CEDH · CASELAW;REPORTS;ENG — 3 juillet 1990

.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 }  Application No. 11894/85   Stefan TOTH   against   AUSTRIA   REPORT OF THE COMMISSION   (adopted on 3 July 1990)                           TABLE OF CONTENTS                                                               Page     I.       INTRODUCTION         (paras. 1-17)   ....................................      1           A.       The application                 (paras. 2-4)   .............................      1           B.       The proceedings                 (paras. 5-12)   ............................      1           C.       The present Report                 (paras. 13-17)   ...........................      2   II.      ESTABLISHMENT OF THE FACTS         (paras. 18-65)   ...................................      4           A.       The particular circumstances of the case                 (paras. 18-60)   ...........................      4                   a.   Preliminary investigations                     (paras. 18-40)   .......................      4                   b.   Indictment and trial                     (paras. 41-60)   .......................      7           B.       Relevant domestic law                 (paras. 61-65)   ...........................      10   III.     OPINION OF THE COMMISSION         (paras. 66-135)   ..................................      12           A.       Points at issue                 (para. 66)   ...............................      12           B.       Article 5 para. 3 of the Convention                 (paras. 67-116)   ..........................      12                   a.   Compliance with Article 5 para. 3 of                     the Convention                     (paras. 68-115)   ......................      12                       (para. 116)   ..........................       18           C.       Article 5 para. 4 of the Convention                 (paras. 117-134)   .........................       18                   a.   Compliance with Article 5 para. 4 of the                     Convention                     (paras. 118-133)   .....................       18                       1.   Appeal proceedings                         (paras. 119-129)   .................       18                       2.   Proceedings brought by the                         investigating judge                         (paras. 130-133)   .................       20                   b.   Conclusion                     (para. 134)   ..........................       21           D.       Recapitulation                 (para. 135)   ..............................       21       CONCURRING SEPARATE OPINION OF Mr.   H.G. SCHERMERS AND MESDAMES G.H. THUNE AND J. LIDDY   .........................       22   APPENDIX I:      HISTORY OF THE PROCEEDINGS   ...............       23   APPENDIX II:     DECISION ON THE ADMISSIBILITY   ............       24     I.     INTRODUCTION   1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicant, born in 1953, is an Austrian citizen residing at Graz in Austria.   Before the Commission, he is represented by Ms.   K. Hermann, a lawyer practising in Graz.           The application is directed against the Republic of Austria whose Government were represented by their Agent, Ambassador Helmut Türk, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   3.       The application relates to the applicant's detention on remand in criminal proceedings against him on suspicion of having committed various instances of aggravated fraud.   The applicant was remanded in custody from 11 January 1985 until 18 February 1987.   During his detention the applicant filed numerous requests for release which were eventually dismissed by the Review Chamber at the Salzburg Regional Court and, upon appeal, by the Linz Court of Appeal.   The Linz Court of Appeal on a number of occasions also decided to prolong the applicant's detention on remand.   On 26 May 1988 the applicant was sentenced to four and a half years' imprisonment.   4.       The applicant complains under Article 5 para. 3 of the Convention that the length of his detention on remand, lasting 25 months, exceeded a reasonable time within the meaning of this provision.   Under Article 5 para. 4 he complains that neither he nor his lawyer were present in the proceedings concerning his detention before the Linz Court of Appeal.   B.       The proceedings   5.       The application was introduced on 12 October 1985 and registered on 10 December 1985.   6.       On 7 July 1987 the Rapporteur decided to request information from the respondent Government pursuant to Rule 40 para. 2 (a) of the Commission's Rules of Procedure.   The information was provided by the respondent Government on 21 September 1987, and comments thereon were submitted by the applicant on 12 October 1987.   7.       On 9 March 1988 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits pursuant to Rule 42 para. 2 (b) of its Rules of Procedure in respect of the applicant's arrest, the length of detention, and the proceedings in which the legality of his detention was decided.   