THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24430/94 by Bernhard LANZ against Austria

The European Court of Human Rights (Third Section) , sitting on 30 January 2001 as a Chamber composed of Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 March 1992 and registered on 17 June 1994,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 21 May 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national, born in 1949 and living in Graz (Austria). He is represented before the Court by Mr R. Soyer , a lawyer practising in Vienna (Austria).

A. The circumstances of the case

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

1. Preliminary investigations against the applicant and his detention on remand

On 25 October 1991 the Investigating Judge at the Graz Regional Court ( Landesgericht ) issued a warrant of arrest against the applicant on suspicion of having committed fraud and falsification of documents. The suspicion related to the applicant’s business activities, and in particular two real estate investment projects. The Investigating Judge issued a search warrant ordering a house search at the premises of the SDBV company, a private company ( Gesellschaft mit beschränkter Haftung ) for which the applicant acted as general manager. The seizure of documents relating to the real estate investment projects was also ordered. That same day the warrant, search and seizure were executed, the latter in the presence of the Investigating Judge. Later in the day the Investigating Judge questioned the applicant and ordered his detention on remand as he found that there existed a danger of the applicant absconding and collusion. As regards the risk of collusion, the Investigating Judge found that there was the danger that the applicant would attempt to influence the employees of the SDBV company and to remove documents which had not been found during the search.

On 27 October 1991 the applicant requested his release from detention on remand.

On 6 November 1991 the Review Chamber ( Ratskammer ) of the Graz Regional Court, after an oral hearing in the presence of the applicant, his defence counsel and the Public Prosecutor, dismissed his request. The Review Chamber found that no danger of absconding existed. However, the danger of collusion continued to exist as the applicant might try to influence witnesses not yet heard and to remove any traces of the offence. There was also a danger of his committing further offences. The Public Prosecutor appealed on 19 November 1991, followed by the applicant on 20 November 1991.

Meanwhile, on 11 November 1991, the Investigating Judge ordered that the applicant’s contacts with his defence counsel should take place under the surveillance of the court because of the existence of a danger of collusion. The Investigating Judge found that this measure was necessary because co-suspects were still at large, several witnesses had not yet been heard and there was a risk that the applicant could influence them. The Investigating Judge stated that the validity of this order would expire at the latest when the two-month statutory time-limit for detention on remand based on the risk of collusion would end. The applicant appealed against this decision. He submitted that he did not oppose this measure in principle, however, the measure constituted an unnecessary limitation on his defence rights and the Investigating Judge had failed to order this measure within 14 days as prescribed by law.

On 21 November 1991 the Review Chamber dismissed the applicant’s appeal against the Investigating Judge’s search warrant and the order for surveillance of the applicant’s contacts with his defence counsel. As regards the complaint about the surveillance of the applicant’s contacts with counsel, the Review Chamber upheld the Investigating Judge’s decision for the following reasons:

The order had not involved any criticism of counsel or any reproach of conduct contrary to law or the disciplinary rules of the members of the bar, but merely had the purpose of preventing any contact whatsoever with third persons in order not to endanger the success of the criminal investigation. The present case concerned the complicated business relations of the SDBV and several other companies managed by the applicant, and the flow of money between them. Further witnesses could only be identified after all the documents seized had been examined and the applicant was to be prevented from influencing them. Furthermore, the decision had been taken within the time-limit prescribed by S. 193 § 3 of the Code of Criminal Procedure.

The Review Chamber also found the applicant’s complaint that he did not have sufficient access to his case-file unfounded. The Investigating Judge had granted access to the file to the official receiver of the SDBV company and the applicant’s defence counsel, the latter also being given the possibility to make copies of the documents in the file. The applicant’s counsel visited him repeatedly and could have given him copies if he so wished. Moreover, when questioned by the Investigating Judge, the applicant was informed of the contents of the file and about the statements of witnesses already heard.

On 28 November 1991 the Graz Senior Public Prosecutor commented on the applicant’s appeal of 20 November 1991. These comments were not served on the applicant.

On 12 December 1991 the Graz Court of Appeal ( Oberlandesgericht ) decided the appeals of both the applicant and the Public Prosecutor. It found that a serious suspicion existed against the applicant and referred to the details of the criminal investigation. There also existed a danger that the applicant would abscond.

On 15 January 1992 the Review Chamber, after having held an oral hearing, dismissed a further request of the applicant for release. On 13 February 1992 the Court of Appeal dismissed the applicant’s appeal. On 11 March 1992 the Review Chamber dismissed a further request for release by the applicant.

After his conviction on 21 June 1992, the applicant filed further requests for release from detention on remand. Such requests were refused by the Review Chamber on 3 February 1993 and 6 April 1993. Appeals were dismissed by the Court of Appeal on 18 February 1993 and 29 April 1993 respectively.

2. The trial against the applicant

On 14 February 1992 the Graz Public Prosecutor filed a bill of indictment against the applicant charging him with aggravated fraud.

