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E. v. AUSTRIA

Doc ref: 10668/83 • ECHR ID: 001-359

Document date: May 13, 1987

  • Inbound citations: 22
  • Cited paragraphs: 0
  • Outbound citations: 1

E. v. AUSTRIA

Doc ref: 10668/83 • ECHR ID: 001-359

Document date: May 13, 1987

Cited paragraphs only



AS TO THE ADMISSIBILITY OF

Application No. 10668/83

by H.E.

against Austria

        The European Commission of Human Rights sitting in private on

13 May 1987, the following members being present:

                    MM. J.A. FROWEIN, Acting President

                        G. SPERDUTI

                        M.A. TRIANTAFYLLIDES

                        G. TENEKIDES

                        S. TRECHSEL

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                        H. VANDENBERGHE

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

                   Mr.  F. MARTINEZ

                   Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 24 October 1983

by H.E. against Austria and registered on 12 December 1983 under file

No. 10668/83;

        Having regard to:

-       the report provided for in Rule 40 of the Rules of Procedure

        of the Commission;

-       the observations submitted by the respondent Government on

        15 March 1985 and the reply thereto submitted by the applicant

        on 22 April 1985;

-       the further observations of the applicant submitted on

        19 June and 1 December 1986 and 20 March 1987, and of the

        Government submitted on 21 and 24 July and 15 December 1986

        and 16 April 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as submitted by the parties, may be

summarised as follows:

        The applicant, an Austrian citizen born in 1956, is an

insurance employee resident at L./Austria.  Before the

Commission he is represented by Dr.  Binder, a lawyer practising in

Linz.

        On 6 November 1981 the applicant's wife notified the police of

the behaviour of the applicant's brother.  She claimed that the latter

had injured her husband, the applicant, on the same day by pushing him

through a glass door.  The applicant himself confirmed this statement

before the police.  The applicant's brother denied having pushed the

applicant.

                                 I.

        A charge of bodily harm was then brought against the

applicant's brother.

        On 7 July 1982 a hearing was held before the District Court

(Bezirksgericht) of Linz-Land during which the applicant was heard as a

witness.  In his testimony he stated that on 6 November 1981, in the

course of a dispute between his brother and himself, his brother had

pushed him against a glass door whereupon he, the applicant, had

suffered a severe cut on his hand.  The applicant also stated that his

wife had seen these events.

        The case was then transferred to the Linz Regional Court

(Landesgericht), where on 27 April 1983 a hearing was held.

        The applicant, who was again heard as a witness, then stated

that, upon reflection, he was of the opinion that there were still

other possibilities of how he could have crashed into the glass door.

The applicant was then confronted with his statements of 7 July 1982

and asked to declare whether they were "correct", "incorrect" or

"possible".  The applicant now stated with regard to most statements

that they were "possible", but that he was no longer certain.

        In answer to the Court's question whether he had actually been

pushed by his brother, he said that he no longer knew.  The

procès-verbal of the hearing, which has been certified by the

Regional Court and submitted by the applicant, continues verbatim:

        "Witness: 'I regard my statement which I made today

        as correct and I uphold it.'

        The judge orders:  the imposition of temporary custody

        (vorläufige Verwahrungshaft) upon the witness (the applicant)

        on suspicion of false testimony according to S.288 of the

        Austrian Criminal Code in today's hearing, the reasons of

        custody being the danger of repetition in case the proceedings

        cannot be brought to an end today, and the danger of collusion

        in view of the influence which cannot be excluded, upon a

        witness who has not appeared today, Mrs.  A.E.

        At 09.55 hours the witness is temporarily remanded in custody."

        In the applicant's submissions the witness Mrs.  A.E. was

subsequently not heard.

        The applicant was remanded in custody until the next day,

28 April 1983, 14.15 hours.  The applicant was then interrogated

by the investigating judge and, after having given a solemn promise

(Gelöbnis), released at 15.00 hours.

        On 26 July 1983 the Linz Regional Court acquitted the applicant

of the charge of false testimony.  In the submission of the applicant's

representative, this decision was only given orally during the hearing

and not in writing.

                               II.

