CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 22715/93                       by E. G.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN              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 19 August 1993 by E. G. against Austria and registered on 30 September 1993 under file No. 22715/93;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the Commission's decision of 17 January 1995 to communicate the application as regards the applicant's complaint concerning his alleged arrest during the hearing of 6 May 1992 before the Vienna Regional Criminal Court and to declare the applicant's other complaints inadmissible;        Having regard to the observations submitted by the respondent Government on 6 April 1995 and the observations in reply submitted by the applicant on 31 May 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1954, is an Austrian national.   He is a lawyer by profession, residing and practising in Vienna.   A.    The particular circumstances of the case        The facts of the case, submitted by the parties with regard to the remaining part of the application, may be summarised as follows.        On 6 May 1992 the Vienna Regional Criminal Court (Landesgericht) held a hearing concerning charges of intimidation (Nötigung), assault (Körperverletzung) and cruelty to animals (Tierquälerei) against the applicant, relating to an incident in road traffic in June 1991.        After the court had heard the applicant, several witnesses and two experts, the applicant requested to be assisted by counsel. The judge rejected this request on the ground that the applicant was experienced enough to present his defense. As regards the following events, the parties are in dispute:        The applicant states that the judge subsequently also refused to let him use the telephone in the courtroom to call a counsel. Therefore, he went to the door, opened it a bit and lent outside to ask a colleague, who was waiting there, to call a counsel for him. Thereupon, the judge, by setting off an alarm, called a security officer (Justizwachebeamter), whom he instructed to sit in the courtroom next to the door and to arrest the applicant, should he again try to leave. The security officer remained there until the hearing ended two and a half hours later.        According to the Government, the applicant left the courtroom, after his request to be represented by counsel had been rejected. The judge, concluding from the applicant's behaviour that he might abscond from the whole proceedings, told him to come back to the courtroom and threatened him with arrest. Since the applicant did not obey the judge's order, the latter alerted the security service. Only then the applicant came back to the courtroom. When the security officer appeared, the judge told him to wait outside the courtroom in order to be ready should an arrest be necessary. Well before the end of the hearing, the judge told him that he was no longer needed. The security officer thereupon returned to the guardroom.         The minutes of the hearing do not explicitly refer to this incident. However, they state that the applicant brought a motion challenging the judge for bias, inter alia on the ground that he had prevented him to call a counsel and had threatened to arrest him. The applicant further requested that the hearing be suspended until he got the assistance of a counsel, as in the circumstances, he did not feel able to plead his case.   The judge also rejected these requests.        Subsequently, the Regional Criminal Court heard an additional statement of the applicant. Moreover, the applicant made a number of requests for the taking of evidence, which were rejected by the court. At the end of the hearing the court pronounced its judgment, convicting the applicant for intimidation, assault and cruelty to animals and sentencing him to four months' imprisonment suspended on probation.        On 22 June 1992 the applicant, then represented by counsel, lodged an appeal on questions of law and fact (Berufung).   As regards the appeal on questions of law, he complained inter alia that the trial judge had rejected his request to be assisted by counsel.   He alleged that the judge had threatened to arrest him and had called a security officer to prevent him from leaving the court room.        On 19 October 1992 the Vienna Court of Appeal (Oberlandes- gericht), after having held a hearing in presence of the applicant and his counsel, dismissed the applicant's appeal. As regards his complaint that he was not allowed to call a counsel, the Court considered that the applicant was himself a lawyer and had been familiar with the charges against him.   Had he deemed it necessary, he could have come to the hearing with a counsel.        The decision was served on the applicant on 23 February 1993.   B.    Relevant domestic law        The Austrian Code of Criminal Procedure (Strafprozeßordnung) contains a number of provisions allowing the judge to have a suspect or an accused brought to court under warrant (Vorführbefehl). They include the following:        SS. 173 and 174 deal with the summons to a hearing before the investigating judge. S. 173 states that the suspect has to be summoned by a writ signed by the investigating judge. Inter alia it has to contain a warning that he will be brought before the judge should he fail to appear. S. 174 states that a written warrant is to be issued if the suspect fails to appear without a valid excuse.        S. 221 deals with the preparation of the trial and the summons to the trial. Paragraph 1 provides that the summons of the accused has to contain the warning that, if he fails to appear, according to the circumstances, the trial will either be conducted in his absence, or he will be brought to the trial under warrant; or, if this was not possible in time, the trial will be adjourned and he will be brought before the court.        S. 269 provides that, if the accused has not appeared for the pronouncement of the judgment, the presiding judge may order that he be brought before the court in order to attend it. Or he may order that the judgment be read out to the accused by a designated judge or that a copy of it be served on him.        S. 427 states that if the accused has failed to appear, the trial may be conducted in his absence, if the charge concerns only a misdemeanour, if he has already been heard and if the summons have been served on him personally. In this case, the judgment will be pronounced to the accused by a designated judge or a copy will be served on him (paragraph 1). If the trial cannot be held or continued in the absence of the accused, either because one of the above conditions is not fulfilled or because the court expects that a completely satisfactory establishment of the facts will not be possible in the absence of the accused, the court has to proceed according to S. 221 (paragraph 2).   COMPLAINTS        The applicant's remaining complaint concerns his alleged arrest during the hearing of 6 May 1992 before the Vienna Regional Criminal Court. He submits in particular that the judge, after he had gone to the door of the courtroom as he wanted to call a counsel, called a security officer, whom he instructed to sit down next to the door and to arrest him, should he try to leave.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 19 August 1993 and registered on 30 September 1993.        