FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67175/01 by Karl REINPRECHT against Austria

The European Court of Human Rights (Fourth Section) , sitting on 8 April 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mrs E. Steiner , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 25 August 2000 ,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Karl Reinprecht, is an Austrian national, who was born in 1966 and lives in Graz ( Austria ). He is represented before the Court by  Mrs C. Lanschützer, a trial lawyer practising in Graz ( Austria ).

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

On 5 May 2000 the Graz Regional Court ( Landesgericht ) imposed detention on remand on the applicant on suspicion of attempted sexual coercion ( geschlechtliche Nötigung ). The court based the suspicion against the applicant on the statement of the victim who identified the applicant at an identification parade. Further, the Investigating Judge considered, referring to the applicant’s criminal record, that the applicant was very likely to relapse into crime and found that, therefore, there was a risk that he might commit an offence similar to the one he was suspected of ( Tatbegehungsgefahr ) .

On 19 May 2000 the Graz Regional Court held a hearing on the continuation of the detention on remand in the presence of the Public Prosecutor, the applicant and his defence counsel and prolonged the applicant’s detention on remand. Referring to the testimony of the victim, it found that there was a reasonable suspicion against the applicant. Further, there was a risk that he might commit an offence similar to the one he was suspected of. The court stated that the applicant had nine previous convictions, mainly concerning offences against property but recently also concerning violent crimes. In November 1992 he had been convicted of aggravated robbery ( schwerer Raub ) and had been sentenced to eight years’ imprisonment. After his release in December 1999 he had once been suspected of attempted rape and of sexual coercion but these proceedings had been discontinued. In 2000 he had been convicted of offences under the Drugs Act and was sentenced to four months’ and two weeks’ imprisonment. The court found that, in the light of his repeated relapse into crime and the character of the applicant, the prolongation of the detention on remand was reasonable. The applicant filed an appeal against this decision.

On 7 June 2000 the Graz Court of Appeal ( Oberlandesgericht ), sitting in camera, dismissed the appeal and confirmed the Regional Court ’s decision.

On 19 July 2000 the Graz Regional Court , after having held a hearing, dismissed a request for release of the applicant and ordered the continuation of his detention on remand. The applicant filed an appeal against this decision.

On 20 July 2000 the applicant filed another request for release. He stressed that there were no reasons to maintain the detention on remand.

On 27 July 2000 the Public Prosecutor’s Office ( Staatsanwaltschaft ) lodged the bill of indictment. The applicant filed an appeal against it.

On 2 August 2000 the Graz Regional Court held a hearing on the continuation of the detention on remand and prolonged the applicant’s detention on remand.

On 7 August 2000 the applicant filed an appeal against this decision. He submitted, that there was no reasonable suspicion against him as the testimony of the only witness for the prosecution had been contradictory.

On 17 August 2000 the Graz Court of Appeal, sitting in camera, dismissed the applicant’s appeal against the bill of indictment and the appeals against the Regional Court ’s decisions of 19 July 2000 and of 2 August 2000 . It found that there was no doubt about the credibility of the witness and that therefore there was a reasonable suspicion against the applicant. Further, it confirmed the Regional Court ’s repeated finding that  reasons for detention on remand ( Haftgründe ) existed.

On 18 September 2000 the applicant lodged a fundamental rights complaint ( Grundrechtsbeschwerde ) with the Supreme Court ( Oberster Gerichtshof ) against this decision. He submitted that there was no strong suspicion against him and that there were no reasons to maintain the detention on remand. Further he submitted that the detention on remand was unlawful as he had been arrested by the police without any arrest warrant having been issued by a court.

On 16 October 2000 the Supreme Court, sitting in camera, dismissed the complaint and found that there was no doubt about the credibility of the witness and that reasons for the applicant’s detention on remand existed. As regards the submission that the arrest of the applicant was unlawful, it found that it was not the competent court to decide on this issue.

On 24 October 2000 the Regional Court , sitting with two professional and two lay judges, held a public hearing, convicted the applicant of attempted sexual coercion and sentenced him to two years’ imprisonment. It based its finding on the statement of the victim and, as regards the personality development of the applicant, on a medical expert opinion.

The applicant filed a plea of nullity as well as an appeal against sentence. The Public Prosecutor also filed an appeal against sentence.

On 8 March 2001 the Supreme Court rejected the plea of nullity.

On 8 May 2001 the Court of Appeal dismissed the applicant’s appeal but allowed the Public Prosecutor’s appeal and increased the term of imprisonment to two years and six months.

B. Relevant domestic law

Section 182 of the Code of Criminal Procedure ( Strafprozeßordnung ) provides that an investigating judge conducts a private adversarial hearing on the continuation of a detention on remand. The court has to summon the accused, who has to be assisted by counsel at the hearing, and the public prosecutor.