        On 27 April 1983, after the hearing in which the arrest

occurred,  the Regional Court convicted the applicant's brother of

bodily harm and sentenced him to a conditional fine of 54,000 Austrian

Schillings (AS).  Upon appeal, the Linz Court of Appeal (Oberlandes-

gericht) quashed the judgment and acquitted the applicant's brother on

15 September 1983.  The Court found that there was doubt as to the

exact course of events and that the available evidence was inconclusive,

in particular as during the appeal proceedings all witnesses had availed

themselves of their right as relatives to refuse to give evidence.

                               III.

        The applicant thereupon filed with the Salzburg Regional Court

an official liability action in which he complained, inter alia, that

the temporary custody imposed on him on 27 April 1983 had not complied

with Article 5 para. 1 of the Convention in that it had been illegal

under Austrian law and had served merely as a sanction for his change

of statement.

        On 29 November 1985 the Regional Court upheld the action and

awarded him the amount of 7,307.80 AS which included the costs of the

proceedings.  The Court found, on the one hand, that at the hearing on

27 April 1983 the judge concerned had correctly assumed a suspicion of

false testimony.  On the other hand, the danger of repetition assumed

by the judge had become irrelevant since he had been able to terminate

the proceedings on the same day.  Moreover, the view could not be

maintained that there had been a danger of collusion in respect of

Mrs.  A.E. since the latter had in fact not been heard and had, as the

wife of the applicant's brother, exercised her right to refuse to

testify already on 7 July 1982 before the Linz District Court.  The

mere possibility of a danger of collusion on the applicant's part did

not meet the conditions stated in S.175(3) of the Code of Criminal

Procedure.  The Court concluded that official liability presupposed

only light culpability (leichtes Verschulden) and everybody could

claim compensation who had been illegally arrested.  It therefore

upheld the applicant's claim.

        The appeal (Berufung) against this decision filed by the

Austrian Republic, represented by the Finance Procurator, was

dismissed on 15 April 1986 by the Linz Court of Appeal which found

that the view of the judge who had ordered the applicant's arrest was

indeed untenable.  The Court awarded the applicant 1,258.40 AS as

costs for the appeal proceedings.

IV.

        Meanwhile, the Attorney General (Generalprokurator) filed

with the Supreme Court (Oberster Gerichtshof) a plea of nullity for

safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des

Gesetzes).  This plea of nullity concerned the original decisions of

the Linz Regional Court of 27 April 1983 in particular the grounds

adduced when imposing temporary custody, as well as of the

investigating judge of 28 April 1983.  The plea of nullity did not

relate to the official liability proceedings instituted by the

applicant.

        On 11 December 1986 the Supreme Court upheld the plea of

nullity.  It found, in particular, that in respect of the imposition

of temporary custody according to S.277 of the Code of Criminal

Procedure it was unnecessary to adduce any further grounds of

detention stated in S.175 of the Code.  Accordingly, by relying on the

danger of repetition and of collusion as grounds of detention, on

27 April 1983, the judge had violated the law.  Moreover, the law had

also been violated in view of the fact that on 28 April 1983 the

investigating judge had released the applicant after the latter had

given a solemn promise.  Such a promise was only required in the case

of release from detention on remand whereas in the present case which

concerned temporary custody the conditions for detention on remand,

i.e. the danger of repetition and of collusion, had not been met in

the first place.

COMPLAINTS

1.      The applicant complains under Article 5 para. 1 (c) of the

Convention that his temporary custody was illegal.  He alleges in

particular that, even in respect of the offence of false testimony

referred to in S.277 of the Code of Criminal Procedure, temporary

custody can only be imposed if one of the further conditions in

S.175(1) of that Code has been met, inter alia, a danger of repetition

or collusion.  However, it was logically impossible that there existed

in his case a danger of repetition in view of the fact that he had

already completed his testimony.  The danger of collusion was

logically impossible inasmuch as, after he had given testimony at the

hearing, the court closed the proceedings without hearing further

witnesses and later, in its judgment, regarded his testimony as

irrelevant.

2.      The applicant also complains under Article 5 para. 1 of the

Convention that, contrary to S.179(1) of the Austrian Code of Criminal

Procedure, he was not brought before the investigating judge within 24

hours.  In his case, his custody considerably exceeded this

time-limit.

