AS TO THE ADMISSIBILITY OF

                      Application No. 19801/92

                      by C.K. G.

                      against Austria

      The European Commission of Human Rights sitting in private on

2 March 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 29 January 1992 by

C.K. G. against Austria and registered on 6 April 1992 under file No.

19801/92;

      Having regard to the observations submitted by the respondent

Government, after an extension on the time-limit, on 6 November 1992 and

a corrected version on 13 November 1992, and the observations in reply

submitted by the applicant on 13 April 1993 ;

      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 they have been submitted by the parties,

may be summarised as follows.

      The applicant, born in 1928, has double nationality, namely that of

Austria and the United States of America. When lodging her application,

she was detained at a prison in Schwarzau. Since August 1992 the

applicant has been represented by Mr. G. Winterstein, a lawyer practising

in Vienna.

A.    Particular circumstances of the case

      It appears that in 1970 the applicant was sentenced to five years'

imprisonment. The enforcement of the sentence was suspended in 1973 on

the ground that she was not fit to serve a prison sentence

(strafvollzugsuntauglich). In 1985 she was detained in order to serve the

remainder of the said sentence, and in January 1986 again released for

health reasons. A new examination of her state of health did not take

place, the applicant having left Austria.

      On 23 September 1988 the Investigating Judge at the Vienna Regional

Court (Landesgericht) instituted preliminary investigations against the

applicant on suspicion of grave fraud, and issued a warrant for her

arrest.

      On 20 October 1989 the Vienna Neustadt Regional Court (Kreis-

gericht), competent for the enforcement of the applicant's sentence

(Vollzugsgericht), issued an order for bringing her before the court

(Vorführbefehl), as she still had to serve the remainder of the prison

sentence imposed in 1970. On 1 June 1990 the applicant came back to

Austria where she was arrested and taken into detention.

      In the course of this detention, the Vienna Neustadt Regional Court

ordered an expert opinion regarding the applicant's state of health.

According to the expert opinion of 30 October 1990, the applicant was

suffering from wide skin wounds on her extremities which were not

healing, as well as from a rupture of her abdominal wall. She was not

fully capable of moving her spine and her right hand. Due to an abdominal

operation, she was suffering from abdominal coalescence with a risk of

intestinal obstruction and also possibly acute serious complications such

as peritonitis. The applicant could not, therefore, be requested to

accomplish manual work and thus not be integrated in the educative part

of a prison sentence. The expert, having also regard to the chronic

nature of her diseases, concluded that the applicant was unfit to serve

her prison sentence.

      On 21 December 1990 the Vienna Neustadt Regional Court suspended the

enforcement of the applicant's prison sentence under S. 5 para. 1, in

conjunction with S. 133, of the Enforcement of Sentences Act

(Strafvollzugsgesetz). The Regional Court, referring in detail to the

expert opinion of 30 October 1990, noted that the applicant was severely

ill, and found that, due to her illness, her sentence could not be

enforced in conformity with the aims of a prison sentence.

      On 21 December 1990 the Duty Judge (Journalrichter) at the Vienna

Regional Court, in the context of the new investigation proceedings

against the applicant, ordered her detention on remand. The Judge,

referring to S. 180 para. 2 (1) and para. 3 (c) of the Code of Criminal

Procedure (Strafprozeßordnung), found that the applicant was reasonably

suspected of having committed fraud to the disadvantage of a banking

institute by unlawful debiting of her banking account in the period from

June 1986 until April 1987, as well as fraud to the disadvantage of a

further banking institute in April 1988. The Judge considered that there

was a risk of the applicant's absconding, as she had been in hiding at

the beginning of the investigations against her, and also a risk of her

committing further criminal offences.

      On 31 January 1991 the Vienna Prosecutor's Office (Staats-

anwaltschaft) charged the applicant with grave fraud on several counts

and requested her prosecution (Strafantrag).

      On 8 February 1991 the Judges' Chamber (Ratskammer) at the Vienna

Regional Court dismissed the applicant's request for release, in which

she had, inter alia, invoked her bad state of health.

      The Judges' Chamber, referring to the request of the Prosecutor's

Office of 31 January 1991, considered that the applicant was reasonably

suspected of grave fraud on several counts. In a detailed reasoning, it

also confirmed that there was a considerable risk of her absconding, as

well as a considerable risk that, upon her release, she would commit

further criminal offences to the detriment of third persons' property.

Less strict measures were not likely to remove these risks. The Judges'

Chamber further considered that the applicant's submissions as to her

illness could not, from a legal point of view, hinder her detention on

remand. It noted that her alleged illness had not prevented her from

committing the offences of which she was reasonably suspected. Finally,

the length of her detention on remand did not appear disproportionate.