The respondent Government's observations were submitted on 31 May 1988 and the reply thereto by the applicant on 18 July 1988.   8.       On 15 December 1988 the Commission decided in accordance with Rule 42 para. 3 (a) of the Rules of Procedure to invite the Government to submit written observations in respect of the appeal proceedings in which the legality of the applicant's detention was decided.   The respondent Government's further observations were submitted on 10 February 1989 and the reply thereto by the applicant on 13 March 1989.   9.       On 15 December 1988 the Commission also decided to invite the parties to a hearing on the admissibility and merits of the application insofar as it raised issues under Article 5 paras. 3 and 4 of the Convention.   10.      The hearing took place on 8 May 1989.   The applicant, who was present, was represented by Ms.   K. Hermann.           The respondent Government were represented by their Agent, Ambassador H. Türk, as well as by Mr.   W. Okresek of the Federal Chancellery at Vienna, Ms.   J. Gartner of the Federal Ministry of Justice at Vienna, and Ms.   U. Plassnik of the Permanent Representation of Austria to the Council of Europe at Strasbourg, as advisers.   11.      Following the hearing the Commission declared the application admissible with regard to the applicant's complaints under Article 5 para. 3 of the Convention concerning the length of his detention on remand, and under Article 5 para. 4 of the Convention concerning the proceedings before the Linz Court of Appeal.   The remainder of the application, including a complaint under Article 6 para. 1 of the Convention concerning the length of the proceedings, was declared inadmissible.   12.      After declaring the application admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 17 May 1989 and 18 January 1990.   In the light of the parties' reaction, the Commission now finds that there is no basis upon which a settlement can be effected.   C.       The present Report   13.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberation and votes, the following members being present:           MM.   S. TRECHSEL, Acting President              E. BUSUTTIL              G. JÖRUNDSSON              A. S. GÖZÜBÜYÜK              H. G. SCHERMERS              H. DANELIUS              G. BATLINER         Mrs.   G. H. THUNE         Sir   Basil HALL         Mr.   C.L. ROZAKIS         Mrs.   J. LIDDY   14.      The text of this Report was adopted on 3 July 1990 and is now transmitted to the Committee of Ministers of the Council of Europe in accordance with Article 31 para. 2 of the Convention.   15.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:           i)       to establish the facts, and           ii)      to state an opinion as to whether the facts found                 disclose a breach by the State concerned of its                 obligations under the Convention.   16.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   17.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.     ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case           a.   Preliminary investigations   18.      On 1 June 1984 the Salzburg Regional Court (Landesgericht) issued a warrant of arrest (Haftbefehl) against the applicant, who was then of unknown abode, on suspicion of having committed, inter alia, the offence of aggravated fraud (schwerer Betrug) according to Section 147 para. 3 of the Austrian Criminal Code (Strafgesetzbuch), together with a certain J.M.   In particular, the applicant had allegedly made out various uncovered cheques, drawn from bank accounts opened by J.M., and induced J.M. to cash them in other banks.   The warrant of arrest stated with reference to Section 175 of the Austrian Code of Criminal Procedure (Strafprozessordnung) that there was a danger of absconding in view of the fact that the applicant's place of residence was not known, and that there was also a danger of repetition, namely that he would commit new offences of the same kind, since he had previously been convicted on a number of occasions.   19.      On 24 August 1984, the Salzburg Regional Court issued an international search warrant (Steckbrief) against the applicant. Therein, the Court referred to eleven instances of attempted or completed fraud regarding a total amount of over one million AS and concerning financial institutions in various towns in the Federal Republic of Germany and in Austria.   The warrant of arrest mentioned as a third co-accused a certain Ch.B.   20.      In January 1985 the applicant was residing at Graz without being duly registered.   21.      On 11 January 1985 at 23h00 the applicant was arrested at Graz airport where he was awaiting the arrival of a friend.   The applicant was brought to the Feldkirchen constabulary.   On 12 January 1985 he was heard by the investigating judge at the Graz Regional Court.   