THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34994/97 by Ernst G. WALTER against Austria

The European Court of Human Rights ( Third Section ), sitting on 27 April 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, 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 7 April 1996 and registered on 19 February 1997,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national , born in 1947. He is currently detained at the Vienna Josefstadt prison.

A. Particular circumstances of the case

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

In 1993 the applicant was the manager of the S. Company, a company with its seat in Vienna, working in the field of financial consultancy . Since 1992 he also had an office in Florida, USA.

1. Criminal proceedings

In December 1993 the Luxembourg B. Bank laid an information against the applicant alleging that he had caused financial damage to it by manipulations in trading securities. Thereupon, the prosecution authorities issued an international arrest warrant. On 26 June 1995 the applicant was arrested by the United States customs authorities in his office in Florida. In August 1995 the United States customs authorities carried out a search and seized documents in the applicant’s office. On 12 October 1995 the applicant was extradited to Austria.

On 13 October 1995 the investigating judge at the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) heard the applicant and ordered his detention on remand on suspicion of aggravated fraud ( schwerer Betrug ). It found that there was a danger of absconding ( Fluchtgefahr ) having regard to the applicant’s last place of residence, namely the United States, and the fact that he was not socially integrated in Austria. The applicant appealed.

On 16 November 1995 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed his appeal. It found that the suspicion of aggravated fraud was based on documentary evidence, the statements of a number of witnesses and an expert opinion. As to the danger of absconding, the court noted that the applicant’s counsel had, prior to the issuing of an international arrest warrant, proposed several dates for the questioning of the applicant, but the latter had never appeared. Instead he had fled to the United States and only became available for the proceedings following the issue of an international arrest warrant and his extradition. Contrary to the applicant’s submissions, his family ties in Austria were not sufficiently strong as they had not prevented him from fleeing to the United States with his girl-friend, leaving behind his wife and children. Furthermore, the court had regard to the severity of the possible sentence and the fact that the applicant had both Austrian and Venezuelan nationality with, according to the file, considerable assets abroad.

On 22 December 1995, 22 February 1996 and 29 April 1996 the investigating judge prolonged the detention order having reviewed the reasonableness of the suspicion against the applicant and the risk of his absconding. He noted in particular that the length of the detention was not disproportionate to the sentence the applicant risked incurring.

On 1 March 1996 the Public Prosecutor’ Office ( Staatsanwaltschaft ) preferred the indictment ( Anklageschrift ) against the applicant for aggravated fraud. In these and the subsequent proceedings the applicant was represented by counsel.

On 10 May 1996 the applicant’s counsel challenged the expert appointed by the court to analyse the financial transactions at issue.

On 17 June 1996 the trial hearing started and counsel again challenged the expert for bias, arguing that the applicant had laid a criminal information against him. The Vienna Criminal Court sitting with lay assessors ( Schöffengericht ) found that the expert had already delivered his opinion when the information had been laid against him. Thus, the submissions of the defence could not cast doubt on the impartiality of the expert. Moreover, it would not serve the interests of the good administration of justice if an expert who had given an opinion which was unfavourable to the accused could be challenged simply by filing a - possibly unfounded - criminal information against him.

On 18, 19, 20 and 21 June 1996 further trial hearings were held. On the latter date counsel again challenged the expert for bias, arguing that he had based his opinion on facts that had not yet been proved by the court. Besides, he had close relations to one of the banks involved in the proceedings. The court dismissed the motion, finding that these allegations were completely unfounded. Moreover, it adjourned the hearing for the taking of further documentary evidence and the hearing of a number of other witnesses requested by the defence. In addition it ordered the expert to supplement his opinion.

On 5 August 1996 the applicant’s detention was prolonged. The applicant appealed, submitting that in related proceedings in Switzerland the courts had found that he was not guilty of any criminal charge. Besides, there was no danger of absconding.

On 30 August 1996 the Vienna Court of Appeal dismissed the appeal. It found that the suspicion against the applicant had been corroborated by the evidence taken at the trial, in particular the statements of several witnesses and the expert opinion. The decisions by the Swiss courts referred to by the applicant concerned civil proceedings in which, moreover, the expert opinion  had not been examined. As to the danger of absconding, the court repeated the reasoning of 16 November 1995. Having regard to the severity of the sentence the applicant risked incurring, the duration of his detention was still proportionate. The applicant filed a fundamental rights complaint ( Grundrechtsbeschwerde ) with the Supreme Court ( Oberster Gerichtshof ) against this decision.