The Court of Appeal, when dealing with appeals against decisions of the investigating judge concerning detention on remand, takes its decision sitting in private pursuant to Section 114 of the Code of Criminal Procedure.

COMPLAINTS

The applicant complains that his health was at risk during his detention as he was arrested together with a person infected with hepatitis C.

Under Article 5 § 1 (c) of the Convention he complains about his detention on remand. He submits that there was no reasonable suspicion against him and that there existed no danger that he might commit an offence similar to the one he was suspected of. In this respect he also relies on Article 6 § 2.

Further, he complains under Article 6 of the Convention that the proceedings were unfair in that they were influenced by the media coverage of the case.

Under Article 6 § 1 Convention he complains that the hearings on the continuation of the detention on remand were not held in public.

THE LAW

1. The applicant complains that during his detention on remand his health was at risk as a detainee infected with hepatitis C had been placed in his cell. The Court finds that this complaint may raise an issue under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

However, in accordance with Article 35 § 1 of the Convention “the court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

In the present case, the applicant did not file any complaint in this matter with the domestic authorities, in particular, he did not file a complaint under the Execution of Sentences Act ( Strafvollzugsgesetz ).

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant complains under Article 5 § 1 (c) about his allegedly unlawful arrest and detention on remand as there was no reasonable suspicion against him. Article 5 § 1 (c) of the Convention, insofar as relevant, reads 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; ...

The Court reiterates that the reasonable suspicion required by Article 5 § 1 (c) of the Convention need not be based on facts of the same level as those necessary to justify a conviction or even the bringing of a charge as it is precisely the purpose of the official investigation, which the detention is intended to facilitate, to prove the reality and nature of the offences charged (see Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55).

In the present case the Investigating Judge, when ordering the applicant’s detention on remand on 5 May 2000, relied on the strong suspicion against the applicant that he had committed attempted sexual coercion. The suspicion against the applicant was based on the statement of the victim who identified the applicant at an identification parade. Further, the Investigating Judge considered, referring to the applicant’s criminal record, that the applicant was very likely to relapse into crime and found that, therefore, there was a risk that he might commit an offence similar to the one he was suspected of. This decision was, upon an appeal and several requests for release by the applicant, examined by the Graz Court of Appeal. Having regard to the above decisions and subsequent decisions by the Regional Court and Court of Appeal, the Court finds that there were sufficient and relevant grounds justifying the applicant’s detention on remand throughout the period of his detention. Accordingly there is no appearance of a violation of Article 5 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. The applicant also complained that the domestic authorities had breached the presumption of innocence in the course of the preliminary proceedings in violation of Article 6 § 2 of the Convention, which provides as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court observes that the above complaint is confined to the allegation that preliminary investigations against the applicant were opened although allegedly there was no reasonable suspicion against him.

The Court reiterates that the presumption of innocence requires that no State authority - not only a judge or court but also any other public authority - declare that a person is guilty of having committed an offence before that guilt is established by a court (see, Allenet de Ribemont v. France , judgment of 10 February 1995, Series A no. 308, p. 16, § 35). In the Daktaras v. Lithuania judgment the Court emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence. Nevertheless, whether a statement of a public official is in breach of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (no. 42095/98, §§ 44, ECHR 2000-X).

The Court observes that the applicant did not refer to any specific wording in the Austrian authorities statements but complained that the finding that a suspicion against him persisted interfered with his rights under Article 6 § 2 of the Convention.

However, the Court finds that the contested decisions in the course of preliminary investigations against the applicant do not contain any finding of guilt but merely described a state of suspicion. In these circumstances the Court is, therefore, unable to find any appearance of a breach of Article 6 § 2 in the instant case.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

4. Further, he complains under Article 6 that a media campaign affected the fairness of the trial. Article 6 of the Convention, insofar as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ....”

However, the Court reiterates that in accordance with Article 35 § 1 of the Convention “the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

The Court notes that a regional newspaper published only one article reporting on the proceedings at issue and observes that the applicant did not raise this issue in the domestic proceedings. In particular he neither challenged the judge for bias nor submitted any evidence of a lack of impartiality of the courts caused by the media coverage.

The Court, thus, finds that the applicant did not exhaust the remedies available to him under Austrian law in respect of this complaint.

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

5. The applicant complains under Article 6 § 1 of the Convention that he did not have a public hearing in the proceedings concerning his detention on remand. The Court observes that this complaint also falls to be considered under Article 5 § 4 of the Convention. Article 6 § 1, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ....”

Article 5 § 4 provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court considers that it cannot, on the basis of the file, determine the admissibility of the complaint about the lack of a public hearing in proceedings concerning the continuation of the detention on remand and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the lack of a public hearing in proceedings concerning the continuation of the detention on remand;

Declares the remainder of the application inadmissible.

Michael O’boyle Nicolas Bratza Registrar President