According to the document "Interrogation of the accused" ("Vernehmung des Beschuldigten"), the applicant was informed that a warrant of arrest and a search warrant had been issued against him on suspicion of the offence of aggravated fraud.   He also noted that temporary custody (Verwahrungshaft) was being imposed on him according to Section 175 of the Code of Criminal Procedure on the grounds of a danger of collusion (recte: repetition) and of absconding.   22.      On 17 January 1985 the applicant was transferred to Vienna and on 22 January 1985 to Salzburg.   The co-accused J.M. was arrested on 17 December 1984.   23.      On 23 January 1985 a judge at the Salzburg Regional Court heard the applicant.   According to the document "Interrogation of the accused", which was signed by the applicant, the applicant was informed that preliminary investigations (vorläufige Untersuchung) were being instituted against him and he would not object thereto. The applicant was informed that his detention on remand had been ordered on the grounds of a danger of absconding and of repetition according to Section 180 paras. 1 and 2 of the Code of Criminal Procedure.   24.      In its decision of 23 January 1985 the Salzburg Regional Court ordered, with reference to the instances mentioned in the search warrant of 24 August 1984, the applicant's detention on remand, inter alia, on suspicion of attempted and completed fraud according to Section 147 para. 3 of the Criminal Code.   The Court stated that the applicant had previously attempted to avoid prosecution by changing his residence for which reason there was a danger that, if he remained in liberty, he would abscond or hide in view of the prospective punishment.   The Court also saw a danger of repetition as the applicant was not socially integrated and without employment.   For this reason, it was to be feared that he would commit further offences, with severe consequences, of the same kind as the ones in respect of which he had twice been convicted previously.   25.      This decision was handed to the applicant on 24 January 1985. He was heard by the investigating judge as to the reported facts (Anzeigetatbestände) on 25, 28, 29, 30 and 31 January and 1 February 1985.   On 7 February the Swiss authorities announced their intention to prosecute the applicant.   26.      On 15 February 1985 the applicant filed an application for his release from detention.   Therein he claimed that he could now demonstrate a permanent residence at his sister's, and that there were prospects for a particular job.   On 19 February 1985, further investigations were instituted with regard to offences allegedly committed by the applicant in Switzerland.   27.      On 27 February 1985 the Review Chamber (Ratskammer) at the Salzburg Regional Court refused the application.   According to the decision, the applicant and his lawyer were present at the hearing concerning the examination of the applicant's detention on remand (Haftprüfungsverhandlung).   The Chamber found that there was a grave suspicion that he had committed attempted or completed aggravated fraud together with two other persons.   Moreover, there was a danger of absconding in view of the fact that previously the applicant had attempted to avoid prosecution by repeatedly changing his residence and that, in view of the severity of his prospective sentence, he would flee or hide.   The Chamber also saw a danger of the applicant committing further offences in view of his previous two convictions which concerned offences of the same type and as he was not socially integrated and without regular employment.   Finally, the Chamber found that the purpose of detention could not be attained by other more lenient measures.   28.      On 1 March 1985 the case-file was again sent back to the investigating judge who was, however, on holiday until 15 April 1985. On 30 April 1985 the investigating judge heard the applicant with regard to the co-accused J.M.   From 26 April to 1 May 1985 the applicant served a prison sentence apparently relating to a customs contravention.   On 15 May and 24 June 1985 the investigating judge requested information from two German banks.   29.      On 19 June 1985, upon application of the investigating judge, the Linz Court of Appeal (Oberlandesgericht) decided in camera to allow an extension of the applicant's detention on remand for up to eight months as from 23 January 1985.   The Court stated that there was a grave suspicion that the applicant had committed the offence of aggravated fraud, involving damages of more than two million AS.   The Court thereby referred to various reports to the police (Anzeigen), the police inquiries, and the statements made by the co-accused. The Court also noted that the proceedings had become extraordinarily voluminous due to the multitude of facts and the contradictory statements of the applicant and other accused.   