Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22289/93

by Musa and Saime DEMIR

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 29 June 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 7 July 1993 by

Musa and Saime DEMIR against Austria and registered on 20 July 1993

under file No. 22289/93;

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

A. Particular circumstances of the case

The first applicant, born in 1959, is a Turkish national. He is

at present serving a sentence in the Hirtenberg Prison. The second

applicant, his wife, born in 1958, is an Austrian national. She is

residing in Vienna. In the proceedings before the Commission, they are

represented by Mr. T. Prader and Mr. W. Goeritz, lawyers practising in

Vienna.

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

summarised as follows:

On 29 November 1992 the first applicant was arrested on suspicion

of extortion. He was brought before the Vienna Regional Criminal Court

(Landesgericht für Strafsachen) on 1 December 1992. On 3 December 1992

he was remanded in custody under Section 180 of the Code of Criminal

Procedure (Strafprozeßordnung) on the grounds that there was a risk of

collusion (Kollusionsgefahr) as well as a risk that he might commit an

offence similar to the one he was suspected of (Tatbegehungsgefahr).

In these and the following proceedings, the first applicant was

assisted by Mr. Prader.

On 4 December 1992 the second applicant, the first applicant's

sister in-law and one of his nieces asked the Investigating Judge

(Untersuchungsrichter) for permission to visit the first applicant. The

Investigating Judge refused without giving any specific reason.

On 7 December 1992 the Investigating Judge again refused the

request by the second applicant for a permission to visit the first

applicant on the ground that he had not yet been heard on the suspicion

against him. The Investigating Judge noted that the applicants' right

to exchange letters was not infringed.

On 16 December 1992 the Judges' Chamber (Ratskammer) at the

Vienna Regional Criminal Court, referring to SS. 187 and 188 of the

Code of Criminal Procedure, dismissed the applicants' appeal against

the decisions of the Investigating Judge. The Judges' Chamber found

that the right to visit had only been denied temporarily.

On 22 December 1992 the second applicant requested again for

permission to visit her husband without success. It seems that she was

again accompanied by other relatives of her husband, who did not

receive permission to visit him either.

On 28 December 1992 the first applicant's defence counsel called

the Investigating Judge and was told that permission would be granted

after 8 January 1993, when a number of witnesses were to be heard.

On 5 January 1993 the Judges' Chamber dismissed the applicants'

appeal of 28 December 1992 concerning the refusal to grant a permission

to visit to the second applicant. The Judges' Chamber considered that

the first applicant was under strong suspicion of having, together with

accomplices, extorted money from Turkish restaurant owners or of having

attempted to do so, respectively. One of the reasons for detaining him

on remand was the risk of collusion. The Judges' Chamber further

considered that the first applicant's right to receive visits had not

been infringed as such, as the restriction only concerned visits by his

wife. The Judges' Chamber stated that such a restriction was justified

under Section 187 para. 1 of the Code of Criminal Procedure in

particular with a view to the risk of collusion, which, according to

the files, actually existed in the first applicant's case. As far as

the applicants had invoked Article 8 of the Convention, the Judges'

Chamber considered that any interference with the right to family life

as prescribed in the above provision was justified under Article 8

para. 2. The decision of the Judges' Chamber was served on the

applicants' lawyer on 18 January 1993.

As from 11 January 1993 the Investigating Judge allowed the

second applicant to visit her husband.

On 24 March 1993 the Supreme Court (Oberster Gerichtshof)

rejected a complaint by the first applicant under the Fundamental

Rights Complaints Act (Grundrechtsbeschwerdegesetz) relating to the

refusal of visits by the second applicant. The Supreme Court found that

the above Act did only apply to decisions concerning deprivation of

liberty.

B. Relevant domestic law

Under Section 180 para. 1 and 2 of the Code of Criminal

Procedure, a person may be held in detention on remand - where there

are serious grounds for suspecting him of having committed a criminal

offence - if there is a risk of his absconding, of collusion or of his

committing an offence similar to the one he is suspected of.