      On 26 February 1991 the Vienna Court of Appeal (Oberlandes-gericht)

dismissed the applicant's appeal against the decision of 8 February 1991.

The Court of Appeal confirmed the findings of the Judges' Chamber as

regards the reasonable suspicion against the applicant as well as the

risk of her absconding and of her committing further criminal offences.

The Court also found that the question whether a person was fit to serve

a prison sentence within the meaning of S. 5 of the Enforcement of

Sentences Act could not be considered in deciding upon detention on

remand.

      On 6 May 1992 the Judges' Chamber at the Vienna Regional Court

dismissed the applicant's renewed application for her release.

      In the course of her detention on remand, the applicant's medical

surveillance was ensured by a prison doctor, and further therapy of her

ailments was possible at a nearby hospital. It appears that the applicant

did not accept therapies recommended to her and did not comply with the

prescribed medication. On the inspection of her prison cell in September

1991, large quantities of medicine had been found.

      On 11 May 1992 the Vienna Regional Court, having conducted hearings

on 8 April and 17 September 1991, as well as on 9 January and

11 May 1992, convicted the applicant of grave fraud and sentenced her to

three years and six months' imprisonment. The applicant lodged a plea of

nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung).

      On 10 June 1992 the Vienna Court of Appeal dismissed the applicant's

appeal against the decision of the Judges' Chamber of 6 May 1992, and

ordered the continuation of her detention. The Court of Appeal referred

to a new medical expert opinion dated 6 May 1992 according to which the

applicant was meanwhile able to serve a prison sentence, if there was no

physical strain.

      On 21 October 1992 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity. Upon her appeal it reduced the

prison term to three years.

      On 18 December 1992 the Vienna Neustadt Regional Court dismissed the

applicant's request that the enforcement of the prison sentence be

postponed, pursuant to S. 133 para. 1 in conjunction with S. 5 para. 1

of the Enforcement of Sentences Act. The Regional Court, having regard

to the medical expert opinion of 6 May 1992, found that the applicant was

fit to serve her sentence. It also noted that according to the expert

opinion the applicant had not suffered a deterioration of her illness

during her preceding detention.

      Following a successful appeal in this respect, the matter was

resumed before the Regional Court, and a new expert opinion on the

applicant's state of health prepared. On 27 September 1993 the Vienna

Neustadt Regional Court confirmed its previous decision. The Regional

Court thereby considered the opinion of the Institute for Forensic

Medicine dated 21 September 1993 according to which there was no

objection against the execution of her sentence, if constant medical

surveillance was provided for.

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 if he is seriously suspected

of having committed a criminal offence and if there is a risk of his

absconding, of collusion or of repetition of the offences. According to

S. 184 of the Code of Criminal Procedure, detention on remand is designed

to encounter the risks set out in S. 180 para. 2.

      SS. 183 to 189 of the Code of Criminal Procedure govern the

treatment of remand prisoners. In particular, S. 184 provides that the

detention on remand is designed to avoid the risks set out in S. 180

para. 2, and that only such restrictions may be imposed upon them as are

necessary achieve this aim or to prevent disorder in the prison. S. 186

regulates in detail the circumstances of detention in remand, including

the voluntary work of remand detainees.

      S. 5 para. 1 of the Enforcement of Sentences Act provides that

enforcement of prison sentences is to be postponed as long as illness or

other physical or mental condition do not make possible an enforcement

in accordance with the nature of the prison sentence. According to S. 20

para. 1 of the Enforcement of Sentences Act, the enforcement of prison

sentences is designed to help convicted persons lead a life-style that

is compatible with ethical standards and the requirements of community

life and to prevent them from pursuing harmful activities, as well as to

make them aware of the unworthiness of the behaviour underlying the

conviction.

      S. 133 para. 1 of the Enforcement of Sentences Act provides for a

suspension of the enforcement of a sentence at a later stage, if

enforcement should have been postponed due to an illness, injury,

disability or other physical or mental condition that had already existed

at the time of admission, and if these conditions persist.

COMPLAINTS

1.    The applicant complains about her detention on remand despite her

serious illness. She alleges that the competent judge at the Vienna

Regional Court delayed the trial against her in order to prolong her

detention on remand.

2.    The applicant further complains about the length of her detention

on remand and, in general, about the length of the proceedings to

determine whether she was fit to serve her prison term sentence.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 29 January 1992 and registered on

6 April 1992.

      On 13 May 1992 the Commission decided to communicate the application

to the respondent Government for observations on the admissibility and

merits.