On 17 January 1995 the Commission decided to communicate the applicant's complaint concerning his alleged arrest during the hearing of 6 May 1992 before the Vienna Regional Criminal Court to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The Commission declared he remainder of the application inadmissible.        The Government's written observations were submitted on 6 April 1995. The applicant replied on 31 May 1995.   THE LAW        The applicant complains the he was unlawfully deprived of his liberty during the hearing before the Vienna Regional Criminal Court of 6 May 1992.        The Commission will examine this complaint under Article 5 (Art. 5) of the Convention which, so far as relevant, reads as follows:        "1.    Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:              ...              c.     the lawful arrest or detention of a person effected      for the purpose of bringing him before the competent legal      authority on reasonable suspicion of having committed an offence      or when it is reasonably considered necessary to prevent his      committing an offence or fleeing after having done so;"        The Government submit that the measure complained of did not amount to a deprivation of liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention. They point out that the restriction of the applicant's freedom of movement was only the consequence of a measure which was primarily aimed at avoiding a delay in the proceedings or the necessity to proceed in the absence of the accused. Referring to case-law of the Commission (No. 8819/79, Dec. 19.3.1981, D.R. 24 p. 158, 161) the Government argue that the measure at issue should not be considered as an arrest, as its purpose was not to deprive the applicant of his liberty. Moreover, the judge only threatened to arrest the applicant but his arrest was never actually ordered as he made no further attempts to leave the courtroom.        Further, the Government submit that in any case a deprivation of liberty was to be considered as lawful arrest under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. They rely on S. 221 para. 1 of the Austrian Code of Criminal Procedure, which provides that an accused, who fails to appear, may be brought to court under a warrant. The Government argue that it follows from the purpose of the provision - which obliges the accused to appear and enables the court to hear the case in his presence - that the power to have the accused brought to court includes the power to prevent him from leaving the courtroom during the trial. The opposite view would lead to absurd consequences, i.e. that the court would have to let the accused leave and to have him brought to court by force for a new hearing. Further, the power to prevent the accused from leaving follows from S. 427 para. 2 of the Code of Criminal Procedure, which states that the court shall proceed in accordance with S. 221, if the trial cannot be held or continued in absence of the accused. This is inter alia the case, if the court expects that a completely satisfactory establishment of the facts will not be possible without the accused. Finally, the Government refer to S. 269 of the Code of Criminal Procedure, which allows the judge to have an accused brought to court under guard to hear the judgment.        Eventually, the Government argue that the provisions of the Code of Criminal Procedure, concerning the way in which the trial is to be conducted, stipulate that in principle the accused shall be present. Thus, the judge's warning that the applicant would be arrested also constituted a step to secure the fulfilment of an obligation prescribed by law within the meaning of Article 5 para. 1 (b) (Art. 5-1-b).        The applicant submits that in establishing whether there was a deprivation of liberty, not only the duration and modalities of the restriction of movement have to be taken into account but also the effects of the measure on the person concerned and the arbitrariness of the measure at issue. He argues that the judges' assumption that he wanted to abscond from the trial was arbitrary, as it was clear in the circumstances that he only wanted to call a defence counsel, but did not intend to leave the courtroom.        The applicant contests the Government's view that his arrest in the courtroom can be based on S. 221 and S. 427 para. 2 of the Code of Criminal Procedure. In particular, the trial could have been conducted in his absence as he had already been questioned and all relevant facts had been established at the time when he was arrested. Further, the applicant argues that S. 221 has to be read in conjunction with S. 174, which requests a written warrant giving reasons. In his case the order was only given orally without any reasoning. Finally, he submits that his arrest cannot be based on S. 269. He argues that this provision enables the court to ensure that the accused gets the necessary information about the available remedies. Arresting him, who is a lawyer, appears arbitrary.        The Commission notes that, although the accounts given by the parties differ to some extent, the following facts are undisputed: During the hearing of 6 May 1992 before the Vienna Regional Criminal Court concerning charges of intimidation, assault and cruelty to animals against him, the applicant requested to be represented by counsel. Following the judge's refusal of this request, the applicant went to the door of the courtroom and opened it. According to the applicant he was only leaning outside, while in the Government's version, he actually left the room. It is again undisputed that the judge subsequently called the security service and instructed the security officer to arrest the applicant should he try to leave.        The Commission recalls that in proclaiming the right to liberty, paragraph 1 of Article 5 (Art. 5) is contemplating individual liberty in its classic sense that is to say the physical liberty of the person (Eur. Court H.R., Engel and Others judgment of 8 June 1976, Series A no. 22, p. 25, para. 58). In order to determine whether circumstances involve a deprivation of liberty, the starting point must be the concrete situation of the individual concerned and account must be taken of a whole range of criteria such as type, duration effects and manner of implementation of the measure in question (Engel and Others judgment, loc. cit., para. 59; Guzzardi judgment of 6 November 1980, Series A no. 39, p. 33, para. 92).        The Commission considers that the measure complained of has to be seen in the above factual context. The Commission attaches particular weight to the applicant's submission that he only wanted to call a counsel but did not intend to leave the courtroom. It appears, however, that the judge interpreted the situation differently and made the necessary arrangements to ensure that the applicant remain in the courtroom and attend the trial. However, there is no indication that the applicant wanted to leave in the further course of the hearing. On the contrary, he took an active part in the trial, exercising his defense rights in particular by making a number of requests for the taking of evidence. Thus, the judge, although he had threatened the applicant with it, never actually proceeded to his arrest. In these circumstances, the Commission finds that the measure complained of did not amount to a deprivation of liberty within the meaning of Article 5 (Art. 5) of the Convention.        It follows that the remaining part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)