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CASE OF TOTH AGAINST AUSTRIA

Doc ref: 11894/85 • ECHR ID: 001-55568

Document date: January 26, 1993

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CASE OF TOTH AGAINST AUSTRIA

Doc ref: 11894/85 • ECHR ID: 001-55568

Document date: January 26, 1993

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights

and Fundamental Freedoms (hereinafter referred to as "the

Convention"),

Having regard to the judgment of the European Court of Human

Rights in the Toth case delivered on 12 December 1991 and

transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application against

Austria lodged with the European Commission of Human Rights on

12 October 1985 under Article 25 (art. 25) of the Convention by

Mr Stefan Toth, an Austrian national, who complained on the one

hand of the length of his pre-trial detention and on the other

hand that the proceedings before the Court called on to rule on

his release were not adversarial;

Recalling that the case was brought before the Court by the

Commission on 15 October 1990 and by the Government of Austria

on 18 December 1990;

Whereas in its judgment of 12 December 1991 the Court:

- held unanimously that there had been a violation of

Article 5, paragraph 3 (art. 5-3);

- dismissed unanimously the preliminary objection raised by

the Government concerning the complaint on the proceedings in the

Court of Appeal for the examination of Mr Toth's applications for

release;

- held by eight votes to one that there had been a violation

of Article 5, paragraph 4 (art. 5-4), inasmuch as those

proceedings were not adversarial;

- held by eight votes to one that Article 5, paragraph 4

(art. 5-4), did not apply to the proceedings in the Court of

Appeal concerning the extensions of the applicant's pre-trial

detention;

- held unanimously that the respondent state was to pay to

the applicant, within three months, 7 853,40 Austrian schillings

in respect of costs and expenses;

- dismissed unanimously the remainder of the claim for just

satisfaction;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of

the Convention;

Having invited the Government of Austria to inform it of the

measures which had been taken in consequence of the judgment of

12 December 1991, having regard to its obligation under

Article 53 (art. 53) of the Convention to abide by it;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of Austria gave the Committee

information about the measures taken in consequence of the

judgment, which information appears in the appendix to this

resolution;

Having satisfied itself that the Government of Austria has

paid the applicant the sum provided for in the judgment,

Declares, after having taken note of the information

supplied by the Government of Austria, that it has exercised its

functions under Article 54 (art. 54) of the Convention in this

case.

Appendix to Resolution DH (93)4

Information provided by the Government of Austria

during the examination of the Toth case

by the Committee of Ministers

A bill amending the Code of Criminal Procedure in order to

take into account the findings of the Court in the present case

was brought before Parliament in January 1993.

Pending entry into force of this act, the Minister of

Justice already invited, via a circular (Erlass) dated

5 October 1992, the presidents of the courts and the principal

public prosecutors to take the necessary measures in order to

avoid situations in the future such as the one that led in the

present case to findings of violations of paragraphs 3 and 4 of

Article 5 (art. 5-3, art. 5-4) of the Convention.

The circular indicates that pending deletion of Section 35,

paragraph 2, of the Code of Criminal Procedure, members of the

principal public prosecutors' office are invited not to use the

right that this provision confers upon them to participate in the

hearing before second instance courts, as it is not possible for

the accused to be heard.

The circular also provides that, in order to avoid delays

in the investigation of criminal cases due to the transmission

to appellate or other courts of the original file, the competent

investigation authorities must in future, before transmission,

make a photocopy of the file or the relevant parts thereof, at

least in those cases where the person charged is in detention.

The sum awarded in respect of costs and expenses was paid

on 11 February 1992.

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