Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20055/92

by Günter MOSER

against Austria

The European Commission of Human Rights (First Chamber)

sitting in private on 13 April 1994, the following members being

present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

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 15 May 1992

by Günter Moser against Austria and registered on 27 May 1992

under file No. 20055/92;

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

Rules of Procedure of the Commission;

Having regard to the observations submitted by the

respondent Government, after two extensions of the time-limit,

on 17 March 1993 and the observations in reply, after an

extension of the time-limit, submitted by the applicant on 23

June 1993;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant, born in 1955, is an Austrian national and

resident at Neulengbach. When lodging his application he was

detained at a prison in St. Pölten. Before the Commission he is

represented by Mr. S. Gloß, a lawyer practising in St. Pölten.

A. Particular circumstances of the case

On 24 August 1990 the applicant and his wife were arrested

on the suspicion of having committed grave fraud. On 26 and 27

August 1990 the applicant's wife and the applicant, respectively,

were taken into detention on remand. The Investigating Judge at

the St. Pölten Regional Court found that there was a risk of

collusion and of the applicant's absconding, pursuant to S. 180

para. 2 of the Austrian Code of Criminal Procedure

(Strafprozeßordnung). In the ensuing criminal proceedings against

him, the applicant was assisted by defence counsel.

On 5 September 1990 the Judges' Chamber (Ratskammer) at the

St. Pölten Regional Court (Landesgericht) dismissed the

applicant's appeal (Beschwerde) against the order of his

detention on remand. The Judges' Chamber confirmed the risk of

collusion and of his absconding, and also ordered his continued

detention in view of the risk of a repetition of the offences

concerned.

On 9 October 1990 the Vienna Court of Appeal

(Oberlandesgericht) upheld the applicant's further appeal against

the decision of the Judges' Chamber to the extent that the

detention order was based on the risk of his absconding, and

dismissed the remainder of the appeal. The applicant continued

to be detained.

On 2 November 1990, 5 February and 9 August 1991 the Vienna

Court of Appeal, on the basis of S. 193 para. 4 of the Code of

Criminal Procedure extended the maximum period of the applicant's

detention on remand to three months, one year and eighteen

months, respectively. The applicant's wife likewise remained in

detention on remand on the basis of court decisions taken

parallel to those relating to her husband.

In the course of the preliminary investigations, the

applicant was questioned by the Investigating Judge on 16 May,

4 and 23 October 1991.

On 29 October 1991 the St. Pölten Public Prosecutor's Office

(Staatsanwaltschaft) preferred the indictment against the

applicant and his wife charging them in particular with

professional fraud which had caused a damage of almost AS 126

million. The accused objected to the indictment.

On 26 November 1991 the St. Pölten Regional Court (Landes-

gericht), following a private hearing, dismissed the applicant's

request for release. Referring to the indictment and the result

of the investigations against them, the Regional Court considered

that there was a strong suspicion that the applicant and his wife

had committed fraud. The risk that the applicant would commit

further offences continued to exist. The length of their

detention on remand did not appear disproportionate to the

sentence which they had to expect, namely imprisonment up to ten

years.

On 10 December 1991 the applicant appealed against the

decision of 26 November 1991. On 23 December 1991 the Vienna

Senior Public Prosecutor's Office (Oberstaatsanwaltschaft)

briefly commented on the question of the accused's committal for

trial, and requested their continued detention on remand.

On 2 January 1992 the Vienna Court of Appeal, following

deliberations in camera in the absence of both the prosecution

authorities and the accused, committed the applicant and his wife

for trial. Furthermore, the Court of Appeal dismissed the

applicant's appeal against the decision of 26 November 1991. The

Court of Appeal, having regard to the indictment and the results

of the very detailed preliminary investigations, considered in

particular that there was a strong suspicion that the applicant

and his wife had defrauded various investment consultants and

investors as regards an investment model and the solvency of a

company, and caused damage of almost AS 126 million. There was

a risk that the applicant being apparently very talented in

defrauding other persons would commit further offences of the

same kind, if released. In this respect, the Court of Appeal also

noted that the applicant had previously been convicted of

negligent bankruptcy.

