CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mai 1973

.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 Austria citizen, born in 1930 and at present detained in the Vienna Prison Hospital. In the proceedings before the Commission he is represented by Mr. B., a lawyer practising in Vienna.   The application concerns three separate complaints:   (a) the refusal of the Austrian authorities to grant compensation for the applicant's detention on remand in Austria from .. November 1965 to .. December 1969; (b) his conviction by the Vienna Regional Court of .. April 1972; and (c) his detention on remand in Austria from .. April 1972 until .. December 1972.   (a)   The applicant's request for compensation for unjustified detention on remand   It appears that the applicant was arrested on .. November 1965 on the suspicion of having committed fraud on several accounts. He was released on .. December 1965, but was rearrested on .. February 1966, and it appears that he was then held in detention on remand until .. January 1968. On .. December 1969 the Vienna Regional Court (Landesgericht für Strafsachen) acquitted the applicant of the charges laid against him after the Public Prosecutor had already withdrawn parts of them. As to the remaining points the applicant was acquitted under Section 259 sub-Section 3 of the Austrian Code of Criminal Procedure (Strafprozessordning), which provides for an acquittal if the charges against the accused cannot be proven beyond doubt.   The applicant subsequently requested compensation for unjustified detention on remand under the terms of the respective Act of 1918.   On .. December 1969 the above Regional Court refused this request. The Court held that at the time of the applicant's arrest sufficient suspicion existed that he had committed the frauds of which he was later acquitted, and that by his own behaviour the applicant had not assisted the Investigating Judge and the Court in finding out the truth. In this respect reference was made to the applicant's refusal to reveal his personal assets to the Investigating Judge and the Trial Court during his trial in August 1967 (it appears that the applicant was tried twice for these charges, no details are, however, submitted in this respect) and he also refused to produce his several savings deposit books because he feared their seizure. His final acquittal was, in fact, based on the applicant's rather important property in Italy and Switzerland. The Court also held that the applicant had, in proceedings opened against him in 1963 by the Wiener Neustadt Regional Court, broken his obligations to report regularly to the Court, when he had been released on this condition. Consequently, the danger of absconding was imminent also in the later proceedings. The Court also pointed to the applicant's statement during the trial that he preferred to stay in detention on remand than to ask for his release on bail, although he had sufficient means to offer such bail.   On the applicant's appeal, the Vienna Court of Appeal (Oberlandesgericht) on .. July 1970 confirmed the lower court's decision. The Appeals Court made it clear that the 1918 Act had to be applied to the applicant, since the new Compensations' Act had only entered into force on 1 October 1969, which was after the end of the applicant's detention on remand.   (b)   The applicant's conviction and sentence on .. April 1972   On .. May 1971 the applicant was again arrested under the suspicion of having committed fraud on two accounts and he was put in ordinary detention on remand (for more details see below, item (c)). On .. October 1971 the indictment was filed with the Vienna Regional Court and he was charged with having obtained surreptitiously possession of two electric machines from their producer, by pretending that all the previously agreed conditions as to the payment of these machines had been fulfilled by him, and by submitting forged documents to this end. The applicant's appeal against the indictment was rejected, and the trial was held before the Vienna Regional Court. On .. April 1972 he was convicted of fraud, and was given a four years' sentence. The Court held that the applicant's victim suffered a financial loss of 550,000 Austrian schillings (approximately 125,000 French francs), but the Court also found that the applicant had restituted one of these machines to the producer so that the damage done was in fact much lower. The Court found preponderant mitigating circumstances in favour of the applicant but mentioned that the applicant was a type of "criminal salesman" who kept Austrian and foreign courts busy by his partly criminal activities.   The applicant lodged an appeal against conviction and sentence with the Supreme Court (Berufung und Nichtigkeitsbeschwerde zum Obersten Gerichtshof). He alleged that the Trial Court had incorrectly applied the law, that the evidence had been wrongly evaluated, that he had been convicted although the facts showed that he did not commit a punishable crime, and that the Trial Court failed to hear several witnesses for him. In this respect he mentioned that one witness had been summoned only to appear on the fourth day of his trial and that this witness was consequently intimidated. A graphological expert had not been heard as to the question when the applicant put his signature on a forged document. The Court had also refused to hear witnesses who could have confirmed that the applicant had suffered a financial loss of one million Austrian schillings as a consequence of a breach of contract of the producer of the above electric machines, and that he had, consequently, a valid claim against him. The Court had moreover refused to hear witnesses who could have given evidence that the above producer intended to discontinue the commercial relationship which he had with the applicant, and to bring to an end the applicant's employment as being his general sales agent for Austria.   The Supreme Court gave judgment on .. December 1972 and reduced the applicant's penalty to 3 years' imprisonment, but dismissed his plea of nullity.   The Court analyzed in detail the applicant's complaints in regard to his trial, but decided that they were unfounded. As regards the several witnesses requested by the applicant, the Supreme Court held that this did not constitute a nullity of the trial for the following reasons: as regards the summoning of a witness for the fourth day of the trial, and not, as requested by the applicant, for the first day, the Court found that this in no way interfered with the applicant's rights, since it made no difference on which day this witness was heard, as long as he was heard at all. With respect to the other witnesses the Court stated that the applicant could not complain about the Lower Court's refusal to hear them since either the subject on which they could give evidence was totally irrelevant to the issue of the trial, or they could not give evidence on the subject mentioned by the applicant.   (c)   The applicant's detention on remand from .. April 1972 to .. December 1972   As indicated above, the applicant had been arrested on .. May 1971 under the suspicion of having committed fraud. On .. August 1971 he was released on bail of 200,000 Austria shillings (approximately 45,000 French francs). On .. April 1972, after his conviction by the Trial Court, the same Court decided that the applicant should be detained on remand pending his appeal to the Supreme Court. The Trial Court gave the following reasons for this decision. At first, it stated that the danger of the applicant's absconding existed, and reference was made to the 1963 proceedings in Wiener Neustadt (see item (a) above) in the course of which the applicant had been released on the condition that he reported regularly to the police and the Trial Court. It is said that the applicant did not fulfil this condition and disappeared under a false name in order to escape being arrested. The Court went on to say that the applicant had no real fixed abode in Austria, since he changed his domiciles continuously and did not observe the general legal obligation to report any change of domicile to the administration (Meldepflicht) and that he had indicated that his permanent residence was Zurich, where his wife and his three children lived. It was also said that the overall part of the applicant's property was situated in Switzerland and in Italy and that his assets in Austria were insignificant. The Court also stated that the applicant, after his release on bail in August 1971, made, with the consent of the court, several journeys abroad and was once arrested in Italy under the suspicion of fraud. The Court also mentioned that the danger of flight had increased as a consequence of the applicant's conviction and the four years' sentence, and that bail of 200,000 Austrian schillings was no longer sufficient to prevent the applicant from absconding.   On .. May 1972 the Vienna Court of Appeal (Oberlandesgericht) confirmed, on the applicant's appeal, the Lower Court's decision for the same reasons as set out in the trial court's decision.   On .. May 1972 the applicant requested his release from the Vienna Regional Court. He stated that the danger of his flight did not exist, and that the 1963 incident was the consequence of a mistake of the Wiener Neustadt Court which had served the summons of the applicant to the wrong lawyer, so that the former did not know that he was summoned to appear in court. The applicant further indicated that he had always in the past observed the conditions of his being released, and that he had regularly reported to the police. He then stressed his very bad state of health and mentioned an expert opinion made by the Vienna Institute for Forensic Medicine during his 1969 trial. He also stated that he had been, for almost three years, in detention on remand, and that, consequently, he could expect that this would be considered when he asked for a pardon. The applicant offered an increased bail of 250,000 Austrian schillings, and to deposit his passport with the police. He finally stated that his relations with foreign countries were limited to Switzerland and Italy and that an escape to either of these two countries would be senseless, since well applied extradition agreements existed between these countries and Austria.   On .. June 1972 the Regional Court's Judges' Chamber (Ratskammer) rejected the applicant's request. The Court held that the Appeals Court had previously confirmed that the danger of the applicant's absconding existed, and that the situation meanwhile had not changed.   On .. June 1972 the applicant appealed to the Court of Appeal. He repeated the reasons of his request of .. May 1972. No details are, however, submitted as to the decision of this court.   On .. July 1972 the applicant again requested his release on bail, but on .. October 1972 the above Judges' Chamber again refused to grant this request. The Court referred to the danger of flight and then dealt with the applicant's allegation that the continuing detention on remand would cause serious and lasting injuries to his health. The Court said that this allegation was unfounded in view of an opinion of the above-mentioned Institute of Forensic Medicine, according to which the applicant was fit for detention provided that his state of health was supervised in the Vienna Prison Hospital (it appears that the applicant was detained in this prison hospital). The Court then mentioned that the applicant could not invoke Section 5 of the new Execution of Sentences Act (Strafvollzugsgesetz), since this was only to be applied mutatis mutandis on prisoners on remand. For the decision whether a person should be remanded in custody, and whether this detention should continue Section 180 of the Code of Criminal Procedure had to be applied exclusively.   On .. November 1972 the applicant appealed against this decision to the Court of Appeal an attacked the finding of the Judges' Chamber that Section 5 of the above Execution of Sentences Act was not applicable to him and insisted that this Section should be applied. According to this a prisoner has to be released if his detention was impossible because of his physical state, or because of illness. He mentioned that he had been examined by an expert on .. October 1972, who confirmed that he suffered from a disease of his heart, and that his general condition was reduced. The applicant then indicated that he had suffered from three cardiac infarctus in the past and that the last of these infarctus was the reason for his release from detention on remand in 1968. The applicant stressed that all this was part of his medical file and confirmed by several experts. As regards the medical examination of .. October 1972 he observed that the examining doctor did not even make an electrocardiograph and that, consequently, he could not really give a diagnosis on the applicant's condition. He concluded that it was beyond doubt that his health was in a very bad condition, that there was an imminent danger of his suffering a fourth infarctus and that he could not get adequate treatment in the prison hospital.   On .. November 1972 the applicant suffered from a stroke (cerebral apoplexy).   On .. November 1972 the Court of Appeal dismissed the applicant's appeal. It referred to the unchanged situation as to the applicant's danger of absconding. It also dealt with the applicant's fitness for detention and stated that it had before it a report from the prison hospital that the applicant on .. November suffered from a cerebral apoplexy as a consequence of which he was partly paralysed, and was transferred to a neurological department of the university hospital. The Court then telephoned the head of this department, Professor R., who said that the stroke was slight and that the paralyses was simulated by the applicant. The same doctor also alleged that the applicant had certainly not suffered from any of the alleged three heart infarctus, although it could not be excluded that he had been near to them. The Court of Appeal, on the basis of this information, concluded that the applicant's attitude was an attempted disguise of a slight stroke (Tarnungsversuch eines leichten Schlaganfalles) and that, consequently, it was superfluous to order an electrocardiograph of his heart. The Court found that the applicant was fit for detention; it did, however, not deal with the question whether Section 5 of the above Execution of Sentences Act was applicable to a person remanded in custody.   On .. December 1972 the applicant again requested his release, but on .. December 1972 the Judges' Chamber of the Regional Court dismissed this request. The Court mentioned the Court of Appeal's decision of .. November 1972 in respect of the danger of flight, and to the applicant's allegations that he was paralysed and could not move his right arm and leg, so that he had to remain seated in an invalid chair, and that he had suffered from three heart infarctus were altogether incredible.   It appears that the applicant is now serving his sentence following his final conviction by the Supreme Court on .. December 1972.   Complaints   The applicant now complains that he was refused compensation for his unjustified detention on remand from .. November 1965 until .. December 1965, and from .. February 1966 until .. January 1968.   