On 21 April 1992 the trial against the applicant started before the Graz Regional Court. It lasted until 21 June 1992. In the course of the trial the Regional Court heard 52 witnesses, some of them repeatedly on the applicant’s request. Furthermore 5 experts on book-keeping, building and construction matters, real estate assessment, medicine and psychiatry were heard. The applicant frequently requested that the trial be adjourned for lengthy periods and, towards the end of the trial, requested that the trial be repeated or that the case be remitted to the Investigating Judge. On 21 June 1992 the court convicted the applicant of aggravated fraud and sentenced him to four and a half years’ imprisonment. It also acquitted the applicant of an additional charge of fraud raised by the Public Prosecutor at the trial.

On 9 September 1992 the judgment of some 150 pages and the transcript of the trial of some 1400 pages were served on the parties.

3. The plea of nullity and appeal proceedings

On 1 October 1992 the Public Prosecutor filed a plea of nullity and an appeal against that part of the sentence concerning the applicant’s acquittal. On 5 October 1992 the applicant filed a plea of nullity and the appeal.

On 22 October 1992 the applicant commented on his plea of nullity lodged by the Public Prosecutor. Since he claimed that until the expiration of the time ‑ limit for filing his plea of nullity the defence had had insufficient possibilities to inspect the file, the Supreme Court, on 24 December 1992, decided that the applicant should be granted a new time ‑ limit for filing his plea of nullity and the appeal.

On 19 February 1993 the applicant again filed a plea of nullity and an appeal against sentence. The writ repeated in substance the arguments raised earlier.

On 30 March 1993 the Graz Public Prosecutor withdrew the plea of nullity.

On 27 April 1993 the Procurator General ( Generalprokurator ) submitted the following comments on the applicant’s plea of nullity:

"In the view of the Procurator General the plea of nullity of the accused Bernhard Lanz can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested. The plea of nullity lodged by the Public Prosecutor’s Office has been withdrawn by the attached declaration of 30 March 1993."

On 9 June 1993 the Supreme Court, sitting in camera, rejected as inadmissible the applicant’s plea of nullity.

On an unspecified date, the Senior Public Prosecutor submitted written comments on the applicant’s appeal.

On 30 August 1993 the Graz Court of Appeal, after an oral hearing in which the applicant and his defence counsel participated, granted the Public Prosecutor’s appeal against the applicant’s sentence and increased it to five and a half years’ imprisonment. For his appeal, the applicant was referred to this latter decision. In weighing the mitigating and aggravating circumstances, the court found that a higher sentence was called for.

B. Relevant domestic law

The following account of the relevant provisions of the Code of Criminal Procedure ( Strafprozeßordnung ) is based on the law in force until 1 January 1994.

According to S. 12 § 1 of the Code of Criminal Procedure, the Review Chamber at the First Instance Court supervises all measures taken by the Investigating Judge in the course of preliminary investigations.

According to S. 45 § 3 a person remanded in custody may meet his defence counsel in the absence of the Investigating Judge. However, if detention on remand has been ordered on the ground of a danger of collusion, the Investigating Judge may, during the first 14 days of the detention, be present when the remand prisoner meets his defence counsel. If due to specific circumstances a danger exists that contact with defence counsel may interfere with evidence, the Investigating Judge may order the extension of such surveillance until the bill of indictment is served. Surveillance of contact with defence counsel may only be exercised as long as the detention on remand is based on a danger of collusion (SS. 180 and 193 § 3).

Under S. 180 §§ 1 and 2, a person may be held in detention on remand if he is seriously suspected of having committed a criminal offence and if there is a risk of his absconding, of collusion, or that the person might commit further offences. According to S. 193, detention may not last more than two months where its sole justification is the risk of collusion; it may not last more than six months where one of the other grounds is relied upon. The Court of Appeal may, however, extend detention if so requested by the Investigating Judge or the Public Prosecutor, and if the difficulty or the scope of the investigation makes it necessary. In such cases the maximum duration of detention is three months where the measure is based on a risk of collusion alone and, for the other grounds, one to two years if the term of imprisonment which the suspect risks is ten years or more.

By virtue of SS. 194 and 195, it is open to the suspect to apply for release at any time. Such an application and any appeal against a decision ordering detention on remand must be examined by the Review Chamber at a private hearing in the presence of the accused or his defence counsel. According to S. 114, there is a further appeal against decisions of the Review Chamber to the Court of Appeal.

Under S. 285 (d) § 1 a plea of nullity may be rejected by the Supreme Court after deliberations in private if the court unanimously finds that the complaint should be dismissed as being manifestly ill-founded without any need for further deliberations.

COMPLAINTS

The applicant complains that his contacts with his defence counsel were kept under surveillance by the Investigating Judge during the first two months of his detention on remand.

He further complains that in the criminal proceedings against him the Procurator General submitted comments on his plea of nullity to the Supreme Court, and the Senior Public Prosecutor submitted comments on his appeal, which were not served on him.

He also complains that in the proceedings concerning his requests for release the prosecution made submissions to which he had no possibility to reply.

The applicant relies on Articles 5 and 6 of the Convention.

THE LAW

1. The applicant complains that his rights of defence were prejudiced because his contacts with his defence counsel were placed under the surveillance of the Investigating Judge during the first two months of his detention on remand.