Section 187 para. 1 of the Code of Criminal Procedure provides

that remand prisoners may receive visits from all persons and may

correspond in writing with all persons, provided that there is no

danger that such persons may interfere with the purpose of the

detention. According to para. 3 remand prisoners may receive visits as

often and for as many hours as, given the need for surveillance, is

feasible without disturbing the work of the prison personnel or the

order in the prison. However, a remand prisoner may under no

circumstances be denied the right to receive visits two times a week

for a quarter of an hour.

Section 188 para. 1 states that decisions concerning the persons

with whom the detainee may correspond and whose visits he may receive

as well as the surveillance of correspondence and of visits are the

responsibility of the Investigating Judge. The surveillance of

correspondence may only be suspended if this can be expected not to

interfere with the purpose of the detention.

COMPLAINTS

The applicants complain under Article 8 of the Convention that

the decision by the Investigating Judge to prohibit the second

applicant, during a period of six weeks, from visiting her husband, the

first applicant, who was held in detention on remand, violated their

right to respect for family life.

THE LAW

The applicants complain under Article 8 (Art. 8) of the

Convention. They allege a violation of their right to respect for their

family life.

Article 8 (Art. 8) of the Convention, so far as relevant,

provides:

"1. Everyone has the right to respect for his private and

family life ...

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society ..., for the prevention of disorder or crime, ..."

The Commission considers that the contested refusal by the

Investigating Judge to allow the first applicant, who was detained on

remand, to receive visits by his wife, the second applicant, during a

period of six weeks, constituted an interference with the right to

respect for their family life under Article 8 para. 1 (Art. 8-1).

Such an interference is in breach of Article 8 (Art. 8), unless

it is justified under paragraph 2 of Article 8 (Art. 8-2) as being "in

accordance with the law" and "necessary in a democratic society" for

one of the aims set out therein.

As regards the lawfulness of the measure complained of, the

Commission notes that the Investigating Judge, under Section 187 para.

1 and Section 188 para. 1 of the Code of Criminal Procedure, may refuse

visits to remand prisoners by persons who may be expected to interfere

with the purpose of the detention. The decision of the Investigating

Judge is subject to appeal before the Judges' Chamber. The Commission

is, therefore, satisfied that the refusal of visits in question was in

accordance with Austrian law.

Moreover, the Commission finds that the interference served one

of the legitimate aims listed in Article 8 para. 2 (Art. 8-2), namely

the prevention of disorder or crime.

As regards the question whether the interference was "necessary

in a democratic society", the Commission recalls that the notion of

necessity implies that the interference corresponds to a pressing

social need and, in particular, that it is proportionate to the

legitimate aim pursued. The Contracting States have a certain margin

of appreciation in assessing whether such a need exists, but it goes

hand in hand with a European supervision, embracing both the law and

the decisions applying it, even those given by independent courts (Eur.

Court H.R., Campbell judgment of 25 March 1992, Series A, no. 233,

p. 18, para. 44).

The Commission notes that the Judges' Chamber in its decision of

5 January 1993 on the applicants' appeal against the decisions of the

Investigating Judge found that the latter had refused to give the

second applicant permission to visit the first applicant, because he

was detained on the ground of a risk of collusion. The Judges' Chamber

considered that, according to the file, the risk that the first

applicant might abuse such visits was actually given.

The Commission further considers that the period involved was

relatively short, namely six weeks. Furthermore the applicants had

another means to communicate, namely the exchange of letters.

In these circumstances, the Commission finds that the

interference complained of can reasonably be considered as necessary

in a democratic society for the prevention of disorder or crime. Thus,

the interference was justified under Article 8 para. 2 (Art. 8-2).

The application is, therefore, 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) (A. WEITZEL)

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DEMIR v. AUSTRIA

DEMIR v. AUSTRIA

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