He also complains about his conviction and sentence of .. April 1972 and states that the above criminal proceedings, although they ended with his acquittal, were taken into account in the second proceedings, and that several of his witnesses were not heard by the Trial Court.   Finally, the applicant complains about his detention on remand after his conviction which was, in his submission, unjustified as no danger of flight existed and as he was unfit for detention.   He alleges violations of Articles 5 and 6 of the Convention.   THE LAW   1. The applicant has complained that the Austrian courts refused to pay him compensation for his detention on remand from .. November 1965 until .. December 1965, and from .. February 1966 until .. January 1968 although he had later been acquitted of the charges concerned. He alleges a violation of Article 5 (Art. 5) in this respect.   It is true that Article 5 (5) (Art. 5-5) of the Convention provides that "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation". The Commission, however, in this respect refers to its established case-law (see paragraph 76 of the Report of the Commission with regard to application No. 2122/64, Wemhoff v. the Federal Republic of Germany, and the decision on the admissibility of application No. 4149/69, Collection of Decisions, Vol. 36, p. 66) according to which it "cannot consider the applicant's claim under Article 5, paragraph (5) (Art. 5-5), before:   1.    the competent organ, namely the Court or the Committee of Ministers, has given a decision on the question whether Article 5, paragraph (3) (Art. 5-3), has been violated in the present case; and   2. The applicant has had the opportunity, with respect to his claim for compensation to exhaust, in accordance with Article 26 (Art. 26) of the Convention, the domestic remedies available to him ...".   In the circumstances of the present case, however, neither of the above two organs has given a decision on the question whether the periods of the applicant's detention on remand violated the provisions of Article 5 (Art. 5) of the Convention. The Commission itself is prevented in the present proceedings from examining this question by virtue of Article 26 (Art. 26) of the Convention which provides that it may "only deal with the matter ... within a period of six months from the date on which the final decision was taken". The applicant has not indicated the date of the final decision of the Austrian courts in regard to the lawfulness of his detention on remand. He has, however, submitted that, on .. December 1969, he had been finally acquitted by the Vienna Regional Court of the charges which caused his detention, and it also appears that no decision with regard to the lawfulness of his detention on remand was given thereafter. The application to the Commission was, however, submitted on 4 May 1972, which must have been more than six months after the date of the final decision on his detention. For this reason the Commission is barred from examining the question whether the applicant's above detention on remand violated any of the provisions of the Convention.   For these reasons and, having regard to the terms of Article 5 (5) of the Convention the applicant's complaint under this Article cannot be examined by the Commissions as it is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 27 (2) (Art. 27-2), of the Convention.   2. The Commission has subsequently examined under Article 6 (1) (Art. 6-1) of the Convention the applicant's complaint that the trial court in the 1972 criminal proceedings against him took into account, and relied upon, criminal proceedings which had ended with his acquittal in 1969.   However, under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law. This rule requires the applicant to raise, in the appeals' proceedings before the national court, the substance of any complaint subsequently made before the Commission. In this respect the Commission refers to its constant jurisprudence (see e.g. decisions on the admissibility of applications No. 263/57, Yearbook, Vol.1, pp. 146, 147 and No. 1103/61, Yearbook, Vol. 5, pp. 168, 186).   In the present case the applicant has not shown that he raised, either in form or in substance, in the proceedings before the Supreme Court the complaint which he now makes before the Commission.   It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies as regards his above complaint which must be rejected under Article 27 (3) (Art. 27-3), of the Convention.   3. The applicant has further complained about his conviction and sentence on .. April 1972. He pointed out, in particular, that several of his witnesses were not heard by the Trial Court. he alleged that one witness had been summoned only to appear on the fourth day of his trial and that this witness was consequently intimidated. He also submitted that a graphological expert had not been heard as to the question whether the applicant had put his signature to a forged document; further that the court had refused to hear witnesses who could have confirmed that the applicant had suffered a financial loss of one million Austrian schillings as a consequence of a breach of contract terminated by the producer of the above electric machines against whom he had, consequently, a valid claim. He complained finally that the court had refused to hear witnesses who could have given evidence that his commercial partner intended to discontinue his relationship with the applicant and thus to end the applicant's employment as his general sales agent for Austria. The applicant alleged that Article 6 (Art. 6) of the Convention was thereby violated.   