Lexploria

Application No. 16796/90

by W.P.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 April 1992, 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

B. MARXER

Mr. M. de SALVIA, 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 6 June 1990 by

W.P. against Austria and registered on 28 June 1990 under file No.

16796/90;

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 1925. When the

application was introduced he was detained at Klagenfurt Court prison.

The applicant is represented before the Commission by Mr. H. Walter,

lawyer, of Klagenfurt.

The facts of the application as submitted by the applicant's

representative may be summarised as follows:

The applicant was arrested on 13 September 1989 in connection

with allegations of commercial fraud. On 14 September 1989 the

investigating judge at Klagenfurt Regional Court (Landesgericht)

decided that the applicant could be detained on the ground that there

was a danger of absconding, collusion or committing a further offence,

within the meaning of Article 180 paras. 1, 2 and 3 of the Code of

Criminal Procedure (Strafprozeßordnung).

On 8 March 1990 the Ratskammer (Review Chamber) of the Klagenfurt

Regional Court refused an application by the applicant for his release,

on the ground that there was a danger of his absconding or committing

further offences. On 6 March 1990, pursuant to Article 193 para. 4 of

the Code of Criminal Procedure, the investigating judge requested the

Graz Court of Appeal to permit the applicant's detention on remand to

be extended for up to 9 months. The application was granted on

22 March 1990 because of the "particular difficulty and the particular

extent of the investigation". The court noted that the period of six

months provided for by Article 193 para. 3 of the Code of Criminal

Procedure had expired on 14 March 1990. The court also referred to

expert reports, extensive interviews and investigations in Switzerland.

A plea of nullity to uphold the law (Nichtigkeitsbeschwerde zur Wahrung

des Gesetzes) was rejected by the Attorney General's office (General-

prokurator) on 4 May 1990.

On 18 June 1990 the Graz Court of Appeal, on an application of

7 June 1990 by the investigating judge, permitted the period of

detention on remand to be extended to 12 months, pursuant to Article

193 para. 4 of the Code of Criminal Procedure. The court noted that

the extensive investigations and in particular the investigations

concerning Switzerland, had been particularly complex, and that it was

unlikely that any results would be obtained from requests for

international assistance before the following June. Further, expert

reports had been requested, and it was necessary to hear further

witnesses. The court noted that the position had not changed since its

decision of 2 March 1990.

On 24 August 1990 the Graz Court of Appeal dealt with appeals by

the applicant and the prosecution against a decision of the Ratskammer

of 26 July 1990, and with a request from the prosecution for the

applicant's detention on remand to be extended to up to 15 months.

As to the appeals against the decision of the Ratskammer of

26 July 1990, the Court of Appeal rejected the applicant's contention

that there was no danger of his absconding and, pursuant to the

prosecution's request, added to the grounds for detention the ground

that there was a danger of the applicant committing further offences

if released.

As to the application by the prosecution that the maximum

detention be extended to 15 months, the court noted that the 12 months

permitted detention would expire on 14 September 1990, and further

noted that the results of international assistance requested were still

outstanding. The indictment had not yet been prepared. The court

noted that the grounds for detention established in connection with the

applicant's request for release (decision of the Ratskammer of 26 July

1990) were present and agreed to the extension.

On 17 December 1990 the Graz Court of Appeal rejected a complaint

by the applicant against a decision of the Ratskammer of 29 November

1990 and, at the same time, granted applications by the prosecution of

11 December 1990 and by the investigating judge of 12 December 1990,

that the maximum permitted detention on remand be extended to 21

months. The court noted that the indictment (which had been

challenged) had put the amount at issue at some AS 750,000,000 (inter

alia). The Court of Appeal noted that there had been no change in the

grounds for detention since 24 August 1990, but that since 13 September

1990 the applicant had been in hospital in Klagenfurt. In rejecting

the applicant's appeal against the Ratskammer decision of 29 November

1990, the court expressly confirmed that there was a continued danger

of the applicant committing further offences. As to the request for

extension of the maximum period of detention on remand, the court noted

that the grounds for detention remained unchanged, that the most recent

extension (of 24 August 1990) had expired on 14 December 1990 and, by

further reference to the extraordinary scope and particular

difficulties of the investigation, found it permissible for the

detention on remand to be extended to up to 21 months. The court found

that it could decide on the extension the detention on remand after the

previous period had expired because the application for an extension

had been made before expiry of the previous period. The Court of

Appeal found that, given the amount at issue and the likely sentence,

it was not disproportionate for the detention on remand to be

continued.

On 20 January 1991, the applicant's representative learned that

the applicant had absconded from the hospital where he was held. The

applicant has not been seen since.

On 11 February 1991, a further plea of nullity for maintaining

the law was rejected by the Attorney General. The applicant's

objection to the indictment was rejected on 14 February 1991.

On 6 November 1991 the applicant's representative indicated that

he was not aware of the applicant's address.

COMPLAINTS

In his application of 7 June 1990, the applicant alleged

violation of Article 5, in particular Article 5 para. 3, and Article

6 paras. 1 - 3 of the Convention. He complained about the length of

the detention on remand and alleged that the courts had failed

adequately to establish whether the grounds for continued detention

were present.

In addition to his original complaints, on 21 September 1990 the

applicant complained of the participation of the prosecution at the

hearing of 24 August 1990 even though he could not be present; on

13 December 1990 the applicant for the first time expressly alleged a

violation of Article 5 para. 1 (c) of the Convention, noting that the

detention authorised by the decision of the Graz Court of Appeal of

24 August 1990 had expired at 10.00 hours on 14 December 1990. On 14

February 1991 the applicant alleged a violation of Article 3 of the

Convention by virtue of the continuing detention on remand.

PROCEEDINGS BEFORE THE COMMISSION

On 18 January 1991 the Commission declined to take any interim

measures pursuant to a request by the applicant of 12 December 1990.

REASONS FOR THE DECISION

The applicant has complained under Articles 3, 5 and 6 of the

Convention in connection with various aspects of his detention on

remand and the related proceedings.

The Commission notes that the applicant absconded from the

hospital where he was held whilst on detention on remand. Neither the

applicant nor his representative has submitted any indication of the

applicant's present address.

The Commission finds that it is no longer justified to continue

the examination of the application, and further considers that respect

for human rights as defined in the Convention does not require the

continuation of the examination.

It follows that the application may be struck off the list of

cases pursuant to Article 30 para. 1 of the Convention.

For these reasons, the Commission unanimously

DECIDES TO STRIKE THE APPLICATION off its list of cases

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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