      On 6 November 1992, after an extension of the time-limit, the

Government submitted their observations, and a corrected version on

13 November 1992.

      On 8 January 1993 the applicant was granted legal aid.

      The observations in reply were submitted by the applicant on

13 April 1993. In these observations she raised her complaints about the

length of her detention on remand, and of the proceedings regarding her

request to postpone the execution of her sentence of 11 May 1992.

THE LAW

1.    The applicant complains that she was detained on remand despite her

serious illness. In this respect, she refers to the decision of the

Vienna Neustadt Regional Court of 21 December 1990 which declared her

unfit to serve her previous prison sentence.

      The Commission has examined this complaint under Article 3 (Art. 3)

of the Convention. Article 3 (Art. 3) provides that "no one shall be

subjected to torture or to inhuman or degrading treatment or punishment".

      The Government contend that the applicant's detention on remand did

not constitute treatment contrary to Article 3 (Art. 3) of the

Convention. They point out that detention on remand and enforcement of

prison sentences serve different purposes. They also submit that the

necessary medical treatment was offered to the applicant in prison and,

in case of an emergency, at the hospital nearby. However, she refused to

accept therapies recommended to her, and failed to take the medication

prescribed to her.

      The applicant contends that, in the course of her detention on

remand, her state of health deteriorated. She denies the efficiency of

her medical surveillance at the Schwarzau prison.

      The Commission recalls that "ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(Art. 3). The assessment of this minimum is, in the nature of things,

relative, it depends on all circumstances of the case, such as the

duration of the treatment, its physical or mental effects and, in some

cases, the sex, age and stage of health of the victim, etc." (Eur. Court

H.R., Ireland v. The United Kingdom judgment of 18 January 1978, Series

A no. 25, page 65, para. 162). Moreover, even the lawful detention of a

sick person may, in certain circumstances, raise problems in regard to

Article 3 (Art. 3) of the Convention, especially by virtue of the way in

which it is being enforced (cf., Bonnechaux v. Switzerland, Comm. Report

of 5.12.79, para. 88, D.R. 18 p. 148).

      The Commission notes that on 21 December 1990, while the enforcement

of the applicant's prison sentence was suspended for health reasons, she

was taken into detention on remand pursuant to S. 180 of the Code of

Criminal Procedure. She continued to be detained on remand until her

conviction on 11 May 1992, when she was sentenced to imprisonment.

      The Vienna Neustadt Regional Court of 21 December 1990, when

deciding to suspend the execution of the previous prison sentence,

proceeded from the findings of an expert opinion according to which the

applicant, due to her serious diseases, could not be requested to

accomplish manual work, which formed part of the enforcement of a prison

sentence. Her sentence could not, therefore, be enforced in conformity

with the aims of a prison sentence, pursuant to S. 5 of the Enforcement

of Sentences Act. The Commission, having regard to the Vienna Court of

Appeal's decision of 26 February 1991, observes that such considerations

were not relevant for the question of the applicant's detention on

remand.

      Moreover, the Commission finds no indication that, in the course of

her detention, the applicant was not offered adequate medical

surveillance and treatment. Rather, there are circumstances showing

negligence on the part of the applicant in accepting the medical

treatment offered to her. Furthermore, expert opinions of 6 May 1992 and

21 September 1993 confirm that the applicant's state of health had not

deteriorated during her preceding detention.

      In these circumstances, the Commission, on the basis of all material

at its disposal, considers that the applicant's detention did not amount

to inhuman or degrading treatment within the meaning of Article 3

(Art. 3) of the Convention.

      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 further complains under Article 5 para. 3 (Art. 5-3)

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

      The Commission notes that the applicant's detention on remand ended,

for the purpose of Article 5 para. 3 (Art. 5-3) of the Convention, on

11 May 1992, when she was convicted by the Vienna Regional Court (see,

Eur. Court H.R., B. v. Austria judgment of 28 March 1990, Series A no.

175, p. 14, para. 36). However, the applicant only submitted this

complaint in her observations in reply dated 13 April 1993, which is more

than six months after that decision.

      This part of the application must, therefore, be rejected under

Article 26, in conjunction with Article 27 para. 3 (Art. 26+27-3), of the

Convention.

3.    Moreover, the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention about the length of the proceedings

regarding her request to postpone the execution of the sentence imposed

on 11 May 1992.

      The Commission notes that the proceedings in question concerned the

execution of the applicant's prison sentence, and did no longer involve

the determination a criminal charge against her. Thus, these proceedings

fall outside the scope of Article 6 (Art. 6) of the Convention.

      It follows that this part of the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

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

      For these reasons, the Commission unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

      (M.F. BUQUICCHIO)                      (A. WEITZEL)