The Court found that, in the light of new results of the inquiries and the great volume and difficulty of the case, the Prosecution would first require an adequate period of time carefully to prepare the indictment and, possibly, the subsequent proceedings before the Jury Court.   The Court also assumed a danger of absconding and of committing further offences whereby it referred to the decision of 27 February 1985 as well as the applicant's previous convictions.   The Court considered that other, more lenient measures would not suffice.   30.      The applicant filed an appeal against this decision to the Supreme Court (Oberster Gerichtshof) in which he referred to a permanent address in Austria, to prospective employment and to the strong attachment to his life companion.   The appeal was rejected as being inadmissible by the Supreme Court on 22 August 1985.   The case-file was returned to the investigating judge on 11 September 1985.   31.      On 12 September 1985 the applicant again applied for his release.   32.      On 18 September 1985 the Linz Court of Appeal, upon application of the investigating judge, decided in camera that the applicant's detention on remand could be extended for up to 11 months. With regard to the danger of absconding and of committing further offences the Court found no changes in the relevant circumstances for which reason it referred to the grounds given in the decisions of the Review Chamber of 27 February and of the Court of Appeal of 19 June 1985.   The Court also considered that these reasons for detention on remand excluded other, more lenient measures.   33.      On 24 September 1985 the Regional Court decided that the preliminary investigations instituted against the applicant should be extended also to the offence of arson (Brandstiftung) committed in Switzerland.   The applicant's appeal (Beschwerde) against this decision was rejected on 2 October 1985 by the Review Chamber which found, inter alia, that the applicant had failed to motivate his appeal.   34.      Upon termination of the preliminary investigations the case-file was sent to the Public Prosecutor's Office (Staatsanwalt- schaft) on 2 October 1985.   The latter applied on 31 October 1985 for the continuation of the preliminary investigations in order to complete the case-file.   These applications were granted on 7, 15 and 19 November 1985.   The case-file was then transmitted to the Linz Court of Appeal on 3 December 1985 for decision on the prolongation of the applicant's detention.   35.      On 11 December 1985, upon application of the investigating judge and the Public Prosecutor's Office, the Linz Court of Appeal extended in camera the applicant's detention on remand for up to 15 months.   After recalling the offences of which he was suspected and, with reference to previous decisions, the danger of committing further offences and of fleeing, which in the Court's view could not be prevented by a less severe measure, it stated in addition that the applicant was further suspected of having incited another person to burn down a restaurant in Switzerland, causing damages of 300,000 SFr. The Court concluded that the investigations had not yet been completed on account of the voluminous materials.   36.      Following the requests of the applicant and J.M. for release from detention on remand the case-file was transmitted to the Review Chamber at the Salzburg Regional Court.   37.      On 2 January 1986 the Review Chamber dismissed the requests. At the deliberations a lawyer was present.   The Chamber found that according to the results obtained so far in the investigations the applicant was suspected of forgery as well as of having caused damages of up to 2 million AS to various financial institutions by issuing uncovered cheques.   With regard to the danger of absconding and of committing further offences the Chamber referred to the decision of 11 December 1985.   It noted that the situation had not changed and that no other more lenient measures would suffice to meet the purpose of detention on remand.   38.      Also on 2 January 1986 the applicant was heard by an investigating judge and confronted with a certain S.R.   A final interrogation of the applicant took place on 22 January 1986.   39.      The applicant's further appeal against the decision of 2 January 1986 was dismissed in camera on 22 January 1986 by the Linz Court of Appeal.   The decision states that it was taken "after hearing the Senior Public Prosecutor's Office" ("nach Anhörung der Oberstaatsanwaltschaft").   The Court found that if the applicant was released there would be a danger of his absconding.   Insofar as the applicant stated that he had no identity papers enabling him to travel to other countries, that in Switzerland criminal proceedings were pending against him, and that he was not permitted to enter Germany, the Court found that the applicant could illegally cross the border.   The Court further assumed a danger of committing further offences whereby it referred to five previous convictions of the applicant, in particular one by the District Court (Amtsgericht) of Stuttgart in Germany which had sentenced the applicant to 20 months' imprisonment on charges of fraud and forgery.   