness.

In addition , there is some force in the Government ' s argument that the requirement of public hearing s could have negative effects on speediness . Hearings on the lawfulness of pre-trial detention will in practice often be held in remand prisons. Either granting the public effective access to hearings in prison or transferring detainees to court buildings for the purpose of public hearings may indeed require arrangements which run counter to the requirement of speediness. This is all the more so in a case like the present one, in which repeated reviews a t short intervals are required.

42 . Consequently, there has been no violation of Article 5 § 4 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

43 . The applicant based his complaint about the lack of public hearings as regards the prolongation of his pre -trial detention on Article 6 § 1 of the Convention , which reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

A. The parties ' submissions

44 . The applicant contended that Article 6 § 1 applied to proceedings concerning the review of the lawfulness of pre-trial detention and maintained that hearings had to be public.

45 . The Government contested the applicability of Article 6 § 1 to the proceedings in issue. They argued that the present case had to be distinguished from Aerts v. Belgium (judgment of 30 July 1998, Reports 1998 ‑ V) in that the present proceedings exclusively concerned the lawfulness of the applicant ' s detention and did not involve any claim for damages. Thus, Article 6 did not ap ply under its civil head.

It did not apply under its criminal head either. At that stage of the proceedings, all the courts had to assess was whether there was sufficient suspicion against the applicant and further reasons to justify his pre-trial detention, while the “criminal charge” against him was determined only at the trial, which complied with the publicity requirement.

46 . The third party argued that Article 6 applied to proceedings concerning the lawfulness of pre-trial detention, both under its civil and under i t s criminal head. As to its civil head , they relied on the Court ' s finding in Aerts (cited above , p. 196 4 , § 59 ) that the right to liberty was a civil right. Even outside the context of a compensation claim linked to allegedly unlawful detention, a decision on the lawfulness of pre-trial detention had serious repercussions on other civil rights of the detainee, such as his reputation, family life or employment.

As to the criminal head of Article 6, the third party asserted that proceedings concerning detention on remand were an integral part of the criminal proceedings aimed at the determination of the charge. Consequently, the guarantees enshrined in Article 6 applied.

B. The Court ' s assessment

49 . It remains to be examined whether the proceedings in issue fall under the civil head of Article 6. I n Aerts , to which both the Government and the third party referred, the Court found that Article 6 § 1 applied under its civil head to proceedings concerning the lawfulness of deprivation of liberty, as “the right to liberty is a civil right” ( see Aerts , cited above, p. 196 4 , § 59). Mr Aerts had been detained under Article 5 § 1 (e) as a person of unsound mind . Following his release , he had requested legal aid in order to challenge the courts ' assessment of the lawfulness of his detention and seek compensation.

The Court doubts whether such an interpretation is possible : in two subsequent cases w hich also concerned proceedings relating to the lawfulness of detention in psychiatric institutions, the Court found Article 6 to be applicable under its civil head with reference to Aerts . It explicitly dismissed the Government ' s objection of incompatibility ratione materiae , despite the fact that some of the proceedings in issue concerned only the lawfulness of the detention without involving any related pecuniary claims ( see Vermeersch v. France (dec.) , no. 39277 /98, 30 January 2001 , and Laidin v. France (no. 2) , no. 39282/98, § § 73-76 , 7 January 2003).

54 . It will confine itself to examin ing the relationship between Article s 5 § 4 and 6 which is at stake in the present case. A conflict arises , as the former does not generally require a hearing on the lawfulness of pre-trial detention to b e public (see paragraph 41 above ), while the latter requires public hearings in its own sphere of application . In this context, the Court reiterates that the Articles of the Convention have to be interpreted in harmony with each other (see Soering v. the United Kingdom , judgment of 7 July 1989, Series A no. 161, p. 40 , § 103). As regards the review of pre-trial detention , it would go against the principle of harmonious interpretation to derive from the civil head of Article 6 more st ringent requirements than those imposed by the thorough protection system in relation to criminal proceedings set up under Article 5 § 4 and the criminal head of Article 6.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been no violation of Article 5 § 4 of the Convention;

2. Holds that there is no separate issue under Article 6 § 1 of the Convention.

Done in English, and notified in writing on 15 November 2005 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Michael O ' Boyle Nicolas Bratza Registrar President