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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> TOTH v. AUSTRIA - 11894/85 [1991] ECHR 72 (12 December 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/72.html
Cite as: (1992) 14 EHRR 551, 14 EHRR 551, [1991] ECHR 72
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In the case of Toth v. Austria*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court***, as a Chamber composed
of the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Sir Vincent Evans,
Mr A. Spielmann,
Mr S.K. Martens,
Mr I. Foighel,
Mr R. Pekkanan,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 27 May and 25 November 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 47/1990/238/308. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 15 October 1990
and then by the Government of the Republic of Austria ("the
Government") on 18 December 1990, within the three-month period
laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47)
of the Convention. It originated in an application (no. 11894/85)
against Austria lodged with the Commission under Article 25
(art. 25) by an Austrian national, Mr Stefan Toth, on
12 October 1985.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Article 48
(art. 48). The object of the request and of the application was to
obtain a decision as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under
Article 5 paras. 3 and 4 (art. 5-3, art. 5-4).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 26 October 1990,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr Thór Viljhálmsson,
Sir Vincent Evans, Mr A. Spielmann, Mr N. Valticos,
Mr S.K. Martens, Mr I. Foighel and Mr R. Pekkanen (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr F. Gölcüklü, substitute judge, replaced
Mr J. Cremona, who was unable to take part in the further
consideration of the case and who had first replaced Mr Valticos,
likewise unable to take part (Rules 22 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Government, the Delegate of the Commission and the
applicant's lawyer on the organisation of the proceedings
(Rules 37 para. 1 and 38). In accordance with the order made in
consequence, the Registrar received the Government's memorial
on 13 February 1991 and the applicant's memorial on 7 March 1991.
On 9 April the Secretary to the Commission informed the Registrar
that the Delegate would submit his observations at the hearing.
On 26 November 1990 the President had authorised the applicant to
use the German language (Rule 27 para. 3).
5. On 14 May 1991 the Commission produced the documents in the
proceedings before it, as requested by the Registrar on the
President's instructions.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on
22 May 1991. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr H. Türk, Ambassador, Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mrs S. Bernegger, Federal Chancellery,
Mrs I. Gartner, Federal Ministry of Justice, Advisers;
(b) for the Commission
Sir Basil Hall, Delegate;
(c) for the applicant
Mrs K. Hermann, Rechtsanwältin, Counsel.
The Court heard addresses by the above-mentioned representatives.
7. On the occasion of the hearing, the Agent of the Government
filed a document. On 17 October he provided information requested
by the Registrar on the President's instructions.
AS TO THE FACTS
I. The particular circumstances of the case
8. Mr Stefan Toth, an Austrian national residing in Graz,
works washing dishes in a restaurant.
9. On 1 June 1984 the Salzburg Regional Court (Landesgericht)
issued a warrant for his arrest (Haftbefehl). He was suspected of
aggravated fraud (schwerer Betrug), aided and abetted by a certain
J. M.; he had in particular made out a number of bad cheques drawn
on bank accounts opened by J. M., then cashed in different banks.
The warrant stated that there was a risk of his absconding
(Fluchtgefahr), because his address was unknown, and of repetition
of the offences (Wiederholungsgefahr), as Mr Toth had several
previous convictions.
10. On 24 August 1984 the same court issued an international
arrest warrant (Steckbrief) concerning the applicant. It referred
to eleven cases of attempted fraud or aggravated fraud involving
more than one million Austrian schillings and affecting financial
establishments of various towns in the Federal Republic of Germany
and Austria. It mentioned a certain B. as the third co-accused.
11. On 11 January 1985 at 11 p.m. the police arrested Mr Toth
at the airport of Graz, the town where he was living, although not
duly registered there as a resident; he had been waiting for a
friend. He was then taken to Feldkirchen.
A. The investigation proceedings
1. The police custody
12. An investigating judge of the Graz Regional Court
interviewed the applicant the following day at 10.40 a.m.
According to the document entitled "Examination of the accused"
(Vernehmung des Beschuldigten), the judge informed him that the
arrest warrants were based on suspicion of several offences of
aggravated fraud and that the police custody (Verwahrungshaft) was
intended to guard against the risk of his absconding and the risk
of collusion (Verabredungsgefahr).
On 17 January 1985 Mr Toth was transferred to Vienna and then
on 22 January to Salzburg.
2. The initial phase of the detention on remand
13. On 23 January 1985 he was examined by an investigating
judge of the Salzburg Regional Court. He signed the document
"Examination of the accused", which indicated that a preliminary
investigation (vorläufige Untersuchung) had been opened and that he
had been placed in detention on remand because of the risk of his
absconding and that of repetition of the offences (Article 180
paras. 1 and 2 of the Code of Criminal Procedure).
14. The same day the Regional Court ordered his detention
pending trial, for the reasons invoked by the investigating judge.
Previously Mr Toth had tried to evade prosecution by changing his
place of residence so that if released he was liable to evade trial
or to go into hiding to forestall his future conviction. In
addition, he was not socially integrated and was unemployed, which
gave grounds for fearing new offences, likely to have serious
consequences, of the type of those which had already brought him
two convictions.
15. The investigating judge questioned Mr Toth on 25, 28, 29,
30 and 31 January and on 1 February.
16. On 7 February the Swiss authorities indicated by telex
message that they were contemplating asking Austria to prosecute
the applicant for offences committed in Switzerland.
3. The application for release of 15 February 1985
17. On 15 February 1985 Mr Toth applied for his release. He
maintained that he could provide proof both of a permanent place of
residence at his sister's home and of prospects of employment.
18. The same day the investigating judge took cognisance of a
further complaint. On 19 February he ordered the police to make
inquiries in connection with the offences that the applicant had
allegedly committed in Switzerland and asked the Vienna Regional
Criminal Court to send him a file. The Government did not provide
any details on these various points.
19. On 27 February the Ratskammer (Review Chamber) of the
Regional Court of Salzburg dismissed his application for release,
following a hearing at which the applicant appeared with his
lawyer. It reiterated the grounds given in the decision of
23 January and added that other measures less stringent than
detention would not be sufficient to attain the aims pursued
thereby.