In view of the sentence to be expected in the case of conviction the Court of Appeal did not regard the length of detention so far as disproportionate.   It found that the grounds for detention on remand disclosed such intensity as to exclude other, more lenient measures.   40.      A petition for release, which the applicant addressed to the Constitutional Court (Verfassungsgerichtshof), was dismissed by that Court as inadmissible in a decision issued on 28 February 1986.           b.   Indictment and trial   41.      Meanwhile, on 26 February 1986 the preliminary investigations were closed and on 12 March 1986 the Salzburg Public Prosecutor's Office indicted the applicant on the grounds of partly attempted and partly completed aggravated professional fraud according to Section 147 para. 3 of the Criminal Code, as well as of having forged a particularly protected document.   42.      According to the bill of indictment, which numbered 17 pages, the applicant had drawn a number of cheques on various banks in Germany and Austria and given them to Ch.B. and J.M. to cash them in other banks in these countries.   The bill of indictment mentioned the applicant's previous two convictions on charges of fraud and of receiving stolen goods, respectively, and stated that he was being sought in the Federal Republic of Germany for nineteen instances of cheque fraud.   It referred to damages of 950,000 AS concerning completed fraud and 1,250,000 AS concerning attempted fraud.   In the bill of indictment the Public Prosecutor's Office stated that further investigations would be pursued in respect of the suspicion of arson and other instances of aggravated professional fraud.   43.      The applicant's objection against the bill of indictment was dismissed, on 11 April 1986, by the Linz Court of Appeal which found that the results of the investigations sufficed to suspect the applicant of having committed the alleged offences, and it therefore committed the applicant for trial.   44.      In a separate decision of 11 April 1986, upon application of the investigating judge, the Court of Appeal extended in camera the applicant's detention on remand for up to 17 months in view of the volume and difficulties of the investigations.   The Court referred to the bill of indictment of 12 March 1986 and found that no changes had occurred to the advantage of the applicant in respect of the findings of its previous decision of 22 January 1986.   45.      On 30 April 1986 the case-file was transferred to the trial judge who on 23 May 1985 ordered the hearing to take place on 11 June 1986.   On 5 June 1986 the applicant's lawyer stated that he would no longer represent the applicant after 11 June 1986.   46.      The applicant's trial commenced, and a first hearing took place, on 11 June 1986.   Thereafter, the hearing was adjourned.   Also on 11 June 1986, an official defence counsel was appointed.   47.      On 16 June 1986 the applicant requested his release from detention, claiming that he had permanent residence in Austria and confirmation of secure employment.   This request was dismissed on 25 June 1986 by the Salzburg Regional Court and upon appeal on 9 July 1986 by the Linz Court of Appeal.   Both courts referred to the reasons previously given.   The Court of Appeal further decided that detention on remand was no longer called for in respect of J.M. who had by then been remanded in custody for 25 months, though with regard to the applicant it found that no other, more lenient, measures could be employed.   According to its decision the Court of Appeal decided in camera "after hearing the Senior Public Prosecutor's Office" ("nach Anhörung der Oberstaatsanwaltschaft").   48.      On 24 July 1986 the Salzburg Regional Court contacted the Vienna Regional Court as to the date of release of Ch.B.   On 29 July 1986 a German court was requested to transmit a decision which arrived on 18 August 1986.   49.      Meanwhile, on 25 July 1986 the applicant filed a further request to be released from detention, claiming that he was economically and socially integrated and that he lacked the financial means to abscond.   This request was dismissed by the Salzburg Regional Court on 30 July 1986 and, upon the applicant's appeal, the Linz Court of Appeal on 20 August 1986, both of which referred to the reasons stated in previous decisions as to the grounds of detention.   The Court of Appeal gave its decision "after hearing the Senior Public Prosecutor's Office" ("nach Anhörung der Oberstaatsanwaltschaft").   50.      On 22 September 1986 letters rogatory (Rechtshilfeersuchen) were transmitted to the Swiss Federal Office for Police and to a German court in respect of the witness D.   The file was then sent to a forensic expert who prepared an expert opinion in respect of J.M. on 8 October 1986.   51.      The Salzburg Regional Court again decided in camera on 12 November 1986, with reference to the grounds given in previous decisions, not to release the applicant.   