On 4 February 1992 the Investigating Judge forwarded the

criminal files to the Presiding Judge at the St. Pölten Regional

Court. Thereupon, the Presiding Judge and the Public Prosecutor's

Office requested the Vienna Court of Appeal further to prolong

the applicant's detention on remand.

On 17 February 1992 the Vienna Court of Appeal, sitting in

camera, granted the above request and ordered that the

applicant's detention on remand could last up to twenty-two

months. The Court of Appeal, having heard the Senior Public

Prosecutor, confirmed the strong suspicion of fraud against the

applicant. In this respect, the Court of Appeal referred in

particular to the indictment and its decision of 2 January 1992.

It noted that the investigations were particularly difficult and

complex, there were meanwhile twenty-nine files, and the

indictment comprised twenty-nine pages. Moreover, it was

envisaged to start the trial on 1 June 1992.

On 16 April 1992 the Presiding Judge at the competent

Chamber of the St. Pölten Regional Court decided that the trial

against the applicant and his wife should take place between 19

May and 6 June 1992.

On 11 June 1992 the St. Pölten Regional Court convicted the

applicant and his wife of grave fraud on numerous counts. The

applicant was sentenced to eight years' imprisonment. The

Regional Court found that they had defrauded sixty-six investors

who had placed funds with them. The damage thus caused amounted

to more than AS 37 million. As regards the charges of fraud on

four further counts, the applicants were acquitted. The written

version of the judgment was served upon the applicant on 16 July

1992. On 27 October 1992 the Austrian Supreme Court (Oberster

Gerichtshof), upon the pleas of nullity (Nichtigkeitsbeschwerden)

lodged by the applicant and his wife, quashed the judgment of 11

June 1992, and sent the case back to the Regional Court. The

Supreme Court found that at the trial before the Regional Court

the contents of the files had not been fully read out.

On 25 November 1992 the Judges' Chamber at the Regional

Court dismissed the applicant's request to be released from

detention. The Vienna Court of Appeal dismissed his appeal on 29

December 1992.

On 9 February 1993 the Supreme Court dismissed the

applicant's complaint that the Vienna Court of Appeal's decision

of 29 December 1992 had violated his right to liberty. As regards

the alleged violation of Article 5 para. 3 of the Convention, the

Supreme Court found that, having regard to the enormous scope of

the case, the length of the proceedings so far did not appear

unreasonable. On the basis of a careful and critical examination

of the files, the Supreme Court reached the conclusion that the

courts involved in the case had not caused any considerable

delays of the proceedings or otherwise acted negligently. The

Supreme Court noted in particular that the full report of the

competent police authorities on the charges against the applicant

and his wife, contained in sixteen files, only reached the

Regional Court in May 1991. The charges of fraud involved seventy

victims of whom most lived abroad, and the investigations

concerned numerous banking accounts and booklets. Moreover, the

proceedings had partly also been conducted against the

applicant's wife and partly against seven further suspects. The

proceedings relating to the appeals lodged by the applicant and

his wife against their continued detention had not prolonged the

proceedings on the ground that the court of first instance had

continued to work on the basis of photocopies or to parts of the

files, prepared for its own use or for use by the Court of

Appeal. There had been no delays at the trial stage, in

particular, it took the Presiding Judge only about one month to

prepare the trial, the judgment was pronounced on 11 June 1992

and the written version of the judgment was already served on 16

July 1992.

Meanwhile, in the course of the main trial proceedings

before the St. Pölten Regional Court, the case had been assigned

to Judge R. on 4 December 1992. On 17 December 1992 the case had

been assigned to Judge W. on the ground that Judge R. had

previously acted as Investigating Judge. In March 1993 Judge W.,

having examined the files, informed the President of the St.