On 11 October 1996 the Supreme Court dismissed the applicant’s complaint, confirming the reasoning of the Vienna Court of Appeal.

On 26 February 1997 the applicant filed a request for release.

On 2, 3, 4, 5, 6, 9, 10 and 11 June 1997 further trial hearings were held. On 9 June 1997 the applicant’s counsel again challenged the expert.

The trial hearings were closed on 12 June 1997 when the Vienna Criminal Court, having rejected the applicant’s motions for the admission of further witnesses and evidence seized during the search of his office in Florida, rendered its judgment. It convicted the applicant of thirty-eight counts of aggravated fraud and sentenced him to six years’ imprisonment. Having particular regard to the statements of several witnesses and the expert opinion, the court found it established that the applicant had in September and October 1993 carried out manipulated transactions with securities causing damages of about 270 million Austrian schillings to the B. Bank.

On 23 July 1997 the applicant’s detention was prolonged.

On 30 July 1997 the applicant filed a plea of nullity ( Nichtigkeitsbeschwerde ) and an appeal against sentence ( Berufung ) with the Supreme Court.

On 9 January 1998 the applicant filed a fundamental rights complaint against the prolongation of his detention, which was dismissed by the Supreme Court on 16 February 1998.

On 12 May 1998 the Supreme Court dismissed the applicant’s plea of nullity and, upon the Public Prosecutor’s appeal, increased the sentence to eight years’ imprisonment.

The Supreme Court noted in particular that it was for the trial court to assess whether an expert opinion was complete and conclusive. The defence had had sufficient opportunity to question the expert at the trial and the applicant’s submissions in the plea of nullity did not reveal any defects in the expert opinion. The applicant’s criminal information against the expert was also based on alleged defects in the opinion and had not led to the introduction of  criminal proceedings. In sum, the applicant’s submissions could not cast doubt on the impartiality of the expert.

As to his complaint about the refusal to hear a number of witnesses, the Supreme Court observed that some of them had been heard by way of letters rogatory ( im Rechtshilfeweg ) and the defence had failed to indicate why their further hearing seemed necessary. The testimonies of some others, who should have been heard according to the applicant on the flow of money between his firms and the B. Bank, were not necessary as the statements of account which clearly showed the relevant transactions had been included in the case-file as evidence. Finally, the hearing of a number of further witnesses was not necessary as the trial court had in any case considered that the facts which such witnesses were supposed to prove had already been established. As to the complaint about the alleged failure to obtain documents seized in the United States, the court noted that, on the basis of the file and the applicant’s submissions, they concerned the possible value of certain securities outside the European market which was not at issue in the proceedings.

On 9 September 1998 the decision was served upon the applicant’s counsel.

2. Proceedings for the publication of a reply

On 7 July 1997 the weekly magazine “ Profil ” published an article about the applicant and the criminal proceedings conducted against him.

On 8 August 1997 the Vienna Regional Criminal Court received the applicant’s motion for the publication of a reply ( Gegendarstellung ) to that article. The main thrust of the text which the applicant wanted published was that the article had wrongly described his role in the transactions with the Luxembourg B. Bank.

On 29 August 1997 the Vienna Regional Criminal Court rejected the applicant’s motion on the ground that the applicant had addressed it to the journalist who had written the article instead of the publisher ( Medieninhaber ) as required by the Media Act ( Mediengesetz ). This decision was served on the applicant on 3 September 1997. His appeal was to no avail.

On 3 September 1997, the applicant wrote another request for the publication of a reply, this time directed against the publisher. He gave it to the responsible prison officer on 4 September 1997 with a note “matter subject to a time limit” ( Fristsache ). It was entered in the prison mail-book on 4 September 1997. Subsequently it was passed on by the responsible prison officer to the investigating judge, who had to check it. It was posted on 9 September 1997 and reached the publisher on 10 September 1997.

On 13 November 1997 the Vienna Criminal Court dismissed the request for the publication of a reply. It noted that, pursuant to section 11 of the Media Act, the publisher was not obliged to publish a reply if he received the request later than two months after the contested article had been published. In the applicant’s case the article to which he wished to reply had been published on 7 July 1997. The time-limit thus expired on 7 September 1997. As the applicant’s request had only been posted on 9 September 1997 and had reached the publisher on 10 September 1997, it was clearly out of time. The fact that the applicant was detained could not prolong the time-limit.

