1 2 06/01/2000 13/11/1996 11/02/1997 34813/97 Friederike SONNLEITNER Austria 3

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34813/97 by Friederike SONNLEITNER against Austria

The European Court of Human Rights ( Third Section ) sitting on 6 January 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr P. KÅ«ris, 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 Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 November 1996 by Friederike Sonnleitner against Austria and registered on 11 February 1997 under file no. 34813/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1939 and living in Köflach . She is repr e sented before the Court by Mr Peter Bartl , a lawyer practising in Graz .

A. Particular circumstances of the case

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

On 12 and 13 December 1989 criminal proceedings were opened against the appl i cant and her husband, H.S., respectively, on suspicion of their having brought into circul a tion large amounts of narcotic drugs ( Inverkehrsetzen grosser Mengen Suchtgift ). On 13 August 1990 the investigating judge discontinued the proceedings against the applicant. He noted that the applicant had denied being involved in any criminal act. As H.S. had availed himself of the right not to give evidence against his wife ( Zeugenentschlagungsrecht ), it was unlikely that the appl i cant’s defence would be disproved.

On 6 March 1991 the Munich Regional Court convicted H.S.  amongst others  of the above charges. In its reasoning, the court, referring to statements made by H.S., noted several times that the applicant had contributed to the commission of the offence at i s sue.

Having regard to the above judgment, the Graz Public Prosecutor’s Office ( Staa t sanwaltschaft ) requested the re-opening of the proceedings against the applicant on 8 January 1992. The Public Prosecutor’s Office noted that H.S. had previously availed hi m self of the right not to give evidence against his wife. His statements in the proceedings before the Munich Regional Court therefore co n stituted new evidence.

On 11 March 1992 the Review Chamber ( Ratskammer ) of the Graz Regional Criminal Court ( Landesgericht für Strafsachen ) granted the re-opening request.

On 24 July 1992 the applicant was arrested. Subsequently, the investigating judge o r dered her detention on remand, finding that there was a suspicion of her having committed the above offence, as well as a danger of absconding. On 6 August 1992 she was released on bail.

On 29 October 1992 the Graz Court of Appeal ( Oberlandesgericht ) quashed the order to re-open the proceedings and referred the case back to the Graz Regional Criminal Court. It found that the latter should have carried out further investigations into the precise contents of H.S.’s statements before the Munich Regional Court . On 16 February 1994 the Review Chamber of the Graz Regional Court again decided to re-open the proceedings. The applicant’s appeal against this decision was dismissed by the Graz Court of Appeal on 13 April 1994. She was finally acqui t ted on 31 August 1995.

On 12 September 1995 the applicant filed an action claiming compensation for u n lawful detention under section 2 § 1 (a) of the Compensation (Criminal Proceedings) Act 1969 ( Strafrechtliches Entschädigungsgesetz ) . She argued that her detention between 24 July 1992 and 6 August 1992 had been unlawful as she had been arrested before the order to re-open the criminal proceedings had become final.

On 19 December 1995 the Graz Court of Appeal granted the applicant’s action, finding that she was entitled to compensation. It held that, as a general rule, arrest and d e tention of a suspect could lawfully be ordered even before the re-opening order became f i nal as the appeal against it had no suspensive effect. The investigating judge was bound by the order to reopen the proceedings. Furthermore, the Court of Appeal noted that, at the time the applicant’s detention was ordered, there was a reasonable suspicion against her as H.S. had incriminated her in the proceedings before the Munich Regional Court . Having regard to the sentence she risked incurring, namely one to fifteen years’ imprisonment, and to the fact that she was unemployed at that time and not well integrated in society, the court also found that at that time a danger of absconding had properly been assumed by the invest i gating judge. However, it followed from the decision of 29 October 1992 that the order to re-open the proceedings had been premature and therefore unlawful. The court accordingly concluded that the applicant’s detention, being based on that defective order, had likewise been unlawful.

On 18 April 1996 the Supreme Court ( Oberster Gerichtshof ) allowed the appeal of the Public Prosecutor’s Office and dismissed the appl i cant’s action. It noted that the order to re-open proceedings which had been discontinued meant that they were resumed at the stage of the preliminary investigation. The re-opening order served as a legal basis for the co n tinuation of the proceedings and also for the suspect’s arrest and detention, even before it became final, as the appeal against it did not have suspensive effect. The investigating judge was bound by that order and had no competence to review its lawfulness. The fact that, in the present case, the order had later been quashed by the appellate court did not re t rospectively render unlawful the applicant’s detention, which had duly been based on a reasonable suspicion and the danger of absconding. The decision was served on 22 May 1996.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure ( Strafprozessordnung ), in the version in force in 1992, provided as follows:

According to section 352, the Review Chamber of the competent criminal court could, upon the Public Prosecutor’s request, re-open proceedings against a specific suspect which had been discontinued, if criminal liability for the offence had not become statute-barred and new evidence was adduced which appeared likely to lead to the suspect’s co n viction (paragraph 1). An appeal against the Review Chamber’s decision could be lodged with the Court of Appeal (paragraph 2).

As section 352 was silent on the question whether or not such an appeal had su s pensive effect, the general rule laid down in section 114 § 2 applied, namely that an appeal against the decision of the Review Chamber had no suspensive effect.

COMPLAINTS

The applicant complains under Article 5 §§ 1 (c) and 5 of the Convention about the alleged unlawfulness of her detention between 24 July 1992 and 6 August 1992. In pa r ticular, she argues that her complaint against the order to re-open the proceedings had su s pensive effect and that her detention on remand could not, therefore, be based on the said order. She also contends that there were insufficient grounds for her detention. Further, she complains that she was not heard prior to being taken into detention on remand. She su b mits that the Supreme Court wrongly denied her compensation for her detention. She also invokes Article 6 § 2 of the Convention.

