CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 avril 1994

.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. 20055/92                     by Günter MOSER                     against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 13 April 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             Mrs. M.F. BUQUICCHIO, Secretary to the 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 15 May 1992 by Günter Moser against Austria and registered on 27 May 1992 under file No. 20055/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government, after two extensions of the time-limit, on 17 March 1993 and the observations in reply, after an extension of the time-limit, submitted by the applicant on 23 June 1993;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case, as they have been submitted by the parties, may be summarised as follows.        The applicant, born in 1955, is an Austrian national and resident at Neulengbach. When lodging his application he was detained at a prison in St. Pölten. Before the Commission he is represented by Mr. S. Gloß, a lawyer practising in St. Pölten.   A.    Particular circumstances of the case        On 24 August 1990 the applicant and his wife were arrested on the suspicion of having committed grave fraud. On 26 and 27 August 1990 the applicant's wife and the applicant, respectively, were taken into detention on remand. The Investigating Judge at the St. Pölten Regional Court found that there was a risk of collusion and of the applicant's absconding, pursuant to S. 180 para. 2 of the Austrian Code of Criminal Procedure (Strafprozeßordnung). In the ensuing criminal proceedings against him, the applicant was assisted by defence counsel.        On 5 September 1990 the Judges' Chamber (Ratskammer) at the St. Pölten Regional Court (Landesgericht) dismissed the applicant's appeal (Beschwerde) against the order of his detention on remand. The Judges' Chamber confirmed the risk of collusion and of his absconding, and also ordered his continued detention in view of the risk of a repetition of the offences concerned.        On 9 October 1990 the Vienna Court of Appeal (Oberlandesgericht) upheld the applicant's further appeal against the decision of the Judges' Chamber to the extent that the detention order was based on the risk of his absconding, and dismissed the remainder of the appeal. The applicant continued to be detained.        On 2 November 1990, 5 February and 9 August 1991 the Vienna Court of Appeal, on the basis of S. 193 para. 4 of the Code of Criminal Procedure extended the maximum period of the applicant's detention on remand to three months, one year and eighteen months, respectively. The applicant's wife likewise remained in detention on remand on the basis of court decisions taken parallel to those relating to her husband.        In the course of the preliminary investigations, the applicant was questioned by the Investigating Judge on 16 May, 4 and 23 October 1991.        On 29 October 1991 the St. Pölten Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment against the applicant and his wife charging them in particular with professional fraud which had caused a damage of almost AS 126 million. The accused objected to the indictment.        On 26 November 1991 the St. Pölten Regional Court (Landes- gericht), following a private hearing, dismissed the applicant's request for release. Referring to the indictment and the result of the investigations against them, the Regional Court considered that there was a strong suspicion that the applicant and his wife had committed fraud. The risk that the applicant would commit further offences continued to exist. The length of their detention on remand did not appear disproportionate to the sentence which they had to expect, namely imprisonment up to ten years.        On 10 December 1991 the applicant appealed against the decision of 26 November 1991. On 23 December 1991 the Vienna Senior Public Prosecutor's Office (Oberstaatsanwaltschaft) briefly commented on the question of the accused's committal for trial, and requested their continued detention on remand.        On 2 January 1992 the Vienna Court of Appeal, following deliberations in camera in the absence of both the prosecution authorities and the accused, committed the applicant and his wife for trial. Furthermore, the Court of Appeal dismissed the applicant's appeal against the decision of 26 November 1991. The Court of Appeal, having regard to the indictment and the results of the very detailed preliminary investigations, considered in particular that there was a strong suspicion that the applicant and his wife had defrauded various investment consultants and investors as regards an investment model and the solvency of a company, and caused damage of almost AS 126 million. There was a risk that the applicant being apparently very talented in defrauding other persons would commit further offences of the same kind, if released. In this respect, the Court of Appeal also noted that the applicant had previously been convicted of negligent bankruptcy.        On 4 February 1992 the Investigating Judge forwarded the criminal files to the Presiding Judge at the St. Pölten Regional Court. Thereupon, the Presiding Judge and the Public Prosecutor's Office requested the Vienna Court of Appeal further to prolong the applicant's detention on remand.        On 17 February 1992 the Vienna Court of Appeal, sitting in camera, granted the above request and ordered that the applicant's detention on remand could last up to twenty-two months. The Court of Appeal, having heard the Senior Public Prosecutor, confirmed the strong suspicion of fraud against the applicant. In this respect, the Court of Appeal referred in particular to the indictment and its decision of 2 January 1992. It noted that the investigations were particularly difficult and complex, there were meanwhile twenty-nine files, and the indictment comprised twenty-nine pages. Moreover, it was envisaged to start the trial on 1 June 1992.        On 16 April 1992 the Presiding Judge at the competent Chamber of the St. Pölten Regional Court decided that the trial against the applicant and his wife should take place between 19 May and 6 June 1992.        On 11 June 1992 the St. Pölten Regional Court convicted the applicant and his wife of grave fraud on numerous counts. The applicant was sentenced to eight years' imprisonment. The Regional Court found that they had defrauded sixty-six investors who had placed funds with them. The damage thus caused amounted to more than AS 37 million. As regards the charges of fraud on four further counts, the applicants were acquitted. The written version of the judgment was served upon the applicant on 16 July 1992.        On 27 October 1992 the Austrian Supreme Court (Oberster Gerichtshof), upon the pleas of nullity (Nichtigkeitsbeschwerden) lodged by the applicant and his wife, quashed the judgment of 11 June 1992, and sent the case back to the Regional Court. The Supreme Court found that at the trial before the Regional Court the contents of the files had not been fully read out.        On 25 November 1992 the Judges' Chamber at the Regional Court dismissed the applicant's request to be released from detention. The Vienna Court of Appeal dismissed his appeal on 29 December 1992.        On 9 February 1993 the Supreme Court dismissed the applicant's complaint that the Vienna Court of Appeal's decision of 29 December 1992 had violated his right to liberty. As regards the alleged violation of Article 5 para. 3 of the Convention, the Supreme Court found that, having regard to the enormous scope of the case, the length of the proceedings so far did not appear unreasonable. On the basis of a careful and critical examination of the files, the Supreme Court reached the conclusion that the courts involved in the case had not caused any considerable delays of the proceedings or otherwise acted negligently. The Supreme Court noted in particular that the full report of the competent police authorities on the charges against the applicant and his wife, contained in sixteen files, only reached the Regional Court in May 1991. The charges of fraud involved seventy victims of whom most lived abroad, and the investigations concerned numerous banking accounts and booklets. Moreover, the proceedings had partly also been conducted against the applicant's wife and partly against seven further suspects. The proceedings relating to the appeals lodged by the applicant and his wife against their continued detention had not prolonged the proceedings on the ground that the court of first instance had continued to work on the basis of photocopies or to parts of the files, prepared for its own use or for use by the Court of Appeal. There had been no delays at the trial stage, in particular, it took the Presiding Judge only about one month to prepare the trial, the judgment was pronounced on 11 June 1992 and the written version of the judgment was already served on 16 July 1992.        Meanwhile, in the course of the main trial proceedings before the St. Pölten Regional Court, the case had been assigned to Judge R. on 4 December 1992. On 17 December 1992 the case had been assigned to Judge W. on the ground that Judge R. had previously acted as Investigating Judge. In March 1993 Judge W., having examined the files, informed the President of the St. Pölten Regional Court that he had also been involved in the preliminary investigations at some stage. On 1 April 1993 the President decided that Judge W. as well as a further judge could not participate in the trial against the applicant. The case was assigned to Judge S. The applicant's motion to challenge Judge S. for bias was dismissed on 11 May 1993, his motion regarding a further judge was, however, successful. On 25 May 1993 the dates for the hearings in the applicant's case were fixed between 22 June and 22 July 1993. Following the trial, still in July 1993, the St. Pölten Regional Court again convicted the applicant of fraud and sentenced him to seven years' imprisonment. Upon the applicant's appeal, the Vienna Court of Appeal reduced his sentence to six years' imprisonment.   B.    Relevant domestic law        Under S. 180 paras. 1 and 2 of the Code of Criminal Procedure, 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.        According to S. 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 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. 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.        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.        The accused may lodge an application for release at any time (S. 194 para. 2). Under S. 194 and 195, such an application is to be examined by the Judges' Chamber (Ratskammer) of the Regional Court in a private hearing, in the presence of the accused and his lawyer.   COMPLAINTS   1.    The applicant complains under Article 5 para. 3 of the Convention about the length of his detention on remand. He submits in particular that the investigations against him could have been concluded earlier, and that the trial could have been fixed for February 1992.   2.    The applicant complains under Article 5 para. 4 of the Convention that, in the proceedings before the Vienna Court of Appeal leading to its decision of 2 January 1992, he was not heard personally. He also complains that the Vienna Court of Appeal, prior to its decision of 17 February 1992, did not hear him upon the request of the Presiding Judge and the Public Prosecutor's Office further to prolong his detention on remand.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 May 1992 and registered on 27 May 1992.        On 14 October 1992 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.        On 17 March 1993, after two extensions of the time-limit, the Government submitted their observations. The observations in reply by the applicant were submitted after an extension of the time limit on 23 June 1993. The applicant's representative supplied some further information on the outcome of the criminal proceedings on 1 February 1994.     THE LAW   1.    The applicant complains under Article 5 para. 3 (Art. 5-3) of the Convention about the length of his detention on remand.        Article 5 para. 3 (Art. 5-3), so far as relevant, provides as follows:        "Everyone arrested or detained in accordance with the      provisions of paragraph 1 (c) (Art. 5-1-c) of this Article      ... shall be entitled to trial within a reasonable time or      to release pending trial."        The Government consider that the length of the applicant's detention on remand was not unreasonable. They submit that the criminal proceedings against the applicant were particularly complex, and that there were no undue delays on the part of the Austrian authorities. They refer in particular to the finding of the Supreme Court in its decision of 9 February 1993.        The applicant submits in particular that the investigations against him could have been concluded earlier. He points in particular at the lengthy intervals between his successive questioning by the Investigating Judge. He considers that the trial could have been fixed for February 1992. His submissions also relate to his detention following his conviction on 11 June 1992.        The Commission notes that the applicant was arrested on 24 August 1990. As regards the period preceding his first conviction on 11 June 1992, the applicant's detention on remand within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention lasted one year and nine and a half months (cf. Eur. Court H.R., B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16, paras. 36-38).        The Commission recalls that it is in the first place for the national authorities to ensure that, in a given case, pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must examine all the facts arguing for or 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 question of 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 review the reasonableness of the length of detention (cf. Eur. Court H.R., Letellier judgment of 26 June 1991, Series A no. 207, p. 18, para. 35; W. v. Switzerland judgment of 26 January 1993, para. 30, to be published in Series A no. 254).        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 Convention organs must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty, and whether the domestic authorities displayed special diligence in the conduct of the proceedings (cf. Eur. Court H.R., Letellier judgment, loc. cit.; W. v. Switzerland judgment, loc. cit.).        The St. Pölten Regional Court and the Vienna Court of Appeal, in their respective decisions relating to the applicant's continued detention on remand, found that, on the basis of the preliminary investigations and later also the indictment, there was a reasonable suspicion that he had committed the offences in question. Their finding as to the risk that the applicant would commit further offences of the same kind was based on the professional nature of the applicant's conduct in respect of the offences he was charged with. The applicant's continued detention was thus based on sufficient and relevant grounds.        The Commission further recalls that the right of the accused in detention to have his case examined with particular expedition must not hinder the efforts of the prosecution authorities to carry out their tasks with proper care (cf. Eur. Court H.R., Tomasi judgment of 27 August 1992, Series A no. 241-A, p. 39, para. 102; W. v. Switzerland judgment, loc. cit., para. 42).        The Commission notes that the preliminary investigations started in August 1990, and the Public Prosecutor's Office preferred the indictment in October 1991, the investigations were thus completed within fourteen months.        In the ensuing proceedings, it took the Vienna Court of Appeal two months to commit the applicant and his wife for trial and, at the same time, decide upon his and his wife's continued detention on remand. The trial started four and a half months later, and they were convicted on 11 June 1992, i.e. approximately six months and one week later.        The Vienna Court of Appeal, in its decision of 17 February 1992, as well as the Supreme Court, in its decision of 9 February 1993, carefully examined the complexity of the case and the progress of the criminal proceedings against the applicant, and did not find any significant delay caused by the authorities.        The Commission notes that the charges against the applicant and his wife concerned aggravated fraud on seventy counts, the judgment of 11 June 1992 related to fraud committed to the disadvantage of sixty-six victims, mostly living abroad. The documents relating to the case filled twenty-nine files when the proceedings started before the Regional Court.        The Commission, having regard to the complexity of the proceedings, finds that the period of about fourteen months for completing the preliminary investigations does not appear excessive. In particular, the fact that the applicant's questioning upon the charges against him took place at different stages of the investigations does not, in itself, disclose an undue conduct of the proceedings. There is no indication that the approach of the authorities to the investigations was otherwise inefficient and unreasonable, and their conduct does not, on the whole, disclose any failure to act with the necessary diligence. Furthermore, there was no substantial delay in the proceedings before the St. Pölten Regional Court leading to the conviction of the applicant and his wife. The Commission also attaches weight to the fact that the authorities took recourse to photocopies or to parts of the files in order to pursue the main proceedings against the applicant and his wife pending the proceedings before the Court of Appeal regarding their detention on remand.        In these circumstances, the Commission considers that the period of the applicant's detention on remand prior to his conviction by the St. Pölten Regional Court on 11 June 1992 did not exceed a reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.        The Commission further observes that, should the length of the applicant's detention between the Supreme Court's judgment of 27 October 1992, quashing the applicant's conviction of 11 June 1992, and his conviction in July 1993 in the second set of proceedings be considered under Article 5 para. 3 (Art. 5-3) of the Convention, this period of less than nine months does not appear unreasonable, even bearing the length of his detention on remand in the course of the first set of proceedings in mind. In particular, as the first conviction had been quashed for a procedural error, the proceedings had to be completely repeated. At the beginning of the second set of proceedings, there were problems as to the composition of the Regional Court. Moreover, the applicant failed to point at any relevant delays on the part of the Regional Court.        It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains under Article 5 para. 4 (Art. 5-4) of the Convention about the alleged unfairness of the proceedings before the Vienna Court of Appeal relating to his continued detention on remand.        Article 5 para. 4 (Art. 5-4), provides that "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".   a.    The applicant submits that, in the proceedings before the Vienna Court of Appeal leading to its decision of 2 January 1992, he was not heard personally.        The Commission notes that, in accordance with the relevant provisions of the Austrian Code of Criminal Procedure, the applicant could take proceedings before the Judges' Chamber at the St. Pölten Regional Court to have the lawfulness of his detention on remand reviewed. He availed himself of this right several times, thus his requests for release were dismissed in September 1990 and November 1991, his further appeals with the Vienna Court of Appeal being unsuccessful.        The Commission recalls 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. In particular, the proceedings must ensure equal treatment and be truly adversarial (cf. Eur. Court H.R., Toth judgment of 12 December 1991, Series A no. 224, p. 23, para. 84).        The Commission notes that on 26 November 1991 the St. Pölten Regional Court, following a private hearing in the presence of the applicant, dismissed his request for release from detention on remand. The applicant appealed on 10 December 1991, and the Vienna Senior Public Prosecutor's Office, by submissions dated 23 December 1991, briefly commented on the question of the accused's committal for trial and requested their continued detention on remand. The Court of Appeal's decision to reject the applicant's appeal was taken in camera on 2 January 1992, without a representative of the prosecuting authorities being present.        In these circumstances, the Commission finds no appearance of discrimination against the applicant in the appeal proceedings which were decided upon written submissions of both the applicant and the Senior Prosecutor's Office. The written request made by the Senior Prosecutor's Office to continue the applicant's detention on remand did not contain any relevant aspect which was not covered by the applicant's preceding submissions upon appeal. Furthermore, the applicant who had been heard personally before the Regional Court, did not show to what extent a due presentation of his appeal required his personal appearance before the Court of Appeal.        In these circumstances, the Commission finds no indication that the review of the applicant's continued detention on remand did, on the whole, not comply with the requirements under Article 5 para. 4 (Art. 5-4) of the Convention.   b.    As regards the applicant's further complaint that the Vienna Court of Appeal, prior to its decision of 17 February 1992, did not hear him upon the request of the Presiding Judge and the Public Prosecutor's Office to prolong his detention on remand, the Commission notes that this set of proceedings concerned the extension of the maximum period of the applicant's detention on remand.        The Commission recalls that, in these circumstances, the appellate court does not itself decide upon the appropriateness or the necessity of keeping the accused in prison or releasing him, nor does it undertake a review of the "lawfulness of the detention". It confines itself to setting out a framework within which the investigating judge or the prosecuting authority is free to take decisions. Article 5 para. 4 (Art. 5-4) does not, therefore, apply to the proceedings in question (cf. Eur. Court H.R., Toth judgment, loc. cit., pp. 23-24, paras. 86-87).        Thus, no issues arise under Article 5 para. 4 (Art. 5-4) in this respect.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority          DECLARES THE APPLICATION INADMISSIBLE     Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                    (A. WEITZEL)