CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 janvier 1993

.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 }                            AS TO THE ADMISSIBILITY OF                         Application No. 20696/92                       by E.R.                       against Austria           The European Commission of Human Rights (First Chamber) sitting in private on 8 January 1993, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  G.B. REFFI              Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 19 June 1992 by E.R. against Austria and registered on 28 September 1992 under file No. 20696/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is an Austrian citizen born in 1957 and presently detained on remand in the prison of St. Pölten.         The applicant was arrested on 13 June 1991 and his subsequent repeated requests to be released were to no avail. On 25 June 1992 the Vienna Court of Appeal (Oberlandesgericht) rejected an appeal lodged by the applicant against a decision of 3 June 1992 by the St. Pölten Regional Court (Landesgericht), refusing his latest requests for release.         It is stated in the Court of Appeal's decision that the applicant is suspected of having, on a professional basis, and within a period of about three years, exercised fraudulent business activities causing some 8.2 million Austrian Shillings of damages to about 242 contract partners.   The Court of Appeal referred to an earlier decision of 24 March 1992 in which it was explained in detail that there were strong suspicions against the applicant.   It added that meanwhile further evidence had been obtained, in particular from witnesses H. and S.   This evidence and an expert opinion showed that the applicant had sold investment certificates (Wohnsparbriefe) pretending that the investors thereby acquired a participation in firms which he pretended would place the money in the apartment construction business while in reality not a single shilling was used for the alleged purpose.         The Court also considered that there was danger of absconding in view of the severe sentence which the applicant had to face and in view of the fact that on 18 March 1991 he had informed the competent authorities of a change of address.   His new address was in Luxembourg and there was not only suspicion that he would try to leave Austria, but also that he would try to continue his fraudulent activities abroad.         In the meanwhile an indictment has been filed and in his latest submission the applicant stated that the first hearing of the trial was to take place on 10 September 1992.   COMPLAINTS         The applicant complains that his latest request for release was decided by the first instance court on 3 June 1992 without hearing his defence counsel and without giving him the possibility to attend the hearing in person.   He further considers that his detention is unjustified and that its duration exceeds a reasonable time.   He invokes Article 5 paras. 1, 3 and 4 and Article 6 paras. 1 and 2 of the Convention.   The applicant also alleges that a letter from the Commission's Secretariat reached him after having been opened by the judge controlling his correspondence.   THE LAW   1.     The applicant first complains that his written request for release was decided without giving him or his defence counsel a possibility to attend a hearing.         According to the case-law of the European Court of Human Rights, the review of the lawfulness of detention as required by Article 5 para. 4 (Art. 5-4) of the Convention has to comply with both substantive and procedural rules of the national legislation and must moreover be conducted in conformity with the aim of Article 5 (Art. 5), namely to protect the individual against arbitrariness (cf. Keus judgment of 25 October 1990, Series A No. 185-C, p. 66, para. 24). Article 5 (Art. 5) does not necessarily require an oral hearing of the parties (cf. Neumeister judgment of 27 June 1968, Series A No. 8, p. 44, para. 24).   Depending on the particular circumstances the possibility of making written submissions in the context of an adversarial procedure may suffice   (cf. Sanchez-Reisse judgment of 21 October 1986, Series A No. 107, p.19, para. 51).   In the present case there is nothing to show that the applicant did not have the possibility to state reasons for his request or that in rejecting it the Austrian Court arbitrarily disregarded them.   The applicant has furthermore not shown that the principle of equality of arms was violated in his case.         It follows that there is no appearance of a violation of the provisions invoked by the applicant and this part of the application has to be rejected under Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.   2.     The applicant further complains of the length of his still continuing detention on remand which began on 13 June 1991. He invokes Article 5 para. 3 (Art. 5-3) of the Convention.         The Commission recalls that it is in the first place for 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 facts 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 applicant in his appeals, that the Convention organs are called upon to decide whether or not there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention (cf. Eur.Court H.R., Neumeister judgment of 27 June 1968, Series A No. 8, p.37, paras.4-5).         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 (see Eur. Court H.R., Stögmüller judgment of 10.November 1969, Series A No. 9, p. 40, para. 4).         The grounds relating to the public interest cited by the national judicial authorities may be sufficient to justify keeping a person in detention pending trial but with 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 to the person provisionally detained (cf. Eur. Court H.R., Toth, judgment of 12 December 1991, Series A no. 224, p.18 para. 67;   and Clooth judgment of 12 December 1991, Series A no. 225, p. 16 para. 36).         As to the reasons given by the domestic authorities the Commission considers that they justify the continued detention in view of the evidence against the applicant which strengthens the suspicion against him.   Also, the fact that the applicant had indicated an address in Luxembourg could reasonably lead the authorities to assume that there was not only danger of absconding but also a danger that the applicant would commit further offences.         As to the handling of the case by the authorities the Commission notes that the applicant himself has not alleged any particular circumstances tending to show that the authorities delayed the investigations.   In fact the matter seems to be of a complex nature, given the great number of victims and the period of about three years over which the suspected fraudulent activities were carried out. The Commission cannot in the circumstances find that the authorities did not actively pursue their investigations.         Assessing the period in question generally the Commission finds in view of the foregoing that the period of detention on remand in question does not appear to be unreasonable   such as to amount to a possible violation of Article 5 para. 3 (Art. 5-3) of the Convention.         It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para.2 (Art. 27-2) of the Convention.   3.     As to the alleged control of correspondence the Commission notes that the applicant has been in a position to return the application form and to submit all information and documents relating to his complaints.   It cannot in these circumstances be found that the applicant was in any way hindered in the effective exercise of his right under Article 25 (Art. 25) of the Convention to lodge and pursue the petition.         For these reasons, the Commission unanimously   1.     DECLARES THE APPLICATION INADMISSIBLE.   2.     FINDS that no action is required with regard to the       applicant's allegation that he has been hindered       in the effective exercise of his right of petition       under Article 25 (Art. 25) of the Convention.       Secretary to the First Chamber         President of the First Chamber         (M.F. BUQUICCHIO)                             (J.A. FROWEIN)