On 26 November 1986 the Linz Court of Appeal, "after hearing the Senior Public Prosecutor's Office" ("nach Anhörung der Oberstaatsanwaltschaft"), rejected the applicant's appeal.   The Court found that J.M. had considerably implicated the applicant who had not refuted the suspicion of his having committed the offences at issue.   The Court upheld the previous decision with regard to the grounds of detention finding that they were still valid and did not permit more lenient measures.   In view of the damages stated in the bill of indictment, exceeding one million AS, and the applicant's previous convictions of offences of the same type, the Court concluded that the length of detention was not yet disproportionate.   52.      Meanwhile, on 12 November 1986 the applicant unsuccessfully attempted to discharge his officially appointed lawyer.   On 17 November 1986 the applicant complained that no date had been fixed for a hearing.   This complaint was to no avail, as the authorities were awaiting evidence from Germany.   On 3 December 1986 a German court transmitted further evidence to the Austrian authorities as to the witness D.   53.      Following the applicant's complaints about his officially appointed lawyer, the Bar Association stated on 16 December 1986 that they saw no reason to appoint a new lawyer.   54.      On 12 and 16 December 1986 the trial judge requested the Dornbirn and Bregenz Constabularies to provide the addresses of Ch.B. and S.R.   A similar request in respect of Ch.   B. was filed with the Salzburg Federal Police Direction on 22 January 1987.   55.      On 28 January 1987 the Review Chamber at the Salzburg Regional Court refused the applicant's request of 21 January for release from detention.   56.      Upon the applicant's appeal the Linz Court of Appeal decided on 18 February 1987 to release the applicant.   It considered that after nearly 25 months of detention the danger of absconding and of committing further offences had substantially subsided and more lenient measures could be applied.   The applicant was released on condition that he pledged not to abscond or hide until the termination of the trial or to impede the investigations.   He was also ordered to take permanent residence in Austria and inform the Court thereof as well as to report every two days to the police.   Finally, the Court decided provisionally to withdraw the travel papers in the applicant's possession.   57.      On 9 July 1987 the Salzburg Public Prosecutor's Office indicted the applicant in respect of further instances of fraud.   The bill of indictment which numbered 9 pages stated that the applicant had, together with a certain S.R., attempted fraudulently to cash uncovered cheques, whereby the damages amounted to approximately 800,000 AS.   The offences concerned banks in Germany, Austria and Switzerland.   The bill of indictment was sent to the applicant on 17 July 1987.   The applicant's appeal against the indictment of 9 July 1987 was dismissed by the Linz Court of Appeal on 30 September 1987.   58.      On 30 September 1987 the Salzburg Regional Court partly granted the applicant's further complaint in that it decided that henceforth he had to report weekly to the police.   His appeal against this decision was dismissed on 4 November 1987 by the Linz Court of Appeal.   59.      On 22 February 1988 the hearing was fixed for 25 and 26 May 1988.   60.      On 26 May 1988 the Salzburg Regional Court convicted the applicant of aggravated fraud and sentenced him to four and a half years' imprisonment.   B.       Relevant domestic law   61.      The charges brought against the applicant concerned, inter alia, the offence of aggravated fraud which, according to Section 147 para. 3 of the Criminal Code, shall be punished with imprisonment lasting between one and ten years if the damage exceeds 100,000 AS.   62.      The Code of Criminal Procedure states in Section 180 paras. 1 and 2 that detention on remand is imposed if the accused is seriously suspected of having committed a criminal offence, and if there is a danger of absconding, collusion, or of committing a further offence. According to para. 3 of Section 180, a danger of absconding is not to be assumed if the accused is suspected of a criminal offence which will not be punished more severely than with five years' imprisonment; if the accused lives in orderly circumstances; and if he has a permanent residence in Austria, except if he has already attempted to abscond.   63.      Section 193 para. 4 of the Code of Criminal Procedure states that if the investigation is particularly voluminous or difficult the Court of Appeal can decide, upon application inter alia of the investigating judge, that detention on remand may last up to two years if it is ordered on the ground of a danger of collusion or for another reason, and if the offence at issue is threatened with a punishment which exceeds five years.   