Finally, the applicant complains under Article 6 § 1 of the Convention that she was not heard before the Review Chamber took the decision to re-open the proceedings against her. She also submits that the lack of further investigation before the re-opening of the procedure, and the fact that this decision was served on her only on the day of her a r rest, violated her right to a fair trial.

THE LAW

1 . The applicant complains under Article 5 §§ 1 (c) and 5 of the Convention that her arrest and detention were unlawful. She also invokes in this regard the presumption of innocence under Article 6 § 2 of the Conve n tion.

The Court finds that these complaints fall to be examined under Article 5, which so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be d e prived of his liberty save in the following cases and in accordance with a proc e dure 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 o f fence or fleeing after having done so;

...

5. Everyone who has been the victim of arrest or detention in contravention of the pr o visions of this article shall have an enforceable right to compensation.”

a. As to the applicant’s complaint that she had not been heard concerning the grounds for her arrest and detention, the Court recalls that, in order to exhaust domestic remedies within the meaning of Article 35 of the Convention, an applicant must have raised before the national authorities, at least in substance, the complaint put to the Court. However, it appears from the case-file and the applicant’s submissions that she failed to do so. A c cordingly, the applicant has not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention and this part of the application must be rejected under Article 35 § 4 of the Convention.

b. The applicant alleges that her detention between 24 July 1992 and 6 August 1992 was unlawful, arguing that her complaint against the order to re-open the proceedings had suspensive effect and that her detention on remand could not, therefore, be based on the said order. She also contends that there were insufficient grounds for her detention.

In the Court’s view, the main issue to be determined in the present case is whether the applicant’s detention, which clearly fell within Article 5 § 1 (c) of the Convention, complied with “a procedure prescribed by law”. The Convention here essentially refers back to national law and creates the obligation to conform to the substantive and proc e dural rules thereof. Moreover, it requires that any deprivation of liberty should be consi s tent with the purpose of Article 5, namely to protect individuals from arbitrariness. It is in the first place for the national authorities, notably the courts, to interpret and apply dome s tic law. However, since under Article 5 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see for instance, the Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 752, § 40).

The Court notes that the Austrian Code of Criminal Procedure in force in 1992 did not, as a general rule, give suspensive effect to appeals against decisions of the Review Chamber. The provisions regulating the re-opening of proceedings made no exception from this general rule. Accordingly, the domestic courts found that, even before it became final, the order to reopen the proceedings served as a basis for their continuation, including the suspect’s arrest and detention on remand. The Court is, therefore, satisfied that the appl i cant’s detention was lawful under Austrian law. Further, it finds that there is no indication that the applicant’s detention was arbitrary. Finally, the Court observes that the mere fact that the order to re-open the proceedings was later quashed by the Graz Court of Appeal cannot retrospectively affect the lawfulness of the applicant’s detention (see mutatis m u tandis the aforementioned Benham judgment, p. 753, § 42).

As to the applicant’s allegation that there were insufficient grounds for her dete n tion, the Court recalls that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the arrest and d e tention (see, mutatis mutandis , the Tomasi v. France judgment of 27 August 1992, S e ries A no. 241-A, p. 35, § 84). In the present case, the proceedings against the applicant were originally discontinued because there was insufficient evidence to disprove her d e fence. However, when the Public Prosecutor filed the request for the re-opening of the pr o ceedings, new evidence likely to prove the applicant’s guilt had been adduced, namely the incriminating testimony of her husband in another set of proceedings. In these circu m stances, the Court finds that the suspicion that she had committed an offence was reaso n able.

Furthermore, the national courts based the arrest and the detention on the need to prevent the applicant from absconding. The Court recalls that such a danger cannot be gauged solely on the basis of the severity of the potential 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 detention pending trial (see the Letellier v. France judgment of 26 June 1991, Series A no 207, p. 19, § 43). In the present case, a statutory range of punishment of one to fifteen years’ imprisonment applied. However, the severity of the possible sentence was not the only argument put fo r ward by the national courts. They also examined the personal situation of the applicant and found that she was unemployed and not well integrated in society at the material time. Having regard to these arguments, the Court finds that the reasons for the applicant’s arrest and detention were relevant and sufficient for the purposes of Article 5 § 1 (c) of the Co n vention.

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 Conve n tion.

c. As to the applicant’s complaint that the Supreme Court wrongly denied her co m pensation for her detention, the Court recalls that Article 5 § 5 guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention in contravention of the provisions of Article 5 (see the aforementioned Benham judgment, p. 755, § 50). In view of its finding that there was no violation of Article 5 § 1 in this case, the Court concludes that that there was equally no violation of Article 5 § 5 of the Conve n tion.

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

2. The applicant further complains under Article 6 § 1 of the Convention about var i ous aspects of alleged unfairness of the proceedings concerning the re-opening of the criminal proceedings against her. Article 6 § 1 guarantees the right to a fair hearing in the determination of a criminal charge.

The Court recalls that, according to established case-law, Article 6 of the Conve n tion does not apply to proceedings for the re-opening of criminal proceedings, given that at that stage the person concerned is not someone “charged with a criminal offence” within the meaning of the said Article (see no. 7761/77, Dec. 8.5.1978, D.R. 14, p.171 at p. 173; no. 19255/92 and 21655/93 (joined), Dec. 16.5.95, D.R. 81, p. 5). Article 6 is not, ther e fore, applicable in the present case.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar President