Lexploria

DISSENTING OPINION OF MR. S. TRECHSEL,

JOINED BY MESSRS. J.C. SOYER, H.G. SCHERMERS AND J. CAMPINOS

AND MRS G.H. THUNE

I share the Commission's opinion as to its conclusions under

Article 6 para. 1 of the Convention that the length of the criminal

proceedings in which the applicant was involved exceeded a reasonable

time.

To my great regret, however, I cannot follow the Commission's

view that the applicant's detention on remand did not exceed a

reasonable time.

In particular, I consider that Article 5 paras. 1 (c) and 3 of

the Convention were applicable in the present case.

The starting point is the judgment of the European Court of

Human Rights in the Wemhoff case according to which the relevant

period under Article 5 para. 3 ends with the day on which the charge

is determined by a court of first instance. Thereafter, the person is

in a position provided for by Article 5 para. 1 (a) of the Convention,

which authorises deprivation of liberty "after conviction" (judgment

of 27 June 1968, Series A No. 7, p. 23f para. 9), irrespective of

whether that "conviction" has become definitive or not and whether,

under national law, it could be executed or not.

The Court has not reexamined this issue since the Wemhoff

case, though it has occasionally been confronted with the scope of

Article 5 para. 1 (a). Thus it has held that

"The word 'after' in sub-paragraph (a) does not simply mean

that the detention must follow the 'conviction' in point of

time: in addition, the detention must result from, follow

and depend upon or occur by virtue of the 'conviction' ...

In short, there must be a sufficient causal connection

between the conviction and the deprivation of liberty at

issue ..." (Eur. Court H.R., Monnell and Morris judgment

of 2 March 1987, Series A No. 115, p. 17f para. 40;

van Droogenbroeck judgment of 24 June 1982 Series A No. 50,

p. 19 para. 35)

I consider that this case-law calls for a reconsideration of

the position of detention following conviction by a court of first

instance within the system of Article 5 para. 1 of the Convention. The

question arises in particular as to whether the applicant's detention

between 16 November 1982 and 19 December 1985 falls to be considered

under Article 5 para. 1 (a) of the Convention in that there was a

"sufficient causal connexion" between the judgment of the Regional

Court of 16 November 1982 and the applicant's subsequent deprivation

of liberty. In resolving this issue, I note that the Court, when

interpreting the terms "sufficient causal connection", has relied

substantially on the domestic law in question (see Monnell and Morris

judgment, ibid., p. 19 para. 46).

At this stage it is useful to consider the domestic legal

situation. According to Section 397 of the Austrian Code of Criminal

Procedure, a court judgment imposing a prison sentence is not executed

as long as the person in question has filed a remedy endowed with

suspensive effect and the appeal proceedings are still pending.

In the present case the Salzburg Regional Court sentenced the

applicant on 16 November 1982 to eight years' imprisonment. The

applicant thereupon filed a plea of nullity and an appeal. According

to Sections 284 para. 3 and 294 para. 1 of the Code of Criminal

Procedure, both these remedies are endowed with suspensive effect.

The applicant's conviction and sentence only acquired legal force

under Austrian law on 19 December 1985, on which date the applicant's

detention on remand was transformed into detention following

conviction.

Under Austrian law, the applicant's deprivation of liberty

after the judgment of the Regional Court of 16 November 1982 was

clearly not the result of the conviction because at that time the

latter had not acquired legal force. Rather, the proceedings

concerning the charges against him were then still pending, and the

applicant was still detained on remand for the purpose of appearing

before the court within the meaning of Article 5 para. 3 of the

Convention. In fact, during this period of time the applicant had not

been proved guilty according to law and was therefore to be presumed

innocent within the meaning of Article 6 para. 2 of the Convention.

It cannot therefore be said that the applicant's detention

between 16 November 1982 and 19 December 1985 "resulted from, followed

and depended upon or occurred by virtue of the 'conviction'" of the

Regional Court of 16 November 1982. On the other hand, there was a

"sufficient causal connection" between the judgment of the Supreme

Court dismissing the applicant's plea of nullity and reducing the

sentence on his appeal, and the concomitant sentence which he then

commenced to serve.