3.      The applicant finally complains under Article 5 para. 4 of the

Convention that there was no remedy, in particular no judicial or

administrative proceedings, available to him under Austrian law which

could have enabled him to have the lawfulness of his custody examined.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 24 October 1983 and

registered on 12 December 1983.

        On 4 December 1984 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits

pursuant to Rule 42 para. 2 (b) of the Rules of Procedure.

        The Government's observations were submitted on 15 March 1985

and the reply thereto was submitted by the applicant on 22 April 1985.

        On 8 July 1985 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application.

        On 16 April 1986 the applicant submitted the decision of the

Salzburg Regional Court of 29 November 1985 upholding his official

liability action.  Following further submissions of the Government on

22 April 1986 and the applicant on 23 April 1986 the President

decided on 23 April 1986 to cancel the hearing, pending the official

liability appeal proceedings before the Linz Court of Appeal.

        Further observations were submitted by the applicant on

19 June and 1 December 1986 and by the Government on 21 and 24 July

and 15 December 1986.

        In respect of the decision of the Supreme Court of

11 December 1986 the applicant submitted further observations on

20 March 1987 and the Government on 16 April 1987.

SUBMISSIONS OF THE PARTIES

A.      The respondent Governemnt&S

1.      The respondent Government examine the issues primarily on the

basis of the English wording of Article 5 para. 1 (c), of the

Convention since, unlike the French version, the English text

explicitly speaks of "the lawful arrest or detention".  In the

Government's submissions, this means that the consistency of an act of

arrest or detention with Article 5 para. 1 (c) depends on it being

covered by national legal provisions.  For their part these national

legal provisions must keep within the limits of the powers to restrict

the fundamental right to personal liberty admissible under Article 5

para. 1 (c).

        S.277 of the Code does not explicitly stipulate as a

prerequisite of arrest the presence of one of the reasons of custody

listed in S.175(1).  The latter provision also comprises being caught

in flagrante delicto (S.175(1)(1) of the Code of Criminal

Procedure).   This reason of custody is of course always present in

the case contemplated in S.277, which provides sufficient legal cover

for having a witness arrested where there is a probability of false

testimony.  The further requirement to bring the witness before the

investigating judge as soon as possible is a sufficient guarantee

against any unjustified prolongation of his detention, because the

investigating judge can only maintain the detention in accordance with

the requirements of S.180 of the Code of Criminal Procedure - as

detention pending investigation - if there is a sufficient reason for

custody, and it must be noted that S.180(2) only lists danger of

absconding (sub-para. 1), danger of collusion (sub-para. 2) and danger

of repetition or perpetration (sub-para. 3) as grounds for detention

pending investigation but does not list being caught in flagrante

delicto, which is enough to justify temporary custody.

        Detention under S.277 of the Code of Criminal Procedure, then,

is a lawful arrest effected for the purpose of bringing the prisoner

before the competent legal authority because there is reasonable

suspicion that he has committed an offence.  Section 277 of the Code

of Criminal Procedure is therefore consistent with Article 5 para. 1

(c) of the Convention.

2.      The Government point out that the applicant has obtained, by

means of an official liability action, a decision of the Salzburg

Regional Court of 29 November 1985, which was confirmed on

15 April 1986 by the Linz Court of Appeal.  Thereby these Courts

declared that the imposition of temporary custody had been illegal and

awarded compensation to the applicant.  Thus, the applicant can no

longer claim to be a victim, in particular, since the violation of the

Convention has been determined by domestic authorities.

        If the Supreme Court on 11 December 1986 found that on

27 April 1983 the judge concerned had adduced further - inexistent -

reasons when imposing temporary custody, this is irrelevant for the

present application since one ground of detention will suffice for a

detention to be lawful.  The violation of Austrian law was not

therefore detrimental to the applicant and, accordingly, the

Convention has not been violated.

        Nevertheless, the compensation award in the official liability

proceedings has become final, even if it is based on an incorrect view

of the law, as the decision of the Supreme Court demonstrates.

Accordingly, the applicant can no longer claim to be a victim within

the meaning of Article 25 of the Convention.

3.      The Government also point out that currently an amendment to

S.277 of the Code of Criminal Procedure is being discussed in

Parliament, according to which the imposition of temporary custody on

account of false testimony should be restricted to the cases of a

danger of collusion and of repetition, as provided for in S.175(1) and

(3) of the Code.