According to Section 193 para. 5 this time-limit for detention on remand no longer applies once the trial has commenced, as long as there are other grounds of detention than only the danger of collusion.   64.      According to Section 194 para. 2 of the Code of Criminal Procedure the detainee has at all times the possibility to request an examination as to the lawfulness of the decision to impose or to continue his detention on remand.   As a result, a hearing is conducted (Haftprüfungsverhandlung) before the Regional Court or the Review Chamber which, according to Section 12 of the Code of Criminal Procedure, is a chamber of that Court.   Section 195 of the Code of Criminal Procedure provides that at the hearing before the Regional Court or the Review Chamber the detainee is present.   He has the possibility of filing an appeal against the decision to the Court of Appeal.   65.      Section 180 para. 4 of the Code of Criminal Procedure provides that detention on remand may not be maintained where the purposes of the prisoner's detention can be achieved by one or several of more lenient measures mentioned in para. 5 of this provision.   These more lenient measures are, inter alia: the pledge not to flee or hide, or to leave one's residence without the investigating judge's permission; the pledge not to hinder the investigations; the order to reside in a specific place, or to avoid a locality, or alcoholic beverages; the order to notify changes of the place of residence; the temporary withdrawal of travel papers or of papers required to drive a vehicle; bail; and the provisional appointment of a probation officer. According to Section 190 release on bail is possible if the offence is not punished with a minimum sentence of ten years and if detention on remand is imposed on account of a danger of absconding.   III.    OPINION OF THE COMMISSION   A.       Points at issue   66.      The points at issue are   a)   whether there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention, in that the applicant's detention on remand exceeded a reasonable time;   b)   whether there has been a violation of Article 5 para. 4     (Art. 5-4) of the Convention, in that neither the applicant     nor his lawyer was present at the proceedings before the Linz     Court of Appeal concerning the prolongation of his detention on     remand and his requests to be released from detention on remand.   B.       Article 5 para. 3 (Art. 5-3) of the Convention   67.      Article 5 para. 3 (Art. 5-3), insofar as relevant, provides as follows:           "Everyone arrested or detained in accordance with the         provisions of paragraph 1 (c) (Art. 5-3-c) of this Article         ... shall be entitled to trial within a reasonable time or         to release pending trial.   Release may be conditioned by         guarantees to appear for trial."           a.   Compliance with Article 5 para. 3 (Art. 5-3) of the Convention   68.      The applicant was arrested on suspicion of fraud and remanded in custody on 11 January 1985.   During his detention he served a prison sentence from 26 April to 1 May 1985.   He was released from detention on remand on 18 February 1987.   The period of detention on remand to be considered under Article 5 para. 3 (Art. 5-3) of the Convention therefore lasted two years, one month and two days.   69.      The applicant maintains that this period of detention on remand was excessive as there were no valid reasons to assume a danger of his absconding or committing further offences.   70.      The Government emphasise the particular complexity of the proceedings.   There were also convincing grounds for suspecting the applicant of having committed the offences with which he was charged and for assuming a danger of his absconding and committing further offences.   Moreover, the applicant contributed to the length of his detention by frequently filing requests for his release.   71.      The Commission recalls that the reasonableness of the time spent by an accused person in detention up to the beginning of the trial must be assessed in relation to the very fact of his detention. Until conviction he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable.   Likewise, in determining in a given case whether or not the detention of an accused person exceeds a reasonable limit, it is for the national judicial authorities to seek all the facts arguing for or against the existence of a genuine requirement of public interest justifying a departure from the rule of respect for individual liberty.   It is essentially on the basis of the reasons given in the decision on applications for release pending trial and of the true facts mentioned by the applicant in his appeals that the question whether or not there has been a violation of the Convention has to be determined (Eur. Court H.R., Neumeister judgment of 2 June 1968, Series A no. 8, p. 37, paras. 4 et seq.).   Article 5 para. 3 (Art. 5-3) relates to persons charged and detained.   