Pölten Regional Court that he had also been involved in the

preliminary investigations at some stage. On 1 April 1993 the

President decided that Judge W. as well as a further judge could

not participate in the trial against the applicant. The case was

assigned to Judge S. The applicant's motion to challenge Judge

S. for bias was dismissed on 11 May 1993, his motion regarding

a further judge was, however, successful. On 25 May 1993 the

dates for the hearings in the applicant's case were fixed between

22 June and 22 July 1993. Following the trial, still in July

1993, the St. Pölten Regional Court again convicted the applicant

of fraud and sentenced him to seven years' imprisonment. Upon the

applicant's appeal, the Vienna Court of Appeal reduced his

sentence to six years' imprisonment.

B. Relevant domestic law

Under S. 180 paras. 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 repetition of the offences.

According to S. 193, detention may not last more than two

months if it is based only on the danger of collusion, or more

than six months if based on the other reasons.

The second-instance court may however, if the investigating

judge or the prosecuting authorities so request and if the

complexity or scope of the investigation makes it necessary,

extend the detention up to a maximum of three months in the case

of suspected collusion, and one year where the other grounds are

relied on, or even two if the sentence risked exceeds five years.

In exercising this power the appellate court sits in private

session in the absence of the detainee and his lawyer; it gives

the principal public prosecutor's office the opportunity to make

submissions.

Detention founded on a reason other than the risk of

collusion alone is subject to no time-limit as soon as the trial

has begun.

The accused may lodge an application for release at any time

(S. 194 para. 2). Under S. 194 and 195, such an application is

to be examined by the Judges' Chamber (Ratskammer) of the

Regional Court in a private hearing, in the presence of the

accused and his lawyer.

COMPLAINTS

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

Convention about the length of his detention on remand. He

submits in particular that the investigations against him could

have been concluded earlier, and that the trial could have been

fixed for February 1992.

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

Convention that, in the proceedings before the Vienna Court of

Appeal leading to its decision of 2 January 1992, he was not

heard personally. He also complains that the Vienna Court of

Appeal, prior to its decision of 17 February 1992, did not hear

him upon the request of the Presiding Judge and the Public

Prosecutor's Office further to prolong his detention on remand.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 May 1992 and registered

on 27 May 1992.

On 14 October 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 17 March 1993, after two extensions of the time-limit,

the Government submitted their observations. The observations in

reply by the applicant were submitted after an extension of the

time limit on 23 June 1993. The applicant's representative

supplied some further information on the outcome of the criminal

proceedings on 1 February 1994.

THE LAW

1. The applicant complains under Article 5 para. 3 (Art. 5-3)

of the Convention about the length of his detention on remand.

Article 5 para. 3 (Art. 5-3), so far as relevant, provides

as follows:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) (Art. 5-1-c) of this Article

... shall be entitled to trial within a reasonable time or

to release pending trial."

The Government consider that the length of the applicant's

detention on remand was not unreasonable. They submit that the

criminal proceedings against the applicant were particularly

complex, and that there were no undue delays on the part of the

Austrian authorities. They refer in particular to the finding of

the Supreme Court in its decision of 9 February 1993.

The applicant submits in particular that the investigations

against him could have been concluded earlier. He points in

particular at the lengthy intervals between his successive

questioning by the Investigating Judge. He considers that the

trial could have been fixed for February 1992. His submissions

also relate to his detention following his conviction on 11 June

1992. The Commission notes that the applicant was arrested on 24

August 1990. As regards the period preceding his first conviction

on 11 June 1992, the applicant's detention on remand within the

meaning of Article 5 para. 3 (Art. 5-3) of the Convention lasted

one year and nine and a half months (cf. Eur. Court H.R., B. v.

Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16,

paras. 36-38).

The Commission recalls that it is in the first place for the

national authorities to ensure that, in a given case, pre-trial

detention of an accused person does not exceed a reasonable time.