B.      The applicant&S

1.      The applicant submits that the custody imposed on him

violated SS.175 and 277 of the Code of Criminal Procedure and was

therefore not lawful within the meaning of Article 5 para. 1. of the

Convention.  Arrest according to S.277 is only possible if there is a

probability that a witness knowingly gave false testimony.  These

criteria were not met in the instant case.

        Before the Regional Court the applicant had corrected his

testimony in view of the fact that he had frequently thought about the

occurrences and had looked at the locality where they had happened.

Following these considerations, the applicant was on 27 April 1983 no

longer sure whether he had been pushed by his brother.  In this light,

it cannot be said that one of the two statements was incorrect.  There

is no indication whatever that the applicant had knowingly, i.e.

against his better knowledge, given an incorrect statement.  Yet this

is precisely the condition stated in S.277 of the Code of Criminal

Procedure.

        In addition temporary custody may be imposed if an additional

reason in the sense of S.175(1) is given.  While the actual text of

the law does not state this expressis verbis, it is the prevailing

view in Austrian doctrine and jurisprudence.  In the present case

custody was imposed on the grounds of the danger of collusion and

repetition.  Neither danger actually existed.

2.      The applicant submits that the official liability action does

not constitute an effective remedy within the meaning of Article 26 of

the Convention.  The applicant continues to be a victim within the

meaning of Article 25 of the Convention since it is irrelevant under

this provision if the injustice emanating from the violation amounts

to a concrete damage or disadvantage for the applicant.  In particular

he continues to remain a victim in view of the temporary custody which

was imposed on him.  The compensation which has been awarded does not

change this.  If the Supreme Court on 11 December 1986 decided that

temporary custody on account of false testimony as in S.277 of the

Code of Criminal Procedure could be imposed regardless of the further

conditions in S.175 of the Code, this would mean that it would fall to

the court's discretion whether or not to impose temporary custody.

This however would be contrary to Article 5 para. 1 (c) of the

Convention.

THE LAW

1.      The applicant has complained under Article 5 para. 1 (Art.

5-1) of the Convention that his temporary custody was illegal.  He

alleges in particular that S.175(1) of the Code of Criminal Procedure

was incorrectly applied inasmuch as it was logically impossible that

there existed in his case a danger of repetition or of collusion.  As

regards the decision of the Regional Court of 29 November 1985

awarding him compensation, he submits that the official liability

action which he brought does not qualify as a remedy within the

meaning of Article 26 (Art. 26) of the Convention.  Moreover, it is

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

injustice emanating from the violation results in a concrete damage or

disadvantage for the applicant since he continues to remain a victim

in view of the illegal custody imposed on him.

        The Government have submitted that the applicant can no longer

claim to be a victim within the meaning of Article 25 (Art. 25) of the

Convention since as a result of his official liability action he has

received compensation by the Austrian Courts for his temporary

custody.  This award has become final and is not affected by the

decision of the Supreme Court of 11 December 1986.

        Under Article 25 para. 1 (Art. 25-1) of the Convention the Commission

"may receive petitions ... from any person ... claiming to be a victim of the

rights set forth in (the) Convention".

        The Commission recalls its case-law according to which it

falls first to the national authorities to redress any alleged

violation of the Convention.  As in many cases the violation itself

can no longer be wiped out with retroactive effect, only reparation

will be possible.  Such a reparation may then constitute a means

whereby a State can redress the alleged violation of the Convention

(see No. 5575/72, X. v.  Austria, Dec. 8.7.75, D.R. 1 p. 45).

        In this regard, the question whether or not an applicant can

claim to be a victim under Article 25 (Art. 25) of the Convention of the

violation alleged is relevant at all stages of the proceedings under

the Convention (cf.  Preikhzas v. the Federal Republic of Germany,

Comm.  Report 13.12.78, para. 84, D.R. 16 p. 16).

        In the present case the Commission notes that the applicant

filed before the Salzburg Regional Court an official liability action

against the Republic of Austria on the ground that his custody had

been illegal and had served merely as a sanction for his change of

statement.  The Court upheld his action on 29 November 1985 and

awarded him the amount of 7,307.80 AS which included the costs of the

proceedings.  This decision was confirmed by the Linz Court of Appeal

on 15 April 1986 which awarded the applicant 1,258.40 AS as costs for

the appeal proceedings.

