CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 1970

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   The facts of the case as submitted by the applicant may be summarised as follows.   The applicant is an Austrian citizen, born in 1917 and at present detained in the special prison hospital of Vienna (Inquisitenhospital).   By judgement of the Regional Court (Landesgericht) of Vienna of 10 February 1970, the applicant was convicted of murder and was given a five years' sentence. The applicant was alleged to have a suicide pact with his mistress, in execution of which, on 23 January 1969, he shot her and then himself with a pistol. He also led the exhaust fumes into the interior of his car. The applicant, however, survived this but his mistress died. The post-mortem examination of her corpse revealed that she had died of carbon monoxide poisoning. The applicant himself was badly injured; he is paralysed and has been detained since then in the above prison hospital.   The above judgment was publicly pronounced on 20 February 1970, but it appears, however, that the written judgment has only been served on the applicant on 25 May 1970. The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof) but as he was not in possession of the written judgment, no further steps could be taken by him and the Supreme Court was not in the position to decide on the appeal.   On 20 March 1969, the applicant's counsel requested the Regional Court to release the applicant from custody. He maintained that there were no reason whatsoever to justify the applicant's detention; the danger of the applicant absconding obviously did not exist as he was totally paralysed; no risk of collusion could be supposed since no witness existed,   and finally it was emphasised that a danger of the applicant committing further offenses was excluded, since he had acted in an emergency situation and because he was not capable of doing anything. The applicant finally offered bail of 20.000 Austrian Schillings, which was his total savings. He also pointed out that, in the event of his release, he intended to go to the hospital at Graz where his family lived.   By decision of 21 March 1969 the Regional Court of Vienna dismissed the applicant's request on the ground that release pending trial was excluded by law in similar cases in view of the provisions of Article 180 (2) of the Austrian Code of Penal Procedure (Strafprozessordnung). This paragraph reads as follows:   "detention on remand has to be ordered if a crime is involved where, according to law, a minimum penalty of ten years' imprisonment is fixed". Article 194 of the same Code, however, authorises the Court of Appeal to grant such release. The applicant failed to appeal to this Court.   On 27 October 1969 the applicant's lawyer wrote a letter to the President of the Regional Court of Vienna and suggested that the President should urge the Investigating Judge to accelerate the investigation in view of the physical condition of the applicant.   The applicant, in the meanwhile, had been convicted by the Court of First Instance and he again requested his release pending trial. He indicated that he had appealed against the Regional Court's judgment and that the Public Prosecutor had also appealed towards the sentence. The applicant maintained that it was inhuman to keep him in detention in view of his bodily condition.   By decision of 6 March 1970 the Regional Court dismissed the applicant's request in view of the terms of Article 180 (2) of the Code of Criminal Procedure whereby no release could be granted. Furthermore, reference was made to the established practice as regards Article 194 of the above Code which provides that the Court of Appeal can grant release pending trial even in cases similar to the applicant's.   According to this practice, such release cannot be granted, despite the wording of this Article. The applicant appealed against this decision to the Court of Appeal, but by decision of 24 June 1970, the Court confirmed the Regional Court's refusal. The Court of Appeal stated that an interpretation of Article 194 in the light of other provisions of Austrian criminal law leads to the result that no release can be granted in case of crimes which according to the law are to be punished with life imprisonment. The Court referred in this respect to an order made by the Ministry of Justice of 23 December 1919, which gives such an interpretation of Article 194. The Court further pointed out that the Supreme Court by decision of 6 May 1964 has again confirmed this application of the above Article and that since then this was the leading case for all the Courts of Appeal. The Supreme Court in its above decision has discussed the bearing of the European Court of Human Rights on this provision of the Code of Penal Procedure, but has found it not to be at variance with Article 5 (3) of the Convention. The Supreme Court held in this respect:   "Article 5 (3) of the Convention does not provide that a person remanded in custody has, under all circumstances, the right to release pending trial, but confers such a right only as an alternative to conviction within a reasonable time".   The Court of Appeal, in the applicant's case, found that the length of the detention on remand was not unreasonably long in view of the nature of the crime and that thus the custody of the applicant for one and a half years was justified under the Convention.   The applicant now complains:   - that this detention in a prison hospital constitutes inhuman treatment within the meaning of Article 3 of the Convention:   - that his detention was not justified since there existed no reasons which necessitated his detention. He alleges that his detention cannot "reasonably be considered necessary to prevent his committing an offence or fleeing after doing so"; the applicant alleges that, consequently, Article 5 (1) (c) has been violated;   - that Article 5 (3) has been violated because of the established practice of the Austrian judiciary not to grant release pending trial in similar cases, despite the provisions of Article 194 of the Austrian Code of Penal Procedure. He alleges in this respect that he has not been tried within a reasonable time since it took more that three months to obtain the written judgment from the trial court;   - that the Austrian courts did not decide within a reasonable time upon his request for release pending trial;   - that Article 6 (1) has been violated since the length of the proceedings in such a simple case was not justifiable.   THE LAW   Whereas the applicant first complains that his detention in   a prison hospital constitutes inhuman treatment within the meaning of Article 3 (Art. 3) of the Convention; whereas, however, the Commission is of the opinion that in the circumstances of the case the applicant's detention in the prison hospital does not constitute inhuman treatment, having regard to the normal sense of this expression and having regard to the Commission's interpretation of this expression in previous cases; Whereas, therefore, the Commission finds that an examination of this complaint does not disclose any appearance of a violation of Article 3 (Art. 3) thereof; whereas, it follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas the applicant further complains that his detention on remand was not justified since no reasons existed, which necessitated his being remanded in custody; whereas the applicant alleges in this respect that no danger of his absconding, or of his committing further offenses, could be established and that no risk of collusion could be presumed as he had confessed to the crime and no witnesses existed; Whereas the applicant alleges that his detention consequently violates Article 3 (1) (c) (Art. 3-1-c) of the Convention; whereas the terms of the said Article provides as follows:   "... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense or when it is reasonably considered necessary to prevent his committing an offence of fleeing after having do so"; whereas the Commission finds that, in view of the applicant having confessed to the crime of which he was charged, there was clearly such "reasonable suspicion" fully justifying his detention; whereas it follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas, the applicant further complains that he was refused release pending trial by the Austrian courts because of their established practice of not granting release pending trial where the accused person is charged with a crime for which the law fixes a minimum penalty of ten years' imprisonment; whereas he alleges that this refusal of release violated Article 5 (3) (Art. 5-3) of the Convention;   Whereas he also complains that the Austrian courts did not decide with a reasonable time upon his request for release pending trial;   Whereas finally, the criminal charge against him was not determined within a reasonable time, within the meaning of Article 6, paragraph (1) (Art. 6-1), of the Convention;   Whereas questions are here raised as to whether there has been an interference with the rights guaranteed by the Convention;   Whereas the Commission finds that an examination of the file at the present stage does not give the information required for determining the question of admissibility; whereas, therefore, the Commission decides, in accordance with Rule 45, 3 (b), of its Rules of Procedure, to give notice of these complaints to the Government of Austria and to invite it to submit its observations on the question of admissibility;   Whereas in the meanwhile, the Commission decides to adjourn its examination of these parts of the application;   Now therefore the Commission   1. Declares inadmissible, for the reasons stated above, the complaints relating to Articles 3 and 5 (1) (c) (Art. 3, 5-1-c) of the Convention;   2. Decides to adjourn its examination of the admissibility of the applicant's remaining complaints.