On 16 March 1998 the Vienna Court of Appeal dismissed the applicant’s appeal. It found in particular that the fact that it might take longer to post a letter for a detainee could not prolong the statutory time-limit laid down in the Media Act to the disadvantage of the media owner.

3 . Civil proceedings

As far as can be determined from the applicant’s submissions, civil proceedings related to the criminal charges of which the applicant was convicted are pending before the Vienna Commercial Court ( Handelsgericht ).

B. Relevant domestic law

Section 9 of the Media Act provides in essence that any person directly affected by the reporting of facts in a periodical medium has a right to the publication of a reply free of charge unless the reply is itself untrue or the publication is excluded for other reasons (paragraph 1). A reply only lies as regards the reporting of facts the truth and completeness of which are susceptible of proof (paragraph 2). The reply has to indicate briefly which facts are untrue or incomplete and  has to mention the facts from which this follows (paragraph 3).

COMPLAINTS

1. The applicants complain about his extradition by the United States of America. He invokes Article 5 § 1 (c) of the Convention.

2. The applicant complains under Article 5 § 3 of the Convention about the length of his pre-trial detention in Austria.

3. He further complains that the cell he was detained in was covered with tar, which was harmful to his health. He invokes Article 3 of the Convention.

4. He complains under Article 6 § 1 of the Convention about the unfairness of the criminal proceedings. He argues in particular that the expert was biased and that his defence was restricted as some of the witnesses he had requested had not been heard. Besides, he was unable to rely on the documents seized in the United States as the Austrian courts refused to obtain these documents from that country. He also complains that the Austrian courts did not take into account the decisions given by the Swiss courts in related proceedings. In this respect he invokes Article 7 of the Convention.

5. In his letter of 31 July 1999 the applicant also complains under Article 6 § 1 about the length of the criminal proceedings against him.

6. The applicant also complains under Article 6 that the civil proceedings were unfair as the judge did not take into account relevant EU competition rules.

7. Finally, he complains under Article 6 § 1 that the proceedings for the publication of a reply were unfair because was prevented from posting his request in time by a slow prison administration.

THE LAW

1 . The applicants complain about his extradition by the United States of America. He invokes Article 5 § 1 (c) of the Convention. However, the United States of America are not a High Contracting Party to the Convention. Accordingly, this part of the application must be rejected as being incompatible ratione personae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains under Article 5 § 3 of the Convention about the length of his pre-trial detention in Austria.

Article 5 § 3, so far as relevant, reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article ... shall be entitled to trial within a reasonable time or to release pending trial. ...”

The Court notes that the period to be taken into account started on 13 October 1995 when the Vienna Regional Criminal Court ordered the applicant’s detention on remand following his extradition from the United States. According to established case-law,  detention after the judgment at first instance no longer falls within the ambit of Article 5 § 1 (c), but within the scope of Article 5 § 1 (a) of the Convention (see for instance the B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§ 36-39). Thus, the relevant period of detention ended on 12 June 1997 when the Vienna Criminal Court rendered its judgment. It therefore lasted one year and eight months.

The Court recalls that it is essentially on the basis of the reasons given in the domestic decisions and of the established facts that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3. 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, but, after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were "relevant" and "sufficient", the Court must also ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings (see for instance the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 35, § 84).

As to the grounds for the applicant’s detention, the Court notes that the domestic authorities stressed that the applicant risked incurring a severe sentence for aggravated fraud. In finding that there was a reasonable suspicion against the applicant, they relied on witness evidence and an expert opinion.

Further, they held that there was a danger of absconding. In this context, the Court recalls that the danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (see e.g. the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 16, § 33). In the present case, the domestic courts carefully examined the relevant factors. They took into account that the applicant had both Austrian and Venezuelan nationality, that he had an office in the United States and had assets abroad. Further, he had not appeared before the authorities for questioning at the beginning of the criminal proceedings, but had gone to the United States with his girl-friend, leaving behind his wife and children in Austria. The Court finds that the reasons put forward by the domestic courts for the applicant’s continued detention were both “relevant” and “sufficient”.