The Commission has first examined this complaint under Article 6 (1) (Art. 6-1) of the Convention which entitles everyone charged with a criminal offence to a fair trial. An examination of the facts, as submitted by the applicant, does not, however, disclose any appearance of a violation of this right, and the applicant's complaint, if regarded under Article 6 (1) (Art. 6-1), is therefore manifestly ill-founded within the meaning of Article 27 (2) (Art. 27-2), of the Convention. The Commission next examined whether Article 6 (3) (d) (Art. 6-3-d) of the Convention was violated in these proceedings. This provision reads as follows:   "(3)   Everyone charged with a criminal offence has the following minimum rights: (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."   According to the Commission's constant case-law, however, this provision does not give the accused person a right to call witnesses without any restriction. In particular, the Commission has repeatedly held that the competent courts of the Contracting Parties are free, subject to respect for the terms of the Convention, to decide whether the hearing of a witness for the defence is likely to be of assistance in discovering the truth and, if not, to decide against calling that witness. In this respect the Commission refers to its Report in the Austria v Italy Case (application No. 788/60, Yearbook, Vol. 6, pp. 740, 772 and to its decision on the admissibility of application No. 1134/61, X v. Belgium, Yearbook, Vol. 4, pp. 378, 382).   In the present case, the Commission noted that the Supreme Court in its judgment of .. December 1972 analyzed in detail the applicant's complaints in regard to his trial and decided that they were unfounded. As regards the several witnesses whom the applicant wished to be called, the Supreme Court held that the summoning of a particular witness for the fourth day of the trial and not, as requested by the applicant, for the first day was no reason to nullify the trial. According to the Court this had in no way interfered with the applicant's rights since it made no difference on which day this witness was heard as long as he was heard. With respect to the other witnesses the Court stated that the applicant could not validly complain about the lower court's refusal to hear them since either the subject on which they could give evidence was totally irrelevant to the issue of the trial, or they could not give evidence on the subject mentioned by the applicant.   The Commission considers that the Supreme Court's decision to uphold the Trial Court's refusal for the evidence concerned to be heard was, in view of the reasons given by the Supreme Court and having regard to the Commission's jurisprudence in this respect, not inconsistent with the provisions of Article 6 (3) (d) (Art. 6-3-d) of the Convention. It follows that this complaint of the applicant is, therefore, manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   4. The applicant has also complained generally about his conviction and sentence by the above Trial Court. Insofar as this does not relate to the complaints dealt with above under paragraphs 2 and 3, the Commission refers to its constant case-law that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, the Commission is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission fins that there is no appearance of any such violation in connection with the applicant's general complaints about his conviction and sentence. It follows that this part of the application is equally manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   5. The applicant has lastly complained about his detention on remand after his conviction and pending his appeal to the Supreme Court. He submitted that this detention was unjustified as no danger of flight existed and as he was medically unfit for detention. The Commission considers that this last complaint may give rise to a question under Article 5 (3) (Art. 5-3) of the Convention, and examination of the file at the present stage does not give such information regarding the applicant's physical state at the time of his detention, as is required for determining the question of admissibility. The Commission, therefore, decides, in accordance with Rule 45, 3 b) of the Commission's Rules of Procedure, to give notice of this complaint to the Austria Government and to invite them to submit their written observations on the question of admissibility. In the meanwhile, the Commission decides to adjourn its examination of this part of the application.   For these reasons, the Commission   1. Decides to adjourn its examination of the admissibility of the applicant's complaint about his detention on remand from .. April 1972 to .. December 1972;   2. Declares inadmissible the other complaints made by the applicant.