Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17090/90

by F.H.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 31 March 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 16 January 1990

by F.H. against Austria and registered on 19 August 1990 under file No.

17090/90;

Having regard to:

- the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

24 June 1992 and the observations in reply submitted by the

applicant on 30 July 1992;

Having deliberated;

Decides as follows:

THE FACTS

The particular facts of the case

The applicant is an Austrian citizen born in 1941. He is

detained at Graz Prison and is represented before the Commission by Mr.

R. Soyer, a lawyer practising in Vienna. The facts of the case as

submitted by the parties may be summarised as follows:

On 5 January 1989 the Innsbruck Regional Court (Landesgericht)

ordered the applicant's detention on remand on suspicion of serious

fraud offences, involving transactions with bills of exchange,

fraudulent sale of a worthless cleaning business and failure to repay

loans. He had been arrested on 3 January 1989. After an initial

extension of the time permitted for detention, to 5 November 1989, the

Innsbruck Court of Appeal (Oberlandesgericht) on 31 October 1989

extended the permitted period of detention to one year, that is, to 5

January 1990. An application for release which the applicant had made

was unsuccessful, and an appeal was also unsuccessful, the Innsbruck

Court of Appeal giving its decision on 21 December 1989.

According to the Government, on 29 December 1989 the Innsbruck

Regional Court forwarded the case file to the Innsbruck Court of Appeal

with a request for the detention on remand to be reasonably extended.

The applicant submits that the copy of the prosecuting authority's

request which he received was dated 8 January 1990. The request was

granted on 9 January 1990 on the grounds that the case was complicated,

that a high maximum sentence was involved, that an accountant's report

had to be prepared and that there was a high degree of suspicion

(Article 180 para. 1 (3) (b) and (c) of the Code of Criminal Procedure

- Strafprozeßordnung). The period of permitted detention was extended

to 16 months, that is, to 5 May 1990.

On 2 May 1990 the prosecuting authority applied for a further

extension of the permitted period of detention, this time to twenty

months. The Regional Court forwarded the application to the Court of

Appeal on the same day. On 15 May 1990 the Innsbruck Court of Appeal

granted the extension, that is, detention was now permitted to 5

September 1990. The Court considered that it was authorised to take

a decision as to an extension of time after the permitted period had

expired, and referred to a previously decided case (7 BS 47/90

Innsbruck Court of Appeal).

On 28 June 1990 the Supreme Court (Oberster Gerichtshof) rejected

the applicant's request for compensation made under Section 2 sub-

section 1 (a) Criminal Compensation Act 1969 (Strafrechtliches

Entschädigungsgesetz). The Court noted that the applicant had

complained only of the period between 5 and 9 January 1990, and not of

the substantive reasons for his detention on remand. The Court,

referring to a decision it had taken in 1972 (SSt 43/38), found that

the mere fact that the decision to extend the applicant's detention on

remand had been taken a few days too late could not affect the

procedural and substantive lawfulness of his detention on remand. The

Court continued that the purpose of the relevant part of Article 193

para. 4 of the Code of Criminal Procedure (Strafprozeßordnung) was

merely to ensure that an initial application for extension of the

permitted period of detention on remand was not made too early.

The applicant's trial was opened before the Innsbruck Regional

Court on 28 June 1990, when it had to be adjourned for further evidence

to be taken. On 14 November 1990 the applicant was convicted by the

Innsbruck Regional Court and sentenced to 4 years' imprisonment. The

period spent in remand was deducted from the period he would actually

serve. The applicant did not appeal.

Relevant Domestic Law

Code of Criminal Procedure, Article 193

(German)

"(1) Sämtliche am Strafverfahren beteiligten Behörden sind

verpflichtet, darauf hinzuwirken, daß die Haft so kurz wie

möglich dauere.

...

(4) Auf Antrag des Untersuchungsrichters, Vorsitzenden oder

Staatsanwaltes kann der Gerichtshof zweiter Instanz wegen

besonderer Schwierigkeiten oder besonderen Umfanges der

Untersuchung bestimmen, daß [die Haft], wenn es sich ... um ein

Verbrechen handelt, das mit einer fünf Jahre übersteigenden

Freiheitsstrafe bedroht ist, bis zu zwei Jahre dauern dürfe; die

Entscheidung darüber, daß die Haft länger als ein Jahr dauern

dürfe, darf erst innerhalb der letzten sechs Wochen des ersten

Haftjahres getroffen werden.

(5) Die zeitliche Beschränkung der auch oder ausschließlich aus

einem anderen Grund als dem der Verdunkelungsgefahr verhängten

Untersuchungshaft entfällt mit dem Beginn der Hauptverhandlung."

(Translation)

(1) All authorities involved in criminal proceedings are obliged

to ensure that detention is as short as possible.

...

(4) The court of second instance may, on the application of the

investigating judge, the presiding judge or the prosecuting

authority, determine that [detention on remand] may, ... in cases

concerning a crime with a maximum sentence of over five years,

be extended to up to two years if the complexity or scope of the

investigation makes it necessary; the decision that detention on

remand may continue beyond the period of one year may only be

taken within the last six weeks of the first year of detention.

(5) 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."

Criminal Compensation Act, Section 2, sub-section 1 (a)

(German)

"Der Ersatzanspruch besteht, wenn

(a) die Anhaltung des Geschädigten von einem inländischen Gericht

gesetzwidrig angeordnet oder verlängert ... worden ist."

(Translation)

"A claim for compensation exists when

(a) the detention of a person seeking compensation has been

unlawfully ordered or extended by a domestic court ..."