20. On 1 March 1985 the file was again returned to the
investigating judge. Between 6 and 19 March it was handed over to
the Salzburg public prosecutor's office and to the Linz Court of
Appeal in connection with the extension of the detention on remand
of the co-accused J. M., before being sent back to the Salzburg
court.
The investigating judge, who was away on leave from 20 March
to 15 April, questioned Mr Toth on 30 April about J. M. On 15 May
he requested documents from two Munich banks.
21. From 26 April to 1 May the applicant served a prison
sentence, imposed by the Salzburg District Court for a customs
offence.
4. The first extension of the detention on remand (19 June 1985)
22. On an application by the investigating judge, made on
7 June 1985, the Linz Court of Appeal (Oberlandesgericht) decided
on 19 June 1985, in private session, to extend the maximum duration
of the detention on remand to eight months from 23 January 1985.
The aggravated fraud of which the accused was strongly suspected
had resulted in a loss of more than 2,000,000 Austrian schillings.
The file had become exceptionally voluminous on account of the
large number of facts and of the contradictions in Mr Toth's
statements and those of his co-accused. The most recent findings
of the investigation, and the scope and complexity of the case,
made it necessary to leave the prosecuting authorities sufficient
time to prepare the indictment and, if necessary, the subsequent
proceedings in the assize court. There were grounds for fearing
that the accused would evade the trial and commit new offences.
Finally, less stringent measures than detention were held to be
inadequate.
23. On 24 June the investigating judge wrote again to one of the
two Munich banks.
24. On 9 July 1985 Mr Toth challenged the decision of the Court
of Appeal in the Supreme Court (Oberster Gerichtshof), arguing that
he had a permanent place of residence in Austria, prospects of
employment and that he was greatly attached to his girlfriend. On
16 July he insisted that his file be forwarded, although the judge
had pointed out to him the futility of this step. On
22 August 1985 the Supreme Court found the appeal inadmissible.
The file was returned to the investigating judge on
11 September 1985.
5. The application for release of 12 September 1985
25. On 12 September 1985 Mr Toth asked the Salzburg Regional Court
to order his release as the period of eight months set by the Linz
Court of Appeal had expired. The European Court is not aware of
how this application was dealt with.
6. The second extension of the detention on remand
(18 September 1985)
26. On 18 September 1985 the Linz Court of Appeal, sitting in
private session, extended the maximum duration of the detention on
remand to eleven months, as it had been requested to do by the
investigating judge on 9 September. On the matter of the danger of
the applicant's absconding and of repetition of the offences, it
found that the circumstances had remained unchanged and therefore
referred to the grounds of the decisions of 27 February and
19 June 1985. It also considered that the reasons given ruled out
other measures less stringent than detention.
27. On 24 September the Salzburg Regional Court extended the
investigation to cover a charge of arson in Switzerland. Mr Toth
filed an appeal (Beschwerde) against this decision, which was
dismissed by the Ratskammer on 2 October 1985, inter alia, because
no supporting grounds were submitted.
28. When the investigating judge considered that the
preliminary investigation was terminated, he sent the file
on 2 October 1985 to the Salzburg public prosecutor's office
(Staatsanwaltschaft). On 31 October that office requested further
investigative measures, which were ordered on 7, 15
and 19 November.
On 3 December the file was forwarded to the Linz Court of Appeal
for its decision on Mr Toth's detention.
7. The application for release of 26 September 1985
29. On 26 September 1985 Mr Toth submitted an application for
release to the Constitutional Court (Verfassungsgerichtshof), which
declared it inadmissible on 28 February 1986.
8. The third extension of the detention on remand
(11 December 1985)
30. On 11 December 1985 at the request of the investigating judge
and the public prosecutor's office, the Linz Court of Appeal,
sitting in private session, extended the maximum duration of the
detention to fifteen months. In addition to the reasons given in
the previous decisions, it noted that the accused was also
suspected of having incited another person to burn down a
restaurant in Switzerland, causing damage of 300,000 Swiss francs.
It noted further that the investigation was not yet completed
because of the amount of the evidence.
9. The application for release of 13 December 1985
31. On 13 December 1985 the applicant again applied for his
release. On 20 December the file was transmitted to the Ratskammer
of the Salzburg Regional Court, which dismissed the application on
2 January 1986 at the end of a hearing attended by Mr Toth and his
lawyer. The investigation, at the stage which it had reached, gave
credence to the allegations of fraud and of issuing bad cheques for
2,000,000 Austrian schillings levelled at Mr Toth. As to the risks
of his absconding and of repetition of the offences, the position
had not changed since the decision of 11 December 1985.
32. The same day the investigating judge questioned the
applicant in connection with the statements of S. R., another
co-accused who had implicated him, and organised a confrontation
between them.
33. On 16 January 1986 Mr Toth challenged the decision of
2 January in the Linz Court of Appeal. That court dismissed the
appeal on 22 January in private session, "after hearing the
submissions of the principal public prosecutor's office" ("nach
Anhörung der Oberstaatsanwaltschaft"), but without having summoned
or heard the accused and his lawyer. It feared that the applicant
would abscond and cross the frontier clandestinely; it was
immaterial whether it was true, as the applicant claimed, that he
did not have identity papers allowing him to go to Germany, that he
was banned from entering that country and that he faced prosecution
in Switzerland. There was also a risk of repetition of the
offences as the applicant had five previous convictions, including
a sentence to twenty months' imprisonment, imposed by the Stuttgart
Regional Court, for fraud and forgery. The Court of Appeal did not
consider that the duration of the detention was excessive at that
stage, having regard to the likely sentence in the event of
conviction, and deemed the grounds for the detention sufficiently
well-founded to rule out other less stringent measures.
34. The investigating judge questioned the applicant for the
last time on 22 January 1986. He then went on leave from 1 to
14 February. On 19 February he wrote to an Austrian bank asking
for various documents.
10. The conclusion of the investigation
35. By decision of 26 February 1986, the investigating judge
concluded the preliminary investigation.
B. The trial proceedings
1. The indictment
36. On 12 March 1986 the Salzburg public prosecutor's office
indicted Mr Toth for various instances of attempted aggravated
fraud and of aggravated fraud, as well as forgery of a "specially
protected document" (besonders geschützte Urkunde). According to
the indictment, which was seventeen pages long, the applicant had
drawn cheques on various banks in Germany, Austria and Switzerland
and had instructed B. and J. M. to cash them in other banks in
these countries; the resulting loss amounted to 950,000 Austrian
schillings for the offences of aggravated fraud, and to
1,250,000 schillings for those of attempted fraud; the accused
already had two convictions for fraud and receiving stolen goods
and he was facing prosecution in Germany for nineteen offences of
cheque fraud. The prosecuting authorities stated that further
investigations were envisaged because the applicant was suspected
of arson as well as other instances of aggravated fraud.
37. On 19 March 1986 the indictment was communicated to
Mr Toth, who challenged it on 4 April, but to no avail.
On 11 April the Linz Court of Appeal took the view that the
conclusions of the investigation were sufficient to support the
charges pending against him; it therefore committed him for trial.
2. The fourth extension of the detention on remand
(11 April 1986)
38. The same day, but by a separate decision, the Court of
Appeal ruled in private session on a request from the investigating
judge of 4 April; it extended to seventeen months the maximum
duration of the detention on remand, having regard to the scope and
the complexity of the investigation. In its view, no new evidence
in Mr Toth's favour had come to light since 22 January 1986.
39. On 30 April the file was transmitted to the trial court,
the Salzburg Regional Court, which, on 23 May, set down the trial
for 11 June 1986.
40. On 5 June the applicant's lawyer indicated that he no
longer wished to represent Mr Toth. However, he was urged not to
withdraw before 11 June.
41. Mr Toth's trial opened on the appointed day, but the court
adjourned it sine die at the end of the first hearing, for further
inquiries to be undertaken, and appointed a lawyer to act for him.
The transcript of the hearing ran to 116 pages.
3. The application for release of 16 June 1986
42. On 16 June 1986 the applicant again applied for his
release, claiming that he had a permanent place of residence in
Austria and confirmation of steady employment.
43. His application was dismissed on 25 June by the Ratskammer
of the Salzburg Regional Court, then on 9 July by the Linz Court of
Appeal where the file had been sent on 3 July. The two courts gave
the same reasons as previously. The second gave its decision in
private session, "after hearing the submissions of the principal
public prosecutor's office".
44. On 24 July, ten days after the return of the file, the
Salzburg Regional Court sought information from the Vienna Regional
Court on the matter of the proposed date for B.'s release. On
29 July it requested a German court to communicate to it a
decision, which was received on 18 August.
4. The application for release of 25 July 1986
45. Claiming that he was financially and socially integrated
and that he lacked the necessary funds to flee, Mr Toth filed a
further application for release on 25 July 1986.
The Ratskammer of the Salzburg Regional Court dismissed it
on 30 July and the Linz Court of Appeal on 20 August, the latter
"after hearing the submissions of the principal public prosecutor's
office". The two courts reiterated the grounds given in their
previous decisions.
46. On 22 September the Regional Court contacted the Hirtenberg
detention centre for information concerning the date of B.'s
probable release and his address thereafter. On the same day it
sent letters rogatory to the Swiss Federal Police Department and to
the District Court of Aschaffenburg (Germany) for information in
respect of the witness D. On 15 October the Aschaffenburg District
Court replied that it did not know D.'s address. On 20 October the
Salzburg Regional Court obtained the address by telephoning
Frankfurt prison and requested the District Court of that town to
question D.
On 25 September the file had been communicated to a court expert,
who had lodged his report on J. M. on 8 October.
5. The application for release of 28 October 1986
47. Ruling in private session on 12 November 1986 and giving
the same reasons as in its previous decisions, the Ratskammer of
the Salzburg Regional Court refused to allow Mr Toth's application
for release of 28 October.
48. On 17 November Mr Toth filed an appeal which was dismissed
by the Linz Court of Appeal on 26 November, "after hearing the
submissions of the principal public prosecutor's office". It noted
that J. M. had implicated the applicant, who had not succeeded in
allaying the suspicions concerning him. For the rest, it
reiterated in substance the reasons given in its previous
decisions. The file was returned to the Salzburg Regional Court on
1 December.
49. In the meantime, on 12 November, Mr Toth had stated that he
wished to dispense with the services of the lawyer appointed to act
for him. On 16 December the Bar declared that it saw no reason to
appoint another defence lawyer.
50. On 17 November the applicant complained that no date had
been set down for the trial hearing. He was informed that the
court was waiting for the examination of D. which was to take place
on 27 November in the Frankfurt District Court.
On 3 December the latter court communicated to the Austrian
authorities the transcript of the examination of D.
51. On 12 and 16 December 1986, the trial court requested the
police of Dornbirn and Bregenz to provide it with the addresses of
B. and S. R.; on 22 January 1987 it sought information on the
former from the headquarters of the Salzburg federal police.
6. The applicant's application for release of 31 December 1986
52. On 31 December 1986 Mr Toth once again sought his release.
The Ratskammer of the Salzburg Regional Court rejected his
application on 21 January 1987.
7. The applicant's release
53. A further application for release was submitted to the
Ratskammer of the Salzburg Regional Court on 21 January 1987; it
was dismissed on 28 January.
On 18 February the Linz Court of Appeal allowed the appeal which
Mr Toth had filed on 3 February. It took the view that nearly
twenty-five months' detention had significantly reduced the risk of
the applicant's absconding and of repetition of the offences and
made it possible to impose more lenient measures. It attached
several conditions to the release: an undertaking not to evade the
trial and not to go into hiding before the conclusion of the trial
or to impede the investigation; it imposed an obligation to choose
a permanent place of residence in Austria and to communicate it to
the court and to report every two days to the police; his identity
papers were provisionally confiscated.
The applicant was released on the same day.
8. The additional indictment
54. On 9 July 1987 the Salzburg prosecuting authorities drew up
an additional indictment, nine pages long. In it Mr Toth was
charged with having, being aided and abetted by S. R., committed
other offences of fraud by seeking to cash fraudulently in Germany,
Austria and Switzerland bad cheques, which had allegedly caused a
loss of approximately 800,000 Austrian schillings. These offences
were therefore offences punishable by a term of imprisonment of
from one to ten years (Article 147 para. 3 of the Criminal Code).
The applicant appealed against this new indictment, but his appeal
was dismissed by the Linz Court of Appeal on 30 September.
55. The same day an application by Mr Toth to the Salzburg
Regional Court concerning the conditions imposed on him was
allowed, but only in part. He was authorised to report to the
police only once a week. The applicant appealed to the Linz Court
of Appeal, but his appeal was dismissed on 4 November 1987.
9. The trial
56. On 22 February 1988 the Regional Court set down the trial for
25 and 26 May. On that last date, it found the accused guilty of
aggravated fraud and sentenced him to four and a half years'
imprisonment, the pre-trial detention being automatically deducted
from the sentence. The text of the judgment comprised sixty-nine
pages.
By a judgment of 23 February 1989 the Linz Court of Appeal reduced
the sentence to four years. On 6 May 1990 the Salzburg Regional
Court stayed enforcement of that sentence.
II. The relevant domestic law
A. Detention on remand
57. Under Article 180 paras. 1 and 2 of the Code of Criminal
Procedure, as amended on 2 March 1983, a person may be held in
detention on remand - where there are serious grounds for
suspecting him of having committed a criminal offence - if there is
a risk of his absconding, of collusion or of repetition of the
offences.
58. A risk of absconding may not be presumed if the sentence
for which the accused is liable does not exceed five years'
imprisonment, if he leads a normal life and if he has a permanent
residence in Austria, unless he has already attempted to evade
trial (para. 3).
59. According to Article 193, detention may not last more than
two months if it is based only on the danger of collusion, or more
than six months if it is based on the other reasons.
The second-instance court may however, if the investigating judge
or the prosecuting authorities so request and if the complexity or
scope of the investigation makes it necessary, extend the detention
up to a maximum of three months in the case of suspected collusion,
and one year where the other grounds are relied on, or even two if
the sentence risked exceeds five years (paras. 3 and 4). In
exercising this power the appellate court sits in private session
in the absence of the detainee and his lawyer; it gives the
principal public prosecutor's office the opportunity to make
submissions (para. 2).
Detention founded on a reason other than the risk of collusion
alone is subject to no time-limit as soon as the trial has begun
(para. 5).
60. The accused may lodge an application for release at any
time (Article 194 para. 2). Under Articles 194 and 195, such an
application is to be examined by the Ratskammer of the Regional
Court in a private hearing, in the presence of the accused and his
lawyer; in the appeal court - whether on appeal by the detainee or
the prosecuting authorities - the oral proceedings are also
conducted in private, in the presence of an official from the
principal public prosecutor's office, but without the accused and
his lawyer.
Where no such application is lodged, the Ratskammer automatically
reviews the detention when it has lasted two months or when three
months have elapsed since the last hearing and the accused does not
have a lawyer (Article 194 para. 3).
The fact that an indictment has become final or that the date for
the opening of the trial has been fixed means that no further
review hearings are conducted. Decisions concerning the
continuation of the accused's detention are thereafter taken by the
Ratskammer in private session (Article 194 para. 4).
61. Detention on remand comes to an end, at the latest, when
the accused begins to serve his sentence, from which the time spent
on remand is automatically deducted (Article 38 of the Criminal
Code).
B. Alternative measures to detention on remand
62. Article 180 para. 4 of the Code of Criminal Procedure
requires that detention on remand be not extended where its aims
may be attained by one or more more lenient measures. The main
measures envisaged in this respect are the following (Article 180
para. 5): undertaking not to abscond, to hide or to leave the place
of residence without the authorisation of the investigating judge;
promise not to impede the inquiry; obligation to reside in a
specific place or to refrain from frequenting a given locality or
from consuming alcoholic beverages; duty to inform the police of
changes of address; temporary withdrawal of passport or driving
licence; lodging of security; provisional appointment of a
probation officer.
Article 190 makes provision for the possibility of release on bail
when the offence in question is punishable by a term of
imprisonment of not more than ten years and where detention on
remand has been ordered to counter the danger of the accused's
absconding.
PROCEEDINGS BEFORE THE COMMISSION
63. In his application of 12 October 1985 to the Commission
(no. 11894/85), Mr Toth formulated a number of complaints
concerning his arrest and his detention on remand and the length of
the criminal proceedings as well as the conduct of the Austrian
authorities and courts.
64. On 8 May 1989 the Commission declared the application
admissible as regards the length of the detention on remand and in
relation to the proceedings before the Linz Court of Appeal. In
its report of 3 July 1990 (Article 31) (art. 31), it expressed the
opinion that there had been a violation of paragraphs 3 and 4 of
Article 5 (art. 5-3, art. 5-4). The full text of its unanimous
opinion and of the separate concurring opinion contained in the
report is reproduced as an annex to this judgment*.
__________________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 224 of
Series A of the Publications of the Court), but a copy of
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)
65. Mr Toth relied on Article 5 para. 3 (art. 5-3), which is
worded as follows:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article (art. 5-1-c) ...
shall be entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by
guarantees to appear for trial."
He claimed that the length of his pre-trial detention amounted to
a breach of that provision, an allegation contested by the
Government but accepted by the Commission.
A. Period to be taken into consideration
66. The period to be taken into consideration began on
11 January 1985, the date of the arrest, and ended on
18 February 1987, with the applicant's release following the
decision of the Linz Court of Appeal allowing his appeal (see
paragraphs 11 and 53 above), less the period - from 26 April to
1 May 1985 - during which the applicant was serving a prison
sentence (see paragraph 21 above). It therefore lasted two years,
one month and two days.
B. Reasonableness of the length of the detention
67. It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial
detention of an accused person does not exceed a reasonable time.
To this end they must examine all the circumstances arguing for and
against the existence of a genuine requirement of public interest
justifying, with due regard to the principle of the presumption of
innocence, a departure from the rule of respect for individual
liberty and set them out in their decisions on the applications for
release. It is essentially on the basis of the reasons given in
these decisions and of the true facts mentioned by the detainee in
his applications for release and his appeals that the Court is
called upon to decide whether or not there has been a violation of
Article 5 para. 3 (art. 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 cited 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, as the most recent authority,
the Kemmache v. France judgment of 27 November 1991, Series A
no. 218, p. 23, para. 45).
1. The justification of the detention
68. In dismissing Mr Toth's applications for release, the courts
put forward in essence two reasons: the need to prevent the
repetition of the offences and the need to guard against the danger
of his absconding.
(a) The risk of repetition of the offences
69. According to the Government there was a genuine risk of
repetition of the offences because the applicant had several
previous convictions for offences similar to those which were the
subject of the proceedings pending against him.
Mr Toth argued on the contrary that those convictions did not
constitute sufficient justification.
70. The Court notes that the contested decisions took account of
the nature of the earlier offences and the number of sentences
imposed as a result, although they differed to some extent between
each other on that last point (see paragraphs 14 and 33 above). It
shares the Commission's view that the national courts could
reasonably fear that the accused would commit new offences.
(b) The danger of absconding
71. The Government further contended that there had been a danger
of the applicant's absconding. They cited the severity of the
sentence risked by Mr Toth and the gravity of the charges pending
against him. They drew attention to the earlier attempts by the
applicant to evade prosecution by frequently changing address
without registering with the authorities. They added that the
courts called upon to rule on Mr Toth's pre-trial detention had
envisaged less stringent measures, but ultimately decided against
them.
The applicant, for his part, argued that he had a permanent
residence in Austria and could easily obtain steady employment
which would ensure his re-integration into society.
72. Like the Commission, the Court considers that the national
courts based their decisions on grounds which provided a sufficient
explanation as to why, notwithstanding the arguments advanced by
Mr Toth in support of his applications for release, they considered
the danger of his absconding decisive (see paragraphs 19, 22, 26,
30, 31, 33, 38, 43, 45, 47 and 48 above).
(c) Conclusion
73. In sum the reasons put forward for dismissing Mr Toth's
applications were both relevant and sufficient.
2. The conduct of the proceedings
74. According to the applicant, various inquiries were still in
progress when he was indicted and the trial had been set down for
11 June 1986 only in order to make it possible to prolong his
detention without a time-limit.
75. The Government took the view that the length of that detention
was in no way unreasonable. They stressed in the first place the
complexity and scope of the case. Comparing it with the case of B.
v. Austria (judgment of 28 March 1990, Series A no. 175), they
referred in support of their argument to the size of the file
(twelve volumes) and the length of the first-instance judgment
(sixty-nine pages). They also drew attention to the dates of the
measures taken in the proceedings in order to show that the
authorities had displayed diligence throughout almost all the
periods criticised by the Commission in its report (see
paragraph 76 below), which corresponded essentially to the holidays
of the investigating judge. Finally they emphasised the large
number of applications for release made by Mr Toth and therefore
held him partly responsible for the length of his detention.
76. The Commission acknowledged that the investigation raised
some difficult questions of fact which contributed to lengthening
the proceedings. It also considered that several of the
applications and appeals by the applicant must have had the same
effect, although it did not regard the number of such steps as
excessive.
On the other hand, it drew up a list of seven periods of inactivity
totalling approximately eleven months: from 19 February (launching
of the inquiry into offences committed in Switzerland) to
30 April 1985 (questioning of the applicant), from 24 June (letter
from the investigating judge to a German bank) to 24 September 1985
(extension of the investigation), from 19 November 1985 (decision
allowing the prosecuting authorities' request for further
inquiries) to 2 January 1986 (questioning of Mr Toth), from
22 January (final interrogation of the applicant) to
26 February 1986 (conclusion of the preliminary investigation),
from 11 June (adjournment of the trial hearing) to 24 July 1986
(request for information from the Vienna Regional Court), from
18 August (receipt of a German judicial decision) to
22 September 1986 (despatch of two letters rogatory) and from
8 October (filing of report by a court expert on a co-accused) to
12 November 1986 (when Mr Toth dispensed with the services of the
lawyer appointed to act for him) (see paragraphs 18-20, 23-35 and
41-46 above).
Even the tasks normally connected with such proceedings and not
listed in the documents of the proceedings - such as studying of
the papers, preparation of examinations, drawing up of official
requests for information and so on - did not, in the Commission's
view, excuse all the delays noted in the present case. In short,
the proceedings had not been conducted with due expedition.
77. The Court fully appreciates that the right of an accused in
detention to have his case examined with particular expedition must
not unduly hinder the efforts of the judicial authorities to carry
out their tasks with proper care (see, mutatis mutandis, the
Wemhoff judgment of 27 June 1968, Series A no. 7, p. 26, para. 17).
However, the evidence discloses that the Austrian courts did not in
this instance act with all the necessary dispatch.
The length of the proceedings - as far as relevant in the present
context - would in fact seem essentially not to be attributable
either to the complexity of the case or to the applicant's conduct.
Although the offences of which Mr Toth was accused were numerous
and concerned several countries, they were relatively commonplace
and repetitive. As far as his appeals were concerned, some were
bound to fail from the outset, such as that of 9 July 1985 to the
Supreme Court and that of 26 September 1985 to the Constitutional
Court (see paragraphs 24 and 29 above); however, they scarcely
slowed down the examination of the case.
On the other hand, the speed of the investigation suffered
considerably from the transmission of the whole file to the
relevant court not only on the occasion of each application for
release and each appeal by Mr Toth, but also on that of each
request from the investigating judge or public prosecutor for the
extension of the detention. There were therefore numerous
interruptions because the officers concerned relinquished the file,
sometimes for quite long periods, to their colleagues (see
paragraphs 20, 24, 28, 31, 39, 43-44, 46 and 48 above). Preferred
to the use of copies, which is the practice in other member States
of the Council of Europe, such toing and froing of the file
occurred both before the indictment and after it (see, mutatis
mutandis, the König judgment of 28 June 1978, Series A no. 27,
p. 36, para. 104). As in practice it had the effect of suspending
the investigation during the examination of the question whether
the detention should be continued and, consequently, of delaying
the applicant's release accordingly, it can hardly be reconciled
with the importance attached to the right to liberty secured under
Article 5 para. 1 (art. 5-1) of the Convention.
