CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 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. 22289/93                       by Musa and Saime DEMIR                       against Austria           The European Commission of Human Rights (First Chamber) sitting in private on 29 June 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  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 7 July 1993 by Musa and Saime DEMIR against Austria and registered on 20 July 1993 under file No. 22289/93;         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   A.     Particular circumstances of the case         The first applicant, born in 1959, is a Turkish national. He is at present serving a sentence in the Hirtenberg Prison. The second applicant, his wife, born in 1958, is an Austrian national. She is residing in Vienna. In the proceedings before the Commission, they are represented by Mr. T. Prader and Mr. W. Goeritz, lawyers practising in Vienna.         The facts of the case, as submitted by the applicants, may be summarised as follows:         On 29 November 1992 the first applicant was arrested on suspicion of extortion. He was brought before the Vienna Regional Criminal Court (Landesgericht für Strafsachen) on 1 December 1992. On 3 December 1992 he was remanded in custody under Section 180 of the Code of Criminal Procedure (Strafprozeßordnung) on the grounds that there was a risk of collusion (Kollusionsgefahr) as well as a risk that he might commit an offence similar to the one he was suspected of (Tatbegehungsgefahr). In these and the following proceedings, the first applicant was assisted by Mr. Prader.         On 4 December 1992 the second applicant, the first applicant's sister in-law and one of his nieces asked the Investigating Judge (Untersuchungsrichter) for permission to visit the first applicant. The Investigating Judge refused without giving any specific reason.         On 7 December 1992 the Investigating Judge again refused the request by the second applicant for a permission to visit the first applicant on the ground that he had not yet been heard on the suspicion against him. The Investigating Judge noted that the applicants' right to exchange letters was not infringed.         On 16 December 1992 the Judges' Chamber (Ratskammer) at the Vienna Regional Criminal Court, referring to SS. 187 and 188 of the Code of Criminal Procedure, dismissed the applicants' appeal against the decisions of the Investigating Judge. The Judges' Chamber found that the right to visit had only been denied temporarily.         On 22 December 1992 the second applicant requested again for permission to visit her husband without success. It seems that she was again accompanied by other relatives of her husband, who did not receive permission to visit him either.         On 28 December 1992 the first applicant's defence counsel called the Investigating Judge and was told that permission would be granted after 8 January 1993, when a number of witnesses were to be heard.         On 5 January 1993 the Judges' Chamber dismissed the applicants' appeal of 28 December 1992 concerning the refusal to grant a permission to visit to the second applicant. The Judges' Chamber considered that the first applicant was under strong suspicion of having, together with accomplices, extorted money from Turkish restaurant owners or of having attempted to do so, respectively. One of the reasons for detaining him on remand was the risk of collusion. The Judges' Chamber further considered that the first applicant's right to receive visits had not been infringed as such, as the restriction only concerned visits by his wife. The Judges' Chamber stated that such a restriction was justified under Section 187 para. 1 of the Code of Criminal Procedure in particular with a view to the risk of collusion, which, according to the files, actually existed in the first applicant's case. As far as the applicants had invoked Article 8 of the Convention, the Judges' Chamber considered that any interference with the right to family life as prescribed in the above provision was justified under Article 8 para. 2. The decision of the Judges' Chamber was served on the applicants' lawyer on 18 January 1993.         As from 11 January 1993 the Investigating Judge allowed the second applicant to visit her husband.         On 24 March 1993 the Supreme Court (Oberster Gerichtshof) rejected a complaint by the first applicant under the Fundamental Rights Complaints Act (Grundrechtsbeschwerdegesetz) relating to the refusal of visits by the second applicant. The Supreme Court found that the above Act did only apply to decisions concerning deprivation of liberty.   B.     Relevant domestic law         Under Section 180 para. 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 his committing   an offence similar to the one he is suspected of.         Section 187 para. 1 of the Code of Criminal Procedure provides that remand prisoners may receive visits from all persons and may correspond in writing with all persons, provided that there is no danger that such persons may interfere with the purpose of the detention. According to para. 3 remand prisoners may receive visits as often and for as many hours as, given the need for surveillance, is feasible without disturbing the work of the prison personnel or the order in the prison. However, a remand prisoner may under no circumstances be denied the right to receive visits two times a week for a quarter of an hour.         Section 188 para. 1 states that decisions concerning the persons with whom the detainee may correspond and whose visits he may receive as well as the surveillance of correspondence and of visits are the responsibility of the Investigating Judge. The surveillance of correspondence may only be suspended if this can be expected not to interfere with the purpose of the detention.   COMPLAINTS         The applicants complain under Article 8 of the Convention that the decision by the Investigating Judge to prohibit the second applicant, during a period of six weeks, from visiting her husband, the first applicant, who was held in detention on remand, violated their right to respect for family life.   THE LAW         The applicants complain under Article 8 (Art. 8) of the Convention. They allege a violation of their right to respect for their family life.         Article 8 (Art. 8) of the Convention, so far as relevant, provides:         "1.   Everyone has the right to respect for his private and       family life ...         2.    There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society ..., for the prevention of disorder or crime, ..."         The Commission considers that the contested refusal by the Investigating Judge to allow the first applicant, who was detained on remand, to receive visits by his wife, the second applicant, during a period of six weeks, constituted an interference with the right to respect for their family life under Article 8 para. 1 (Art. 8-1).         Such an interference is in breach of Article 8 (Art. 8), unless it is justified under paragraph 2 of Article 8 (Art. 8-2) as being "in accordance with the law" and "necessary in a democratic society" for one of the aims set out therein.         As regards the lawfulness of the measure complained of, the Commission notes that the Investigating Judge, under Section 187 para. 1 and Section 188 para. 1 of the Code of Criminal Procedure, may refuse visits to remand prisoners by persons who may be expected to interfere with the purpose of the detention. The decision of the Investigating Judge is subject to appeal before the Judges' Chamber. The Commission is, therefore, satisfied that the refusal of visits in question was in accordance with Austrian law.         Moreover, the Commission finds that the interference served one of the legitimate aims listed in Article 8 para. 2 (Art. 8-2), namely the prevention of disorder or crime.         As regards the question whether the interference was "necessary in a democratic society", the Commission recalls that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts (Eur. Court H.R., Campbell judgment of 25 March 1992, Series A, no. 233, p. 18, para. 44).         The Commission notes that the Judges' Chamber in its decision of 5 January 1993 on the applicants' appeal against the decisions of the Investigating Judge found that the latter had refused to give the second applicant permission to visit the first applicant, because he was detained on the ground of a risk of collusion. The Judges' Chamber considered that, according to the file, the risk that the first applicant might abuse such visits was actually given.         The Commission further considers that the period involved was relatively short, namely six weeks. Furthermore the applicants had another means to communicate, namely the exchange of letters.         In these circumstances, the Commission finds that the interference complained of can reasonably be considered as necessary in a democratic society for the prevention of disorder or crime. Thus, the interference was justified under Article 8 para. 2 (Art. 8-2).         The application is, therefore, 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)