It is true that the Court held in its judgment in the Wemhoff

case that Article 5 para. 3 could not lend itself to such an

interpretation for the decisive reason that it "would exclude the

arrest at the hearing of convicted persons who appeared for trial

while still at liberty" (ibid., p. 23f. para. 9). However, I find

that Article 5 para. 1 (c) could equally be invoked when undertaking

such an arrest. In fact, under Austrian law, as long as the

conviction has not acquired legal force such an arrest at the trial

is possible if the grounds for detention on remand according to

Section 180 of the Code of Criminal Procedure are met.

I should also point out the following flaws when applying

Article 5 para. 1 (a) to detention following the first instance

judgment. Let us assume, first, that a person is being prosecuted and

the first instance court acquits him of the charges brought against

him. The Public Prosecutor then appeals against the acquittal. In

this case, under Austrian law - and the same applies for other legal

systems of the continental type - the defendant can be kept in

detention. Here we are clearly faced with detention on remand and

Article 5 para. 3 applies.

Let us assume, second, that a person detained on remand is

convicted in first instance and, upon appeal, acquitted of the charges

brought against him. Here, under domestic law he is a free man, and

on account of the presumption of innocence he will never have been

considered guilty. Yet, if the detention on remand after the first

instance conviction were to fall under Article 5 para. 1 (a), he must

actually be considered as having served a prison sentence!

A further problem arises, if we examine the situation created

by the "Wemhoff-approach" on the national level, taking Austria as an

example. Under the national law of criminal procedure, the applicant

was detained on remand up to 19 December 1985 and he could claim the

specific protection of Article 5 para. 3. Under the Convention,

however, the same detention would fall to be considered under

Article 5 para. 1 (a), and the specific protection of para. 3 would

be lacking. By giving precedence to Convention law over national

law, the authorities could put the applicant in a less favourable

position. This would run contrary at least to the spirit of

Article 60 of the Convention.

As a result I conclude that the applicant's detention on

remand between 16 November 1982 and 19 December 1985 falls to be

considered under Article 5 para. 1 (c) taken together with para. 3

rather than under para. 1 (a) of Article 5 of the Convention.

The entire period of detention on remand to be taken into

account under Article 5 para. 3 of the Convention thus lasted from

1 July 1980 until 19 December 1985, i.e. five years, five months and

18 days.

This period is not reasonable under Article 6 para. 1, and

even less so under Article 5 para. 3.

As a result I come to the conclusion that, in the present

case, there has also been a violation of Article 5 para. 3.

It is true, as the majority of my colleagues imply, that my

approach leads to a certain inequality between different legal

systems. However, such inequality is pre-existent and cannot be

blamed on a specific interpretation of the Convention. On the other

hand, I would find it unacceptable to create uniformity by using the

Convention to lower the level of protection for, e.g., defendants in

Austria.

&SAPPENDIX I&-

HISTORY OF PROCEEDINGS

Date Item

----------------------------------------------------------------------

10 January 1986 Introduction of the application

29 January 1986 Registration of the application

Examination of admissibility

8 July 1986 Commission's deliberations and decision to

invite the Government to submit observations

on the admissibility and merits of the

application

13 October 1986 Government's observations

1 December 1986 Applicant's observations in reply

7 May 1987 Commission's deliberations and decision to

declare the application partly admissible

Examination of the merits

10 October 1987, Commission's consideration of the state

5 March and of proceedings

7 May 1988

12 December 1988 Commission's deliberations on the merits

and final vote

14 December 1988 Adoption of the Report

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BÖHLER v. AUSTRIADISSENTING OPINION OF MR. S. TRECHSEL,

BÖHLER v. AUSTRIADISSENTING OPINION OF MR. S. TRECHSEL,

LEXI