Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23672/94

by Dragan DUMANCIC

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 May 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 November 1993

by Dragan DUMANCIC against Austria and registered on 14 March 1994

under file No. 23672/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, born in 1962, was a citizen of former Yugoslavia

and is residing in Vienna. In the proceedings before the Commission he

is represented by Mr. K. Bernhauser, a lawyer practising in Vienna.

On 27 July 1991 the applicant, upon an arrest warrant of the

Vienna Regional Criminal Court (Landesgericht für Strafsachen), was

taken in detention on remand at the Hirtenberg prison, which is

situated outside Vienna.

On 5 December 1991 the Vienna Regional Court acquitted the

applicant and ordered the officers of the prison authorities (Justiz-

wachebeamte) at 10.45 a.m. that he be released. Subsequently, the

applicant was held in the guard-room of the Regional Court's prison

until the trials of two other prisoners had ended. At 12.15 p.m. a

transport with the applicant and these two prisoners left the Regional

Court and arrived at the Hirtenberg prison at 1.30 p.m. After having

collected his personal belongings, the applicant came to the so called

reception room at 2.10 p.m. Subsequently, the payment of some

administrative fines was settled and he was released at 2.45 p.m.

On 9 January 1992 the applicant lodged a complaint (Beschwerde)

with the Vienna Independent Administrative Tribunal (Unabhängiger

Verwaltungssenat). He submitted in particular that his detention on

5 December 1991 between 10.45 a.m., when the Court ordered his release,

and 2.45 p.m., when he was actually released, was unlawful and violated

his right to liberty. In these and the subsequent proceedings the

applicant was represented by counsel.

On 14 September 1992 the Vienna Independent Administrative

Tribunal rejected the applicant's complaint as regards his detention

on 5 December 1991 between 10.45 a.m. and 2.10 p.m, but declared that

his further detention between 2.10 and 2.45 p.m. had been unlawful.

As regards the period between 10.45 a.m. and 2.10. p.m., the

Independent Administrative Tribunal found that a court order to release

a prisoner on remand did not mean that he had to be released on the

spot, but that the necessary steps for his release had to be taken

without delay. During this short transitional period, the court order

served as a legal basis for the detention. The Hirtenberg prison, where

the applicant had been held in detention on remand, was between forty-

five minutes' and two and a half hours' drive from the Vienna Regional

Court, depending on the weather and traffic conditions. In these

circumstances, it was justified to organise "collective transports" of

a number of prisoners, if this could be done within reasonable time.

The waiting time before the departure from the Regional Court at

12.15 p.m. was not yet unreasonable. However, advance notice of the

applicant's acquittal should have been given to the prison authorities

and the release formalities should have been concluded after he had

collected his personal belongings at 2.10 p.m. Until this time his

detention was still covered by the Regional Court's order.

As regards the period between 2.10 and 2.45 p.m., the Independent

Administrative Tribunal found that the applicant's detention served in

particular to settle the payment of some administrative fines. However,

it was no more covered by the Regional Court's order and there was no

other legal basis for it. Thus, this part of the applicant's detention

was unlawful.

On 28 October 1992 the applicant lodged a complaint with the

Administrative Court (Verwaltungsgerichtshof). He contested the opinion

of the Independent Administrative Tribunal that the delay between

10.45 a.m. and 2.10 p.m. was still reasonable. He submitted in

particular that the prison authorities would have been obliged to carry

out the release formalities at the prison of the Vienna Regional

Criminal Court or to transfer him immediately to the Hirtenberg prison

without waiting for other prisoners.

On 16 September 1993 the Administrative Court dismissed the

applicant's complaint. It found that the Independent Administrative

Tribunal had rightly assumed that the release formalities had to be

carried out at the prison where the applicant had been held in

detention on remand. Further, the Court confirmed that a delay of one

hour and a half in order to organise a "collective transport" of

several prisoners was justified with a view to the duration of the

drive. Thus, the court's release order had not been exceeded.

COMPLAINTS

The applicant complains under Article 5 of the Convention that

his detention until 2.10 p.m. on 5 December 1991, following the

Regional Court's order of 10.45 a.m. to release him, was unlawful. He

submits that this detention was not justified, as the prison

authorities would have been obliged to carry out the release

formalities at the prison of the Vienna Regional Criminal Court or to

transfer him immediately to the Hirtenberg prison.

THE LAW

The applicant complains under Article 5 (Art. 5) that his

detention on 5 December 1991, following the Regional Court's order to

release him, was unlawful.

Article 5 (Art. 5), so far as relevant, reads 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 and offence or when it

is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so;

The Commission recalls that, as regards the question whether a

detention is "lawful", including whether it complies with "a procedure

prescribed by law", the Convention refers back essentially to national

law and lays down the obligation to conform to the substantive and

procedural rules thereof. However, it requires in addition that any

deprivation of liberty should be consistent with the purpose of

Article 5 (Art. 5), namely to protect individuals from arbitrariness

(see Eur. Court H.R., Wassink judgment of 27 September 1990, Series A

no. 185-A, p. 11, para. 24). As regards the execution of a decision

ordering the release of a detainee, the Court has acknowledged that

some delay is understandable (see Eur. Court H.R. Quinn judgment of

22 March 1995, para. 42, Series A no. 311).

In the present case, the Vienna Regional Criminal Court on

5 December 1991 at 10.45 a.m. ordered the applicant's release. However,

the execution of the release order took until 2.45 p.m. Part of this

period, namely the time as of 2.10 p.m. was, in course of domestic

appeal proceedings, found to be unlawful. The question before the

Commission is, therefore, whether the applicant's detention during the

remaining period between 10.45 a.m. and 2.10 p.m. can still be regarded

as a lawful execution of the Regional Court's above-mentioned order.

The applicant complains in particular that the authorities would have

been obliged to carry out the release formalities at the prison of the

Vienna Regional Criminal Court or to transfer him immediately to the

Hirtenberg prison.

The Vienna Independent Administrative Tribunal found that a court

order to release a prisoner on remand still served as a legal basis for

the short transitional period until his actual release, provided that

the necessary steps were taken without delay. Further, the

Administrative Court held that, in the applicant's case, it was correct

to carry out the release formalities at the Hirtenberg prison, where

he had been detained. With a view to the distance between the Regional

Court and the Hirtenberg prison, it was justified to organise a

"collective transport" of several prisoners, which in the applicant's

case caused a waiting period of one and a half hours between 10.45 a.m.

and 12.15 p.m. Finally, the Commission notes that the remaining time

was needed for the transfer itself, which took until 1.30 p.m. and the

release formalities, which took until 2.10 p.m. In these circumstances,

the applicant's detention until 2.10 p.m., following the Regional

Court's order to release him, was lawful within the meaning of

Article 5 para. 1 (Art. 5-1) of the Convention. There is no indication

of arbitrariness in the conduct of the authorities.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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DUMANCIC v. AUSTRIA

DUMANCIC v. AUSTRIA

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