78. In conclusion, there has been a violation of
Article 5 para. 3 (art. 5-3).
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)
79. The applicant also relied on Article 5 para. 4 (art. 5-4),
according to which:
"Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful."
In his submission, the proceedings before the Linz Court of Appeal
had not been adversarial either when it ruled on his applications
for release or when it authorised the extension of his pre-trial
detention.
A. Proceedings concerning the applications for release
1. Government's preliminary objection
80. The Austrian Government raised a preliminary objection in that
Mr Toth had not formulated before the Commission, within the
six-month period provided for in Article 26 (art. 26) in fine of
the Convention, any complaint concerning his absence and that of
his lawyer during the examination of his appeals against the
dismissal of his applications for release by the Salzburg Regional
Court.
They relied in this respect on the letters which Mr Toth sent to
the Secretariat on 5 and 26 December 1985, then on 4 July and
11 December 1986, to supplement his initial application of
12 October 1985. The first two letters concerned the decisions of
the Court of Appeal, of 19 June and 11 December 1985, in respect of
the extension of the detention. The third and fourth dealt with
its length. Mr Toth, who was assisted by a lawyer throughout the
domestic proceedings, must have been aware both of the
participation of a member of the public prosecutor's office in the
hearings on the applications for release and of the differences
between the two categories of proceedings at issue.
81. At the hearing the Delegate of the Commission invited the
Court to reconsider its case-law concerning its jurisdiction to
hear such preliminary submissions.
In addition, he made two observations, reiterating in substance the
relevant passages of the decision of 8 May 1989 on the
admissibility of the application. In the first place, as early as
5 December 1985, Mr Toth complained that he had been unable to
participate in the hearing before the Court of Appeal on the
extension of his detention; subsequently, in his letter of
4 July 1986 after the Court of Appeal had on 22 January 1986 for
the first time dismissed upon appeal his request to be released
from detention he wrote that he now extended the scope of his
application. This approach led the Commission to conclude not that
he was dealing separately with two different types of proceedings
before the Court of Appeal, but that he also complained of his not
having been heard when his appeal was before the Court of Appeal.
Furthermore, the letters of 5 December 1985 and 4 July 1986 must be
viewed as a whole; and the latter was sent less than six months
after 22 January 1986, the date on which the Court of Appeal ruled
for the first time on an appeal by Mr Toth on his request to be
released from detention (see paragraph 33 above).
82. In the light of its own case-law (see, in particular, the
Ringeisen judgment of 16 July 1971 Series A no. 13, pp. 37-38,
para. 90, the Guzzardi judgment of 6 November 1980, Series A
no. 39, pp. 22-23, paras. 62-63, and the Foti and Others judgment
of 10 December 1982, Series A no. 56, p. 15, para. 44) and of all
the evidence, the Court agrees with this conclusion. In
particular, it considers it hardly realistic to expect a detainee
without legal training - like the applicant - to understand fully
the difference between the two types of procedure in question; it
would have been excessively formalistic of the Commission to have
confined itself to the letter of the applicant's argument without
seeking to establish its true purport. The objection is therefore
unfounded.
2. The merits of the complaint
83. The Linz Court of Appeal ruled on Mr Toth's appeals without
having summoned or heard him or his lawyer, whereas an official of
the principal public prosecutor's office had attended the hearing
and been able to reply to the court's questions.
According to the applicant, that destroyed the equality of arms
between the prosecution and the defence.
The Government took the contrary view. In their opinion, the fact
that the applicant had appeared before the Ratskammer of the
Salzburg Regional Court rendered devoid of purpose his presence on
appeal. Furthermore, the representative of the prosecuting
authority had not made any statements or requests.
84. The Court observes that Article 5 para. 4 (art. 5-4) does not
compel the Contracting States to set up a second level of
jurisdiction for the examination of applications for release from
detention. Nevertheless, a State which institutes such a system
must in principle accord to the detainees the same guarantees on
appeal as at first instance (see, inter alia, mutatis mutandis, the
Delcourt judgment of 17 January 1970, Series A no. 11, p. 14,
para. 25 in fine, and the Ekbatani judgment of 26 May 1988,
Series A no. 134, p. 12, para. 24).
In fact Mr Toth did not have the opportunity to contest properly
the reasons invoked to justify the continuation of his detention.
Any questions by the Court of Appeal would have enabled the
representative of the prosecuting authority to put forward his
views; they could have prompted, on the part of the accused,
reactions warranting consideration by the members of the court
before they reached their decision. As the proceedings did not
ensure equal treatment, they were not truly adversarial (see,
mutatis mutandis, the Sanchez-Reisse judgment of 21 October 1986,
Series A no. 107, p. 19, para. 51).
There has therefore been a violation of Article 5 para. 4
(art. 5-4) on this point.
B. Proceedings concerning the extension of the pre-trial
detention
85. The applicant made a similar complaint concerning the
proceedings instituted in the Linz Court of Appeal by the
investigating judge for the extension of the pre-trial detention.
86. In the Commission's view, shared by the Government, the
contested proceedings did not come within the scope of
Article 5 para. 4 (art. 5-4). Their purpose was to fix a maximum
period of detention and they were separate from, and in addition
to, the "proceedings" which Mr Toth was entitled to take under that
provision and of which he availed himself repeatedly in order to
request his release.
87. The Court reaches the same conclusion. The appellate court
rules on a request from the investigating judge or the prosecuting
authority (see paragraph 59 above) and confines itself to setting
out a framework within which the former is free to take decisions.
It does not therefore itself decide - as it has to in the case of
an appeal or for the purposes of the automatic periodic review - on
the appropriateness or the necessity of keeping the accused in
prison or releasing him, because it does not substitute its own
assessment for that of the authority which has taken the decision.