To this end, they must examine all the facts arguing for or

against the existence of a genuine requirement of public interest

justifying, with due regard to the principle of the presumption

of innocence, a departure from the rule of respect for individual

liberty and set them out in their decisions on the question of

release. It is essentially on the basis of the reasons given in

these decisions and of the true facts mentioned by the applicant

in his appeals, that the Convention organs are called upon to

review the reasonableness of the length of detention (cf. Eur.

Court H.R., Letellier judgment of 26 June 1991, Series A no. 207,

p. 18, para. 35; W. v. Switzerland judgment of 26 January 1993,

para. 30, to be published in Series A no. 254).

The persistence of reasonable suspicion that the person

arrested has committed an offence is a condition sine qua non for

the validity of the continued detention, but, after a certain

lapse of time, it no longer suffices; the Convention organs must

then establish whether the other grounds cited by the judicial

authorities continue to justify the deprivation of liberty, and

whether the domestic authorities displayed special diligence in

the conduct of the proceedings (cf. Eur. Court H.R., Letellier

judgment, loc. cit.; W. v. Switzerland judgment, loc. cit.).

The St. Pölten Regional Court and the Vienna Court of

Appeal, in their respective decisions relating to the applicant's

continued detention on remand, found that, on the basis of the

preliminary investigations and later also the indictment, there

was a reasonable suspicion that he had committed the offences in

question. Their finding as to the risk that the applicant would

commit further offences of the same kind was based on the

professional nature of the applicant's conduct in respect of the

offences he was charged with. The applicant's continued detention

was thus based on sufficient and relevant grounds.

The Commission further recalls that the right of the accused

in detention to have his case examined with particular expedition

must not hinder the efforts of the prosecution authorities to

carry out their tasks with proper care (cf. Eur. Court H.R.,

Tomasi judgment of 27 August 1992, Series A no. 241-A, p. 39,

para. 102; W. v. Switzerland judgment, loc. cit., para. 42).

The Commission notes that the preliminary investigations

started in August 1990, and the Public Prosecutor's Office

preferred the indictment in October 1991, the investigations were

thus completed within fourteen months.

In the ensuing proceedings, it took the Vienna Court of

Appeal two months to commit the applicant and his wife for trial

and, at the same time, decide upon his and his wife's continued

detention on remand. The trial started four and a half months

later, and they were convicted on 11 June 1992, i.e.

approximately six months and one week later.

The Vienna Court of Appeal, in its decision of 17 February

1992, as well as the Supreme Court, in its decision of 9 February

1993, carefully examined the complexity of the case and the

progress of the criminal proceedings against the applicant, and

did not find any significant delay caused by the authorities.

The Commission notes that the charges against the applicant

and his wife concerned aggravated fraud on seventy counts, the

judgment of 11 June 1992 related to fraud committed to the

disadvantage of sixty-six victims, mostly living abroad. The

documents relating to the case filled twenty-nine files when the

proceedings started before the Regional Court.

The Commission, having regard to the complexity of the

proceedings, finds that the period of about fourteen months for

completing the preliminary investigations does not appear

excessive. In particular, the fact that the applicant's

questioning upon the charges against him took place at different

stages of the investigations does not, in itself, disclose an

undue conduct of the proceedings. There is no indication that the

approach of the authorities to the investigations was otherwise

inefficient and unreasonable, and their conduct does not, on the

whole, disclose any failure to act with the necessary diligence.

Furthermore, there was no substantial delay in the proceedings

before the St. Pölten Regional Court leading to the conviction

of the applicant and his wife. The Commission also attaches

weight to the fact that the authorities took recourse to

photocopies or to parts of the files in order to pursue the main

proceedings against the applicant and his wife pending the

proceedings before the Court of Appeal regarding their detention

on remand.

In these circumstances, the Commission considers that the

period of the applicant's detention on remand prior to his

conviction by the St. Pölten Regional Court on 11 June 1992 did

not exceed a reasonable time within the meaning of Article 5

para. 3 (Art. 5-3) of the Convention.

