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CAN CASE

Doc ref: 9300/81 • ECHR ID: 001-55449

Document date: April 26, 1988

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Cited paragraphs: 0
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CAN CASE

Doc ref: 9300/81 • ECHR ID: 001-55449

Document date: April 26, 1988

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 Can case, delivered on 30 September 1985 and transmitted the same

day to the Committee of Ministers;

Recalling that the case originated in an application against the

Republic of Austria lodged with the European Commission of Human

Rights on 14 April 1981 under Article 25 (art. 25) of the convention

by Mr Elvan Can, a Turkish national, who complained of the duration of

his detention on remand and of the initial supervision of his

consultations with his lawyer;

Recalling that the Commission declared the application admissible on

14 December 1983 and in its report adopted on 12 July 1984 expressed

the opinion, unanimously, that there had been a violation of

Article 6, paragraph 3, sub-paragraph c (art. 6-3-c), of the

convention by reason of the refusal to allow the applicant

unsupervised personal contacts with his lawyer, and, by eleven votes to

one, that the applicant's continued detention on remand constituted a

violation of Article 5, paragraph 3 (art. 5-3), of the convention;

Recalling that the case was brought before the Court by the Commission

on 15 October 1984;

Whereas in its judgment of 30 September 1985 the Court, having taken

formal note of a friendly settlement reached by the Government of

Austria and the applicant and having satisfied itself that there were

no reasons of public policy (ordre public) of a kind which would

necessitate the continuation of the proceedings, decided unanimously

to strike the case out of its list;

Whereas under the above-mentioned friendly settlement it was inter

alia agreed that:

- the applicant would receive lump-sum compensation of

154 336,62 Austrian Schillings, 54 336,62 Austrian Schillings thereof

being intended to cover costs and expenses incurred in the domestic

proceedings;

- the Government would reimburse the applicant for any scale fees

which he might have to pay in Austria for the friendly settlement, as

well as for his costs and expenses in the proceedings before the

European Court of Human Rights and in the negotiations leading to the

friendly settlement if they were not paid under the legal-aid scheme;

- the Government would propose to the legislative assemblies new

rules on the supervision of consultations between a suspect in

detention on remand and his lawyer when there is a danger of

suppression of evidence (Article 45, paragraph 3, of the Code of

Criminal Procedure) and, when so doing, would take account of the

observations of the Commission in its report of 12 July 1984;

Recalling that Rule 48, paragraph 3, of the Court's Rules provides

that the striking out of a case shall be effected by means of a

judgment which the President shall forward to the Committee of

Ministers in order to allow it to supervise, in accordance with

Article 54 (art. 54) of the convention, the execution of any

undertakings which may have been attached to the discontinuance or

solution of the matter;

Having invited the Government of Austria to inform it of the measures

taken for the execution of the undertakings attached to the solution

of the case;

Whereas, during the examination of the case by the Committee of

Ministers, the Government of Austria gave the Committee information

about the measures taken, which information appears in the appendix to

this resolution;

Having satisfied itself that the Government of Austria has paid the

applicant the sums provided for in the friendly settlement,

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 (88) 5

Information provided by the Government of Austria

during the examination of the Can case by the Committee of Ministers

1. The Austrian Government has paid the applicant the sums

provided for in the friendly settlement.

2. Article 45, paragraph 3, of the Code of Criminal Procedure has

been amended by the Penal Law Reform Act (Strafrechtsänderungsgesetz)

of 25 November 1987; this Act entered into force on 1 March 1988. The

new legislation takes account of the opinion expressed by the European

Commission of Human Rights in its report of 12 July 1984 concerning

the Can case.

In comparison with the previous position, the supervision of

conversations between, on the one hand, a person in detention because

of danger of collusion and, on the other hand, his defence counsel is

no longer obligatory. Article 45, paragraph 3, as amended, gives the

investigating judge a discretionary power in this regard and at the

same time restricts the possibility of supervision to exceptional

cases.

Prior to communication of the indictment, supervision of the detained

person's conversations with his defence counsel may take place:

- during the first fourteen days of judicial detention; however,

such supervision shall not take place if a risk of collusion as a

result of the conversations can be ruled out;

- after the first fourteen days of judicial detention, if there

are special circumstances which give grounds to fear that a

conversation without supervision might lead to collusion; the

investigating judge's decision in this regard must be reasoned and the

detained person can lodge an appeal against such a decision.

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