Nor does it undertake a review of the "lawfulness of the
detention", in other words a review wide enough to bear on each of
those conditions which are essential for detention to be lawful
(see, mutatis mutandis, the E. v. Norway judgment of
29 August 1990, Series A no. 181-A, p. 21, para. 50).
In short, Article 5 para. 4 (art. 5-4) did not apply to the
proceedings in question.
III. APPLICATION OF ARTICLE 50 (art. 50)
88. According to Article 50 (art. 50):
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
89. Mr Toth claimed in the first place 750,000 Austrian schillings
for pecuniary damage and 1,000,000 schillings for non-pecuniary
damage. The first amount was said to correspond to his loss of
earnings during the pre-trial detention and the reduction in his
salary after his release. The second was intended to cover the
"mental suffering" endured in prison (at a rate of 1,000 schillings
per day) and subsequently on his re-integration into society.
90. The Government saw no causal connection between the alleged
violation and the pecuniary damage deriving for the applicant from
his deprivation of liberty, which he would in any event have had to
undergo once convicted. In addition, they considered that a
finding of a violation would provide sufficient satisfaction for
the non-pecuniary damage.
The Delegate of the Commission did not submit any observations.
91. The Court dismisses the claim for pecuniary damage because the
entire period of pre-trial detention was deducted from the
sentence. As regards the non-pecuniary damage, it finds that the
present judgment constitutes sufficient satisfaction.
B. Costs and expenses
92. The applicant received legal aid before the Convention organs
and claimed nothing in respect of the proceedings conducted before
them.
On the other hand, he sought 178,083.60 schillings for the costs
and expenses incurred in the proceedings in the Austrian courts
comprising the following lawyers' fees: Mr Eberl and Mr Müller:
440; Mr Oberrauch and Mr Stadlmeier: 11,132; Mr Paradeiser:
31,438.20; Mr Lechenauer: 50,000; Mrs Hermann: 85,073.40.
93. The Government contested most of these claims. Neither
Mr Eberl and Mr Müller nor Mr Oberrauch and Mr Stadlmeier had
represented Mr Toth, although the latter's sister had contacted
them. Mr Paradeiser was entitled only to 7,853.40 schillings, for
the application for release of 15 February 1985 and the hearing of
27 February in the Ratskammer of the Salzburg Regional Court (see
paragraphs 17 and 19 above). As regards Mr Lechenauer, no details
had been provided. Finally, Mrs Hermann was not to be taken into
account because she began to represent the applicant only after his
conviction.
The Delegate of the Commission did not express an opinion.
94. The Court agrees with the view expressed by the Government and
accordigly awards to Mr Toth 7,853.40 schillings for the expenses
and fees of Mr Paradeiser.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of
Article 5 para. 3 (art. 5-3);
2. Dismisses 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;
3. Holds by eight votes to one that there has been a violation of
Article 5 para. 4 (art. 5-4) inasmuch as those proceedings were not
adversarial;
4. Holds by eight votes to one that Article 5 para. 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;
5. Holds unanimously that the respondent State is to pay to the
applicant, within three months, 7,853.40 schillings (seven thousand
eight hundred and fifty three Austrian schillings and forty
groschen) in respect of costs and expenses;
6. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 12 December 1991.
Signed: For the President
Alphonse SPIELMANN
Judge
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 53 para. 2 of the Rules of Court, the separate opinions of
Mr Matscher and Sir Vincent Evans are annexed to this judgment.
Initialled: A. S.
Initialled: M.-A. E.
PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE MATSCHER
(Translation)
1. I voted with the majority of the Chamber as regards the
excessive duration of the applicant's pre-trial detention, although
it was in my view a borderline case. I too consider that on the
whole, for a case involving a moderately serious criminal offence,
an overall period of detention which exceeds two years does not
satisfy the requirements of "expedition" laid down in
Article 5 para. 3 (art. 5-3).
However, the Chamber did not take sufficient account of the fact
that where economic crime is concerned the investigation is
especially intricate and complex and that, in the present case, the
accused in no way helped to shed light on the facts constituting
the allegations against him, as is clear from his attitude during
the two hearings before the Salzburg Regional Court; it may be
supposed that he behaved similarly during the investigation. In
this way he rendered the investigating judge's task more difficult.
Clearly he was free to choose his line of defence, but, to a
certain extent, he must equally suffer the unfavourable
consequences resulting therefrom. At the same time, the judge must
carry out the investigation with the diligence required under
Article 5 para. 3 (art. 5-3), notwithstanding the accused's
conduct.
The accused is also entitled to have recourse to all the legal
remedies available under the applicable procedural law with a view
to obtaining his release, but clearly this this too may lead to a
prolongation of the detention, for reasons "of a technical nature"
(non-availability of the file for the investigating judge), and the
accused must bear this in mind; this is particularly true where he
files numerous appeals, some of which are patently destined to
fail. Nevertheless, here too, the competent court must deal with
such a situation by the means at its disposal and must not forget
that the right to liberty of person lies at the heart of the
Convention, as the Chamber has rightly confirmed (paragraph 77 in
fine).
In this context the suggestion that the European Court would seem
to formulate for the benefit of national courts (also at the third
sub-paragraph of paragraph 77), namely that they should make copies
of the files - which sometimes comprise more than
1,000 pages -, so as always to leave a copy for the investigating
judge, is in my view hardly realistic; such a suggestion goes well
beyond what can reasonably be expected of the courts of a State
signatory to the Convention; moreover, it disregards the problems
arising from the handling of a large file.
2. The majority of the Chamber found that there had been a
violation of Article 5 para. 4 (art. 5-4) on the ground that the
decision of the Court of Appeal on the accused's applications for
release, following their dismissal both by the investigating judge
and the Ratskammer, had been taken by that court after having heard
the submissions of the principal public prosecutor's office, but
without hearing the accused.