        The Salzburg Regional Court found in particular that the mere

possibility of a danger of collusion on the applicant's part did not

meet the condition for detention mentioned in S.175(1)(3) of the Code

of Criminal Procedure, and that everybody who underwent an illegal

detention was entitled to compensation.  The Linz Court of Appeal held

that the view of the judge who had ordered the applicant's arrest was

untenable.

        It is true that the Supreme Court found on 11 December 1986,

inter alia, that in respect of the imposition for temporary custody on

the applicant according to S.277 of the Code of Criminal Procedure it

was unneccessary to adduce any further grounds of detention stated in

S.175 of the Code.  However, the Commission notes that this decision

concerned the original decisions of the Linz Regional Court of

27 April 1983 and of the investigating judge of 28 April 1983.  The

decision of the Supreme Court did not relate to the official liability

proceedings resulting in the decisions of the Salzburg Regional Court

of 29 November 1985 and of the Linz Court of Appeal of 15 April 1986.

The latter decisions are final.

        As a result, the applicant has, by employing domestic remedies

available to him, received compensation for the alleged violation.  In

addition, he has obtained the satisfaction that the national courts

found his custody illegal under domestic law.

        In these circumstances, the Commission considers that the

applicant has obtained adequate redress at the domestic level for the

violations which he now alleges before the Commission.  The Commission

concludes that the applicant can therefore no longer claim to be a

victim of the alleged violations within the meaning of Article 25

(Art. 25) of the Convention (see mutatis mutandis Nos. 5577-5583,

Dec. 15.12.75, D.R. 4 p. 4).

        It follows that the application is in this respect manifestly

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

Convention.

2.      The applicant has also complained under Article 5 para. 1

(Art. 5-1) of the Convention that his custody was illegal under

Austrian law insofar as he was not brought before the investigating

judge until 28 hours after temporary custody was imposed on him, and

not within 24 hours as required by S.179(1) of the Code of Criminal

Procedure.

        The Commission notes that the Regional Court on

29 November 1985 and the Court of Appeal on 15 April 1986 both

referred to this complaint, while apparently not entering into it

independently of the complaint concerning the grounds for the

applicant's detention.  An issue arises therefore whether also in

respect of this complaint the applicant can claim to be a victim

within the meaning of Article 25 (Art. 25) of the Convention.  The

Commission nevertheless decides not to resolve this issue since this

complaint is in any event manifestly ill-founded for the following

reaons:

        According to S.179(1) of the Code of Criminal Procedure an

accused must be brought within 24 hours before the investigating

judge.  S.179(1) continues:

        "If this is not possible, the accused may remain temporarily

        in custody, but his interrogation must take place as soon as

        possible, at the latest within three days, and the reasons

        for which the interrogation could not take place must be

        stated in the minutes."

        The applicant's custody which lasted 28 hours thus

uncontestedly fell within the limits of this part of S.179(1).

Moreover, the applicant has not complained that no reasons for the

delay were stated in the minutes.

        As a result, the complaint at issue does not dislose any

appearance of a violation of the rights set out in Article 5 para. 1

(Art. 5-1) of the Convention.  It follows that the application is also

in this respect manifestly ill-founded within the meaning of Article

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

3.      The applicant has complained under Article 5 para. 4 (Art.

5-4) that there is no remedy under Austrian law which would have

enabled him to have the lawfulness of his custody examined.

        The Commission has just found that the applicant has received

compensation by a decision of the Salzburg Regional Court which was

confirmed by the Linz Court of Appeal and that he therefore could no

longer claim to be a victim in respect of the alleged unlawfulness of

his temporary custody under Article 5 para. 1 (Art. 5-1) of the Convention.

Even assuming that an issue arises under Article 5 para. 4 (Art. 5-4) of the

Convention, the Commission finds that for the same reason the applicant can in

respect of the present complaint also no longer claim to be a victim of the

alleged violation within the meaning of Article 25 (Art. 25) of the Convention.

        It follows that also in this respect the application is manifestly

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

Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission      Acting President of the Commission

          (J. RAYMOND)                            (J.A. FROWEIN)

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