The Court finds that this complaint falls to be examined under Article 6 § 3 (b) and (c) of the Convention which read as follows:

“Everyone charged with a criminal offence has the following minimum rights:   ...

b.   to have adequate time and facilities for the preparation of his defence;

c.   to defend himself in person or through legal assistance of his own choosing ..."

The Government note that the surveillance of the applicant’s contacts with his defence counsel only lasted from 25 October 1991 until 25 December 1991. This measure was necessary in order to ensure successful investigations as there was a risk that, without it, the contacts between the applicant and his defence counsel would lead to an interference with evidence. There was a serious suspicion that the applicant would try to influence employees of the SDBV or other unknown witnesses, and to have documents removed.

The Government submit that the temporary surveillance of the applicant’s contacts with his defence counsel at the beginning of the criminal investigation did not hinder him in the exercise of his defence rights. Contacts with counsel had not been prohibited and, after surveillance ceased, he had had at his disposal more than six weeks before the bill of indictment was served on him and more than four months before the trial commenced, during which time he could communicate freely with his lawyer in order to prepare his defence. Therefore, the applicant’s rights under Article 6 § 3 (b) and (c) of the Convention have not been violated.

This is contested by the applicant who submits that contacts with defence counsel may only be subject to surveillance under extraordinary circumstances and for a very short period. Such a measure would only be justified if there are clear indications that the contacts would be misused. The mere allegation that unknown witnesses could be influenced, or documents not discovered in the course of the search could later be removed, is too vague to justify such a far reaching interference with an accused’s defence rights. Confidential conversations with defence counsel would have been necessary in order to formulate precise requests for the taking of evidence, which required comprehensive and detailed information on the course of the events.

The Court considers, in the light of the parties’ submissions, that the applicant’s co m plaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the case. The Court concludes, ther e fore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant next complains that in the criminal proceedings against him the Procurator General submitted comments on his plea of nullity to the Supreme Court, and the Senior Public Prosecutor submitted comments on his appeal, which were not served on him. He relies on Article 6 of the Convention, which, in so far as relevant, provides:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an ... impartial tribunal established by law ..."

As regards the proceedings on the plea of nullity, the Government, referring to the case of Bulut v. Austria (judgment of 22 February 1996, Reports of judgments and decisions 1996-II) , refrained from any further submissions. As regards the appeal proceedings, the Government acknowledged the facts but argued that, because an oral hearing had been held in which the Senior Public Prosecutor essentially repeated his written submissions, there was no need to serve the latter on the applicant.

The applicant submits that in respect of both sets of proceedings the principle of equality of arms has been violated. As regards the appeal proceedings, he submits that the written submissions of the Senior Public Prosecutor would have been important for him because, without them, he could not properly prepare himself fully for the appeal hearing. At such a hearing, defence counsel has to reply immediately to the submissions of the Senior Public Prosecutor.

The Court considers, in the light of the parties’ submissions, that the applicant’s co m plaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the case. The Court concludes, ther e fore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. The applicant further complains that in the proceedings concerning his requests for release the prosecution made submissions to which he had no possibility to reply.

The Court is of the opinion that this complaint falls to be considered under Aritcle 5 § 4 of the Convention, which reads as follows:

“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 Government submit that in the proceedings before the Review Chamber on the applicant’s request for release from detention on remand, oral hearings were held in which the applicant, assisted by counsel, and the Public Prosecutor participated. The applicant had therefore the opportunity to reply to the submissions made by the Public Prosecutor at the hearing. As regards appeal proceedings on such issues before the Court of Appeal, the Government submit that the standard phrase in the introduction to decisions taken by the Court of Appeal - “after having heard the Senior Public Prosecutor” - only meant that the Senior Public Prosecutor had taken note of an appeal. It did not imply that he or she had participated in the deliberations of the Court of Appeal or actually made submissions. However, even if a Senior Public Prosecutor makes written submissions to a Court of Appeal, the failure to serve them on a detainee does not violate Article 5 § 4 of the Convention as proceedings under this provision need not offer the same procedural guarantees as proceedings under Article 6 of the Convention. In particular, such a step is unnecessary if, like in the present case, those submissions contain no new aspects (see No. 20055/92, Moser v. Austria, Dec. 13.4.94, unpublished).

The applicant submits that Article 5 § 4 has been violated because the Court of Appeal dismissed his appeal against the Review Chamber’s refusal to order his release from detention on remand after it had heard the Senior Public Prosecutor, and without giving him the possibility to reply to those submissions. He points out that on 28 November 1991 the Senior Public Prosecutor submitted written observations to the Court of Appeal on the applicant’s appeal against the Review Chamber’s decision of 6 November 1991. The submissions were lengthy and carefully reasoned. In those submissions the Senior Public Prosecutor requested that the applicant’s detention on remand be ordered on the further ground of a risk of absconding. The Government’s argument that these submission did not contain new relevant information is therefore incorrect.

The Court considers, in the light of the parties’ submissions, that the applicant’s co m plaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the case. The Court concludes, ther e fore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the remainder of the application.

S. Dollé J.-P. Costa Registrar President