Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20696/92

by E.R.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 8 January 1993, the following members being present:

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

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

G.B. REFFI

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 19 June 1992 by

E.R. against Austria and registered on 28 September 1992 under file No.

20696/92;

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 applicant is an Austrian citizen born in 1957 and presently

detained on remand in the prison of St. Pölten.

The applicant was arrested on 13 June 1991 and his subsequent

repeated requests to be released were to no avail. On 25 June 1992 the

Vienna Court of Appeal (Oberlandesgericht) rejected an appeal lodged

by the applicant against a decision of 3 June 1992 by the St. Pölten

Regional Court (Landesgericht), refusing his latest requests for

release.

It is stated in the Court of Appeal's decision that the applicant

is suspected of having, on a professional basis, and within a period

of about three years, exercised fraudulent business activities causing

some 8.2 million Austrian Shillings of damages to about 242 contract

partners. The Court of Appeal referred to an earlier decision of

24 March 1992 in which it was explained in detail that there were

strong suspicions against the applicant. It added that meanwhile

further evidence had been obtained, in particular from witnesses H. and

S. This evidence and an expert opinion showed that the applicant had

sold investment certificates (Wohnsparbriefe) pretending that the

investors thereby acquired a participation in firms which he pretended

would place the money in the apartment construction business while in

reality not a single shilling was used for the alleged purpose.

The Court also considered that there was danger of absconding in

view of the severe sentence which the applicant had to face and in view

of the fact that on 18 March 1991 he had informed the competent

authorities of a change of address. His new address was in Luxembourg

and there was not only suspicion that he would try to leave Austria,

but also that he would try to continue his fraudulent activities

abroad.

In the meanwhile an indictment has been filed and in his latest

submission the applicant stated that the first hearing of the trial was

to take place on 10 September 1992.

COMPLAINTS

The applicant complains that his latest request for release was

decided by the first instance court on 3 June 1992 without hearing his

defence counsel and without giving him the possibility to attend the

hearing in person. He further considers that his detention is

unjustified and that its duration exceeds a reasonable time. He

invokes Article 5 paras. 1, 3 and 4 and Article 6 paras. 1 and 2 of the

Convention. The applicant also alleges that a letter from the

Commission's Secretariat reached him after having been opened by the

judge controlling his correspondence.

THE LAW

1. The applicant first complains that his written request for

release was decided without giving him or his defence counsel a

possibility to attend a hearing.

According to the case-law of the European Court of Human Rights,

the review of the lawfulness of detention as required by Article

5 para. 4 (Art. 5-4) of the Convention has to comply with both

substantive and procedural rules of the national legislation and must

moreover be conducted in conformity with the aim of Article 5 (Art. 5),

namely to protect the individual against arbitrariness (cf. Keus

judgment of 25 October 1990, Series A No. 185-C, p. 66, para. 24).

Article 5 (Art. 5) does not necessarily require an oral hearing of the

parties (cf. Neumeister judgment of 27 June 1968, Series A No. 8, p.

44, para. 24). Depending on the particular circumstances the

possibility of making written submissions in the context of an

adversarial procedure may suffice (cf. Sanchez-Reisse judgment of 21

October 1986, Series A No. 107, p.19, para. 51). In the present case

there is nothing to show that the applicant did not have the

possibility to state reasons for his request or that in rejecting it

the Austrian Court arbitrarily disregarded them. The applicant has

furthermore not shown that the principle of equality of arms was

violated in his case.

It follows that there is no appearance of a violation of the

provisions invoked by the applicant and this part of the application

has to be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention as being manifestly ill-founded.

2. The applicant further complains of the length of his still

continuing detention on remand which began on 13 June 1991. He invokes

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

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

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

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

To this end they must examine all the facts arguing for and 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 applications for 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 decide whether or not there has

been a violation of Article 5 para. 3 (Art. 5-3) of the Convention (cf.

Eur.Court H.R., Neumeister judgment of 27 June 1968, Series A No. 8,

p.37, paras.4-5).

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 (see Eur. Court H.R., Stögmüller judgment

of 10.November 1969, Series A No. 9, p. 40, para. 4).

The grounds relating to the public interest cited by the national

judicial authorities may be sufficient to justify keeping a person in

detention pending trial but with time the grounds for detention will

themselves diminish in pertinence when balanced against the right to

liberty guaranteed by Article 5 (Art. 5) of the Convention to the

person provisionally detained (cf. Eur. Court H.R., Toth, judgment of

12 December 1991, Series A no. 224, p.18 para. 67; and Clooth judgment

of 12 December 1991, Series A no. 225, p. 16 para. 36).

As to the reasons given by the domestic authorities the

Commission considers that they justify the continued detention in view

of the evidence against the applicant which strengthens the suspicion

against him. Also, the fact that the applicant had indicated an

address in Luxembourg could reasonably lead the authorities to assume

that there was not only danger of absconding but also a danger that the

applicant would commit further offences.

As to the handling of the case by the authorities the Commission

notes that the applicant himself has not alleged any particular

circumstances tending to show that the authorities delayed the

investigations. In fact the matter seems to be of a complex nature,

given the great number of victims and the period of about three years

over which the suspected fraudulent activities were carried out. The

Commission cannot in the circumstances find that the authorities did

not actively pursue their investigations.

Assessing the period in question generally the Commission finds

in view of the foregoing that the period of detention on remand in

question does not appear to be unreasonable such as to amount to a

possible violation of Article 5 para. 3 (Art. 5-3) of the Convention.

It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para.2

(Art. 27-2) of the Convention.

3. As to the alleged control of correspondence the Commission notes

that the applicant has been in a position to return the application

form and to submit all information and documents relating to his

complaints. It cannot in these circumstances be found that the

applicant was in any way hindered in the effective exercise of his

right under Article 25 (Art. 25) of the Convention to lodge and pursue

the petition.

For these reasons, the Commission unanimously

1. DECLARES THE APPLICATION INADMISSIBLE.

2. FINDS that no action is required with regard to the

applicant's allegation that he has been hindered

in the effective exercise of his right of petition

under Article 25 (Art. 25) of the Convention.

Secretary to the First Chamber President of the First Chamber

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

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E.R. v. AUSTRIA

E.R. v. AUSTRIA

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