As to the question whether the proceedings were conducted with special diligence, the Court notes that the applicant was prosecuted for a series of fraudulent transactions which necessitated the taking of evidence abroad under letters rogatory , the hearing of a certain number of witnesses and the taking of an expert opinion. Thus, the case was rather complex. The Vienna Court of appeal held five trial hearings in June 1996. On 21 June 1996 it adjourned the trial, which was not resumed until 2 June 1997. Although a lapse of time of almost a year may appear excessive at first sight, the Court recalls that while an accused person in detention is entitled to have priority given to his case, and to have the proceedings conducted expeditiously, this must not stand in the way of the efforts of the judges to clarify fully the facts in issue, and to give both the defence and the prosecution all appropriate facilities to put forward their evidence (see the B. v. Austria judgment cited above, p. 17, § 45). In the present case, the court adjourned the hearing in order to take further evidence requested by the defence and to have the expert opinion supplemented. Once the trial resumed, the court held nine hearings and gave judgment on 12 June 1997. In these circumstances, the Court finds that there is no indication that the domestic authorities failed to act with the necessary diligence.

Consequently, the Court finds that the length of the applicant’s detention of one year and eight months was reasonable within the meaning of Article 5 § 3 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and  4 of the Convention.

3. The applicant further complains that the cell in which he was detained was covered with tar, which was harmful to his health. He invokes Article 3 of the Convention, which prohibits inhuman and degrading treatment.

The Court recalls that it may only deal with a matter after all domestic remedies have been exhausted, in accordance with Article 35 § 1 of the Convention. As far as can be determined on the basis of the file and the applicant’s submissions, he did not make any complaint about this matter to the domestic authorities, in particular he did not file a complaint under the Execution of Sentences Act ( Strafvollzugsgesetz ). Thus, he has failed to exhaust domestic remedies.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

4. The applicant complains under Article 6 § 1 of the Convention about the unfairness of the criminal proceedings. He submits that the expert was biased and that his defence was restricted as some of the witnesses he had requested had not been heard. Besides, he was unable to rely on the documents seized in the United States as the Austrian courts refused to obtain these documents from that country. He also complains that the Austrian courts did not take into account the decisions given by the Swiss courts in related proceedings. In this respect he invokes Article 7 of the Convention.

The Court will examine these matters under Article 6 § 1 of the Convention which, so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time … .”

The Court recalls that the admissibility and assessment of evidence is primarily the task of the national courts, although the Court will consider whether the proceedings considered as a whole, including the way in which evidence was submitted, were fair (see for instance the Lüdi v. Switzerland judgment of 15 June 1992, Series  A no. 238, p. 20 § 43).

In the present case the domestic courts conducted extensive evidentiary proceedings, which included the taking of evidence requested by the defence. They gave detailed and convincing reasons for refusing the applicant’s repeated motions challenging the expert for bias. As to the refusal to hear certain witnesses requested by the applicant, the Supreme Court also examined the issue in detail, giving specific reasons as to why the hearing of those witnesses was unnecessary. As to the complaint about the alleged failure to obtain documents seized in the United States, the Supreme Court also found that they concerned an issue which was not relevant to the proceedings. As regards the alleged failure to take into account the decisions by Swiss courts in related proceedings, the Court finds that it does not disclose any appearance of unfairness.

In these circumstances, the Court concludes that there is no indication that the applicant, represented by counsel, could not duly present his defence or that the proceedings were otherwise unfair. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

5. The applicant also complains under Article 6 § 1 of the Convention about the length of the criminal proceedings.

The Court recalls that it may only deal with a matter put to it within six months from the date on which the final decision was taken. The Court notes that the applicant put this complaint to the Court by letter of 31 July 1999. However, the criminal proceedings were terminated on 9 September 1998, when the Supreme Court’s decision was served upon the applicant’s counsel, which is more than six months before the complaint was submitted.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

6. Next, the applicant complains under Article 6 § 1 of the Convention that the civil proceedings were unfair as the judge did not take into account relevant EU competition rules.

The Court recalls that its task is to ensure that proceedings as a whole have been fair within the meaning of Article 6. Thus, as the proceedings are apparently still pending, the Court is not yet in the position to enter into an examination of their alleged unfairness.

It follows that this complaint is premature and must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

7. Finally, the applicant complains under Article 6 § 1 of the Convention that the proceedings under the Media Act for the publication of a reply were unfair because he had been prevented from posting his request in time by a slow prison administration.

The Court considers it cannot, on the basis of the file, determine the admissibility of this complaint 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 that the proceedings under the Media Act for the publication of a reply were unfair because he had been prevented from posting his request in time by a slow prison administration;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza

Registrar President