The Commission further observes that, should the length of

the applicant's detention between the Supreme Court's judgment

of 27 October 1992, quashing the applicant's conviction of 11

June 1992, and his conviction in July 1993 in the second set of

proceedings be considered under Article 5 para. 3 (Art. 5-3) of

the Convention, this period of less than nine months does not

appear unreasonable, even bearing the length of his detention on

remand in the course of the first set of proceedings in mind. In

particular, as the first conviction had been quashed for a

procedural error, the proceedings had to be completely repeated.

At the beginning of the second set of proceedings, there were

problems as to the composition of the Regional Court. Moreover,

the applicant failed to point at any relevant delays on the part

of the Regional Court.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

2. The applicant complains under Article 5 para. 4 (Art. 5-4)

of the Convention about the alleged unfairness of the proceedings

before the Vienna Court of Appeal relating to his continued

detention on remand.

Article 5 para. 4 (Art. 5-4), provides that "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 applicant submits that, in the proceedings before the

Vienna Court of Appeal leading to its decision of 2 January 1992,

he was not heard personally.

The Commission notes that, in accordance with the relevant

provisions of the Austrian Code of Criminal Procedure, the

applicant could take proceedings before the Judges' Chamber at

the St. Pölten Regional Court to have the lawfulness of his

detention on remand reviewed. He availed himself of this right

several times, thus his requests for release were dismissed in

September 1990 and November 1991, his further appeals with the

Vienna Court of Appeal being unsuccessful.

The Commission recalls that Article 5 para. 4 (Art. 5-4)

does not compel the Contracting States to set up a second level

of jurisdiction for the examination of applications for release

from detention. Nevertheless, a State which institutes such a

system must in principle accord to the detainees the same

guarantees on appeal as at first instance. In particular, the

proceedings must ensure equal treatment and be truly adversarial

(cf. Eur. Court H.R., Toth judgment of 12 December 1991, Series

A no. 224, p. 23, para. 84).

The Commission notes that on 26 November 1991 the St. Pölten

Regional Court, following a private hearing in the presence of

the applicant, dismissed his request for release from detention

on remand. The applicant appealed on 10 December 1991, and the

Vienna Senior Public Prosecutor's Office, by submissions dated

23 December 1991, briefly commented on the question of the

accused's committal for trial and requested their continued

detention on remand. The Court of Appeal's decision to reject the

applicant's appeal was taken in camera on 2 January 1992, without

a representative of the prosecuting authorities being present.

In these circumstances, the Commission finds no appearance

of discrimination against the applicant in the appeal proceedings

which were decided upon written submissions of both the applicant

and the Senior Prosecutor's Office. The written request made by

the Senior Prosecutor's Office to continue the applicant's

detention on remand did not contain any relevant aspect which was

not covered by the applicant's preceding submissions upon appeal.

Furthermore, the applicant who had been heard personally before

the Regional Court, did not show to what extent a due

presentation of his appeal required his personal appearance

before the Court of Appeal.

In these circumstances, the Commission finds no indication

that the review of the applicant's continued detention on remand

did, on the whole, not comply with the requirements under Article

5 para. 4

(Art. 5-4) of the Convention.

b. As regards the applicant's further complaint that the Vienna

Court of Appeal, prior to its decision of 17 February 1992, did

not hear him upon the request of the Presiding Judge and the

Public Prosecutor's Office to prolong his detention on remand,

the Commission notes that this set of proceedings concerned the

extension of the maximum period of the applicant's detention on

remand.

The Commission recalls that, in these circumstances, the

appellate court does not itself decide upon the appropriateness

or the necessity of keeping the accused in prison or releasing

him, nor does it undertake a review of the "lawfulness of the

detention". It confines itself to setting out a framework within

which the investigating judge or the prosecuting authority is

free to take decisions. Article 5 para. 4 (Art. 5-4) does not,

therefore, apply to the proceedings in question (cf. Eur. Court

H.R., Toth judgment, loc. cit., pp. 23-24, paras. 86-87).

Thus, no issues arise under Article 5 para. 4 (Art. 5-4) in

this respect.

It follows that this part of the application is also

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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