COMPLAINTS

The applicant alleges a violation of Article 5 para. 1 of the

Convention by virtue of the two occasions on which his detention on

remand was retroactively authorised. He also considers that all

detention subsequent to the decision of 9 January 1990 was unlawful

because it was based on an initially unlawful decision.

The applicant also alleges a violation of Article 6 para. 1 in

respect of the length of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 January 1990 and registered

on 29 August 1990.

On 13 January 1992 the Commission decided to invite the parties'

observations on the admissibility and merits of the issues arising

under Article 5 para. 1 of the Convention.

The Government submitted their observations on 24 June 1992 and

the applicant submitted his observations in reply on 30 July 1992.

THE LAW

1. The applicant alleges a violation of Article 5 para. 1

(Art. 5-1) of the Convention in respect of the two periods of detention

from 5 until 9 January and from 5 until 15 May 1990. Article 5

(Art. 5) of the Convention provides, so far as relevant, 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..."

In connection with the question whether the applicant's detention

during these two periods was "in accordance with a procedure prescribed

by law" and "lawful" within the meaning of Article 5 para. 1 (Art. 5-1)

of the Convention, the Government refer principally to a decision of

the Supreme Court (Oberster Gerichtshof) which, in a decision of 20

September 1972 (11 Os 124/72, SSt 43/38), found that the expiry of the

time limits set by Article 193 (4) of the Code of Criminal Procedure

(Strafprozeßordnung) did not, as a matter of law, have any impact on

the legal requirements for detention. The Supreme Court in that case

noted that Article 121 para. 3 of the German Code of Criminal Procedure

(which makes express provision for the suspension of time limits where

an application for extension of detention on remand has been submitted

before the expiry of the time limit) had not been repeated in the

Austrian legislation, but that the aim, that failure to observe the

time limits did not lead to any consequences as to the substantive

justification for the detention, was the same.

The Government underline that in each case the request for an

extension of the detention on remand was made before the time limit

expired, and recall that the question of lawfulness of detention is,

in the first place, a matter for decision by the domestic authorities.

They also refer to the Winterwerp case (Eur. Court H.R., judgment of

24 October 1979, Series A no. 33, p. 21 para. 49) where an interval of

two weeks between the expiry of the earlier order and the making of the

succeeding order was found not to be unreasonable or excessive. As to

the effect of the failure to take the decision to extend the

applicant's detention on remand beyond one year within the final six

weeks of that year, they submit that the aim of the final phrase of

Article 193 para. (4) of the of Code of Criminal Procedure is to

prevent a decision being taken after six months' detention, and that

failure to comply can have no effect on the lawfulness of the

detention.

The applicant contests the relevance of the Supreme Court's

judgment of 20 September 1972. He points out that it relates to the

time limit in Article 193 para. (3) of the Code of Criminal Procedure,

not that in Article 193 para. (4), and considers that the Supreme Court

there clearly envisaged the possibility of violation of constitutional

rights where time limits had not been observed.

In connection with the Winterwerp case, the applicant points out

that the repeated failure to respect the time limits in his case is an

indication that the detention was unreasonable and excessive. He

further points out that in the Wassink case (Eur. Court H.R., judgment

of 27 September 1990, Series A no. 185, p. 12 para. 27) the European

Court of Human Rights interpreted strictly the legal requirements for

detention. As to the final phrase of Article 193 para. 4 of the Code

of Criminal Procedure, he submits that it was the clear intention of

the legislator to provide for a particularly strict test after expiry

of a year's detention, such that failure to comply with the formalities

at this juncture must in any event render subsequent detention

unlawful.

The Commission finds that this complaint raises questions of fact

and law which require an examination of the merits. It cannot

therefore be declared manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for

declaring it inadmissible has been established.

2. The applicant also considers that his detention subsequent

to 9 January 1990 was unlawful and hence in violation of Article 5

(Art. 5) of the Convention because of the failure to decide within the

six weeks provided for in Article 193 para. (4) of the Code of Criminal

Procedure.

Apart from the period 5 - 15 May 1990 with which it has dealt

above, the Commission finds that the detention on remand subsequent to

9 January was both "lawful" and "in accordance with a procedure

prescribed by law" in that the decision of the Innsbruck Court of

Appeal (Oberlandesgericht) of 9 January 1990 gave a basis in law for

"up to 16 months", that is, to 5 May 1990, and the decision of the same

Court of 15 May 1990 provided a legal basis from that date until the

opening of the applicant's trial on 27 June 1990.

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.

3. Finally, the applicant alleges a violation of Article 6

(Art. 6) of the Convention by reason of the length of the proceedings.

The Commission finds that the proceedings against the applicant

must be taken as having begun on 3 January 1989, when he was arrested.

The proceedings ended on 14 November 1990, when the applicant was

convicted.

The Commission notes that the case involved a complex commercial

fraud and that the proceedings as a whole lasted less than two years.

Having regard to the criteria established by the case-law of the

Convention organs on the question of "reasonable time" within Article

6 para. 1 (Art. 6-1) of the Convention - the complexity of the case,

the applicant's conduct and that of the competent authorities - and

having regard to all the information in its possession, the Commission

finds that the length of the proceedings in the present case did not

exceed the "reasonable time" referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE as regards the lawfulness of

the applicant's detention from 5 to 9 January 1990 and from 5 to

15 May 1990, without prejudging the merits, and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

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F.H. v. AUSTRIA

F.H. v. AUSTRIA

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