The Court has often in the past had to consider the problem of the
procedural guarantees secured by Article 5 para. 4 (art. 5-4). Its
case-law on this matter may be summarised as follows:
Article 5 para. 4 (art. 5-4) requires that it be possible to apply
to a judge, who can decide on the application for release following
a judicial type procedure, with the essential procedural guarantees
inherent in that notion (see the judgments of Neumeister of
27 June 1968, Series A no. 8, p. 43, para. 24; Sanchez-Reisse of 21
October 1986, Series A no. 107, p. 19, para. 51; and Lamy of
30 March 1989, Series A no. 151, pp. 16-17, para. 29); however,
that is clearly below the level of protection afforded - and
required - by Article 6 para. 1 (art. 6-1).
It seems to me that Austrian law does indeed provide the guarantees
which - in the light of the relevant case-law of the Convention
organs - Article 5 para. 4 (art. 5-4) requires (Articles 195 and
196 of the Code of Criminal Procedure). Apart from the automatic
periodical reviews of the lawfulness of the continuation of
detention on remand (Article 194 para. 3 of the Code of Criminal
Procedure), the detainee may, at any time, request his release,
which may be granted by the investigating judge with the consent of
the prosecuting authority. Where the investigating judge rejects
such a request or the prosecuting authority opposes it, an
adversarial hearing is held before the Ratskammer to which the
detainee (and his lawyer) and the public prosecutor are summoned
and where the detainee and/or his lawyer have the possibility to
make any submissions in support of the application for release, in
other words to contest the investigating judge's decision to reject
the application and/or the position taken by the public prosecutor.
Where the decision of the Ratskammer goes against him, the detainee
has in addition the right to submit a written appeal to the Court
of Appeal. That court decides "after hearing the submissions of
the principal public prosecutor's office", in other words after
having given him the opportunity to make known - in writing or
orally - his point of view. Furthermore, where the appeal (against
a decision by the Ratskammer to release a detainee) has been lodged
by the prosecuting authority, the detainee too has the possibility
of putting forward his submissions provided that the prosecution
submissions have been sufficiently brought to his notice - as the
Court correctly noted in the Brandstetter judgment of
28 August 1991, Series A no. 211, pp. 27-28, para. 67 (see
nevertheless my dissenting opinion, which was joined by
Judges Vilhjálmsson and Bindschedler-Robert). Thus both parties
have each had the opportunity to put forward their arguments so
that the equality of arms is here fully respected.
Of course, over recent years, the Court's case-law on the matter of
procedural guarantees has developed and, in the present case, the
Chamber seems to have let itself be influenced by the idea that, in
criminal proceedings, it is always the accused who must have the
last word. This is a requirement of Article 6 para. 1 (art. 6-1)
to which I fully subscribe. However, to transpose it to
Article 5 para. 4 (art. 5-4) is in substance to give that provision
an equal scope to that of Article 6 para. 1 (art. 6-1) (without the
requirement concerning the public nature of hearings), which, in my
view is not a reasonable interpretation of Article 5 para. 4
(art. 5-4). In fact the Convention distinguishes clearly between
Article 5 para. 4 and Article 6 para. 1 (art. 5-4, art. 6-1) as
regards the procedural guarantees inherent in one or the other
(see in this respect the Winterwerp judgment of 24 October 1979,
Series A. no. 33, p. 24, para. 60).
The undesirable consequence of such case-law could be that, in
proceedings for hearing applications for release, States will
abolish the second (or third) level of jurisdiction which certain
systems (in this instance, the Austrian) make available, where the
procedures at the higher levels of jurisdiction do not fully
satisfy the requirements of Article 6 para. 1 (art. 6-1). Such a
legislative reversal would be in conformity with the letter of
Article 5 para. 4 (art. 5-4), but would not be in the interests of
the citizen.
Furthermore, the organisation of an appeal procedure in conformity
with Article 6 para. 1 (art. 6-1), in cases of this nature, would
constitute an excessive burden for the investigation and would run
counter to the principle of "expedition" laid down in
Article 5 para. 3 (art. 5-3).
PARTLY DISSENTING OPINION OF JUDGE Sir Vincent EVANS
1. I regret that I cannot agree with the conclusion of the
majority of the Court that Article 5 para. 4 (art. 5-4) of the
Convention did not apply to the proceedings concerning the
extension of the pre-trial detention (see paragraphs 85-87 of the
Court's judgment) and in my opinion those proceedings also gave
rise to a violation of that paragraph of Article 5 (art. 5-4).
2. The purpose of the proceedings in question, as the Court
observes, was to obtain a ruling of the Court of Appeal on a
request from the investigating judge under Article 193 of the
Austrian Code of Criminal Procedure for a prolongation of the
permissible length of detention on remand and thereby to set the
framework within which the investigating judge was then free,
within the law, to take decisions as to the continued detention of
the applicant. The effect of the proceedings was thus to make a
decision as to an essential pre-condition, under Austrian law, of
his continued detention. This being so, Article 5 para. 4
(art. 5-4) required that the applicant should be entitled to take
proceedings to contest the "lawfulness" of his continued detention
in this respect. But at no stage was this requirement satisfied.
The applicant was not entitled to intervene in the proceedings
before the Court of Appeal and to present his case for opposing the
investigating judge's request and he had no right of appeal against
the Court of Appeal's ruling.
3. It is true that the applicant was able to, and did, take
separate proceedings under Article 194 para. 2 of the Code of
Criminal Procedure to apply for his release but, as I understand
the system, such application had to be made within the framework
already established by the Court of Appeal's prolongation decision
under Article 193 and that decision as such was not open to
challenge in the proceedings concerning the application for
release. What is more, it is apparent that the Court of Appeal in
reaching its decision on prolongation took into account not only
the complexity and scope of the case and the severity of the
sentence risked but also other considerations including the danger
of the accused absconding and committing new offences (see
paragraphs 22, 26, 30 and 38 of the Court's judgment). The
decision so arrived at could hardly fail to weigh against the
applicant in the consideration of the merits of any application for
release thereupon to the Ratskammer and in any ensuing appeal to
the Court of Appeal. These considerations reinforce the view that
Article 5 para. 4 (art. 5-4) was applicable in respect of the
prolongation proceedings.
4. My conclusion therefore is that Article 5 para. 4 (art. 5-4)
was applicable and was violated not only in regard to the
proceedings concerning the applications for release but also in
regard to the proceedings concerning the extension of the pre-trial
detention.