It implies that there must be special diligence in the conduct of the prosecution of the cases concerning such persons.   Even if the duration of the preliminary investigation is not open to criticism, that of the detention must not exceed a reasonable time (see Eur. Court H.R., Stögmüller judgment of 10 November 1969, Series A no. 9, p. 40, para. 5).   72.      The grounds relating to the public interest cited by the national judicial authorities may be very pertinent and sufficient to justify keeping a person in detention pending trial, but that does not free the authorities from their obligations under the Convention if they themselves are seen to have conducted the case in such a way as to entail an unreasonable prolongation of detention of the accused pending trial and thus inflicting on him in the interests of public policy a greater sacrifice than that which would normally be demanded of a person presumed innocent (see No. 8118/77, Schertenleib v. Switzerland, Comm. Report 11.12.80, D.R. 23 p. 190).   With the passage of time the grounds for detention will themselves diminish in pertinence when balanced against the right to liberty guaranteed by Article 5 (Art. 5) of the Convention of the person provisionally detained (see No. 12325/86, Kemmache v.   France, Comm.   Report, 8.6.90).   73.      The Commission has first examined the reasons given by the Austrian authorities when prolonging the applicant's detention on remand and refusing his applications to be released on bail.   74.      The Commission notes that the authorities suspected the applicant of having committed the offences of attempted and completed fraud, involving damages of up to 2 million AS, which according to Section 147 of the Austrian Criminal Code shall be punished with imprisonment lasting between one and ten years.   75.      In this respect the Commission recalls that the persistence of reasonable suspicion alone cannot suffice to justify a protracted period of detention on remand, such as in the present case.   The Commission must therefore examine the other grounds which persuaded the Austrian authorities to decide that the detention on remand should be continued, in particular whether they were "relevant" and "sufficient" (see Eur. Court H.R., B. judgment of 28 March 1990, Series A no. 175, para. 42; Matznetter judgment of 10 November 1969, Series A no. 10, p. 34, para. 12).   76.      The applicant claims that in his case there were not sufficiently concrete reasons for assuming a danger of his absconding or committing further offences.   He had the possibility of employment and residence in Austria and was socially integrated.   His previous convictions could not be sufficient justification.   Other, more lenient measures were called for.   Nevertheless, his requests for release on bail were refused.   77.      The Government submit that the primary responsibility for examining the grounds of detention on remand falls to the domestic authorities who, furthermore, need not in every decision mention every consideration of their examination.   With regard to the danger of the applicant committing further offences, the Government refer to the applicant's attempts to avoid prosecution by frequently changing his residence which he did not register with the authorities.   The Government also submit that even if the applicant's sister had on 26 February 1985 confirmed that he could live and work as a concierge in an apartment house belonging to her life companion, it could not be said that he had sufficient professional or social ties.   As regards the danger of absconding the Government refer to the applicant's previous convictions and to the fact that he was suspected of the offence of attempted and completed fraud.   Finally the Government emphasise that the authorities constantly examined the possibility of other measures instead of detention.   Bail was not considered in view of the applicant's apparent lack of financial resources.   78.      The Commission notes that in the present case the grounds given by the Austrian courts to justify the applicant's detention on remand were the danger that he might commit further offences and the danger of his absconding.   79.      As regards the danger of the applicant committing further offences, the Austrian courts considered that he had previously been convicted of offences of the same type and that he was not socially integrated and that he was without regular employment.   The Commission refers here to the decisions of the Salzburg Regional Court of 23 January 1985 (para. 24 above), of the Review Chamber at that Court of 27 February 1985 (para. 27 above), and of the Linz Court of Appeal of 19 June 1985 and 22 January 1986 (paras. 29 and 39 above).   80.      As regards the danger of absconding, the Commission recalls that the possibility of a severe sentence is not sufficient after a certain lapse of time to justify the length of detention (see Eur. Court H.R., Wemhoff judgment of 27 June 1968, Series A no. 7, p. 25, para. 14).   81.      In the present case the Aus